'On the Verge of Tears': Jurors Were Caught Off Guard By J&J Talc Mistrial
The jurors said the expert testimony at times was overwhelming and noted that some of the legal tactics used by the lawyers may have backfired.
October 30, 2019 at 01:04 PM
7 minute read
The original version of this story was published on Daily Report
Jurors were shocked and on the verge of tears after a state judge in Georgia declared a mistrial nearly a month into a trial on whether Johnson & Johnson's baby powder caused a woman's ovarian cancer.
Fulton County State Court Judge Jane Morrison scrapped the trial on Oct. 8 and sent the jury home after the foreperson said they were hopelessly deadlocked, with 10 voting in favor of the daughter and estate of Diane Brower, and two voting for J&J.
Speaking upon condition of anonymity, three jurors—jurors 1, 3 and 6—recalled that the initial vote was five for the plaintiffs, four for the defense and three undecided. It eventually came down to one member, the foreperson, adamantly in favor of the defense, and another member who "vacillated" before once again siding with J&J.
"I would have to say we were shocked" at the deadlock, said one juror. "We were upset and on the verge of tears. We'd been in that courtroom nearly a month, and we wanted to resolve the issue."
Like many of the cases around the country involving claims that J&J's talc-based product can lead to cancer, the case was heavily reliant on expert witnesses and laden with references to scientific studies, research and the female reproductive system.
The jurors said the flood of information was beneficial, especially since none of them are scientists. But it was also overpowering.
Juror 1 said it was "valuable to have the witnesses there because it helped us to understand what the case was about, but it also went on too long because of the repeated summations we heard again and again."
Juror 6 said that, "At some points I couldn't even listen anymore. The numbers of studies, the testimony … at some point you just have to basically choose who to believe."
Many of the lawyers in the case have also faced off in previous trials. The plaintiffs were represented by R. Allen Smith of The Smith Firm in Ridgeland, Mississippi, co-leading a team including Ted Meadows and Leigh O'Dell of Beasley, Allen, Crow, Methvin Portis & Miles in Montgomery, Alabama, and Sharon Zinns and Robert Register in the firm's Atlanta office.
J&J's team was led by James Smith of Blank Rome in Philadelphia and included Debra Pole and Eric Schwartz of Sidley Austin in Los Angeles; Z. Ileana Martinez and Leslie Suson of Thompson Hine in Atlanta; and Mark Hegerty of Shook Hardy & Bacon in Kansas City, Missouri.
Part of the defense's strategy involved attacking the credentials, testimony and courtroom manner of the plaintiff's witnesses, and contrasting them with those J&J put on the stand.
Smith took particular aim at plaintiff's expert James Barter, a gynecologist-oncologist from Rockville, Maryland. Smith derided Barter's research as "junk science," and accused him of changing and manufacturing testimony to suit the plaintiffs' narrative.
The jurors said those attacks may have backfired.
"I was embarrassed for Dr. Barter, and I was very offended because I felt, when he was on the stand, that he was frustrated because he's a professional and should be treated like one," said Juror 3.
Juror 1 said she found Barter to be "very impressive. I just don't think the plaintiffs' attorneys realized he may have needed more prep. He was a little drained after all that time on the stand."
"It was kind of embarrassing to insult an expert on his delivery. I think it had the opposite effect. It gave us the opportunity to wonder, 'Why is he so derogatory toward this man,'" she said. "Yes, he was being paid but he wasn't a professional witness."
The jurors said they found defense experts credible.
"I think they all knew what they were doing because they'd testified before. They were a lot smoother and more controlled in their cross-examinations," said Juror No. 3.
Gynecologic oncologist Cheryl Saenz was unflappable under cross-examination and insisted that no evidence links the use of vaginal-area talc powder to ovarian cancer.
"I found Dr. Seanz to be very credible and professional, but I also found her to be a little bit arrogant," said Juror No. 6. "She seemed to enjoy dressing down the plaintiffs attorney. She was very clear-cut, but when she said she never asked her patients about [their use of] talc because it doesn't cause ovarian cancer, I wondered, 'Why wouldn't you want to consider that? What if you were wrong?'''
"It did seem like Dr. Seanz had total control," agreed No. 3. "You would have thought she was doing the cross-examining."
The jurors found defense expert Juan Felix, a pathologist at the Medical College of Wisconsin who has also previously testified for J&J, to be a formidable witness—for the most part.
"Of all the defense witnesses, I thought Dr. Felix came across very well," said No. 1. "But at one point, Mr. Allen Smith asked him about fiber talc and he said, 'What is that?' How could he not know what that is? As many times as he's been on the stand for Johnson & Johnson, surely he's heard that phrase."
Juror No. 6 also found Felix to be engaging.
"It was good to have a very energetic, charismatic defense expert. But he kind of undercut himself when he asked what fiber talc is," juror No. 6 said.
Once back in the jury room, the panelists said a key issue was the definition of "proximate cause," and the insistence by the foreperson that Brower's use of the baby powder must be deemed the sole cause of her cancer.
"We got really mired in the scientific questions, and she was adamant that we had to have the answers to these questions that the experts on the stand don't have," said juror No.1
"It wasn't collaborative, and it was very frustrating," said No. 6. "It was difficult to watch the process spiral and know that we may not get a verdict."
On Oct. 8, during the third day of deliberations, Fulton County State Court Judge Jane Morrison said she would dismiss the panel early and resume on Thursday, Oct. 10, in observance of Yom Kippur.
The jurors said the foreperson was upset and reiterated that she would not change her mind and offered to let the others vote her off the panel.
The jurors said they agreed to come back after the holiday to resume deliberations, but that afternoon Morrison asked whether they could reach a verdict, and the foreperson said "no." Morrison then declared a mistrial.
"I hadn't expected that; I was ready to raise my hand and ask the judge to poll the jury," said No. 6.
She said she wondered whether the foreperson misunderstood Morrison's question, "because we had agreed to come back Thursday."
She said she texted the foreperson afterward to ask whether she understood the question.
"She did not misunderstand at all," she said.
An overview of the jurors' comments was forwarded to James Smith and Blank Rome's Philadelphia office and to the plaintiffs' trial team. There was no reply from the defense counsel.
Beasley Allen partner Ted Meadows, co-lead counsel for the plaintiffs, said via email that, judging from posttrial conversation with the jury, "there seemed to be a commitment to return and reach a verdict, and it was evident that the ruling of a mistrial was as surprising and frustrating to the jurors as it was to us."
"We look forward to trying this case again and will continue to rely on decades of scientific evidence and internal company documents which prove not only that Baby Powder causes ovarian cancer, but that J&J has attempted to hide this from the public." Meadows said.
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