Jury box. 2-9-11. Photo by Jason Doiy… (Jason Doiy)
California jurors who awarded $417 million on Monday in a talcum powder trial may well have been influenced by three new pieces of evidence, including an emailed photo that arrived just as the trial started, according to plaintiffs’ attorneys in the case.
The jury, in Los Angeles Superior Court, handed up a verdict awarding Eva Echeverria $70 million in noneconomic damages and $347 million in punitive damages after finding that Johnson & Johnson failed to warn that its baby powder could cause her to get ovarian cancer. ALM monitored the jury verdict through Courtroom View Network, which covered the trial. Echeverria was diagnosed with ovarian cancer in 2007.
Thousands of women have brought lawsuits making similar claims, most of which are in California, Missouri and New Jersey. Plaintiffs’ attorney Allen Smith, of The Smith Law Firm in Ridgeland, Mississippi, has handled all six of the previous trials, five of which were in Missouri. A seventh never went to a jury after the judge granted a mistrial. Juries hearing cases linking talcum powder to cancer have previously announced four plaintiffs’ verdicts, coming to a total of $300 million in awards, the highest of which was $110 million.
Smith credited Monday’s award to three new pieces of evidence that other jurors hadn’t heard before:
• Evidence that baby powder products made by other companies sold at Walmart and Dollar Tree had warnings on the bottles about the risks of ovarian cancer. Plaintiffs’ lawyers found out about the labels after a client of Ted Meadows, a principal at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Alabama, one of the members of the trial team, emailed a photo of one such warning to them just before the Los Angeles trial began. “That was very much news to us,” Meadows said. “The way it played out in trial, I think it was news to J&J.”
• Evidence that two individuals involved in the Cosmetic Industry Review, which has deemed talcum powder to be safe, had received payments from Johnson & Johnson for speeches and other engagements. Smith said he discovered the payments while cross-examining the group’s former director, Alan Andersen, who was a defense witness.
• Evidence that a Johnson & Johnson epidemiologist, Dr. Douglas Weed, had been sanctioned in a separate case in North Carolina over lying under oath about whether he had notes to his expert report, plaintiffs attorneys said.
“J&J brought these unbelievable and non-credible witnesses on an issue so important like this,” Smith said. “Couple that with the fact other companies are warning and have been warning for eight to 12 months now. That was new evidence that was very compelling.”
Spokeswoman Carol Goodrich declined to address the specifics of the case. She said in a statement: “We will appeal today’s verdict because we are guided by the science, which supports the safety of Johnson’s baby powder. In April, the National Cancer Institute’s Physician Data Query Editorial Board wrote, ‘The weight of evidence does not support an association between perineal talc exposure and an increased risk of ovarian cancer.’ We are preparing for additional trials in the U.S. and we will continue to defend the safety of Johnson’s baby powder.”
At the start of trial, Johnson & Johnson’s lawyers objected numerous times to plaintiff attorney Smith’s opening statement and sought a mistrial minutes later.
Johnson & Johnson was represented by Bart Williams and Manuel Cachán, both Los Angeles partners at Proskauer Rose, the same lawyers who in March got the only defense verdict over talcum powder.
The new evidence that came into the California case could play a role in the next talcum powder trial, which is set for Oct. 16 in Missouri.
“We certainly think it is evidence that should be presented, and we’ll make every attempt to do so,” Meadows said.