Johnson & Johnson’s lawyers went on the attack Wednesday in the first California trial over talcum powder, even moving for a mistrial in the middle of opening statements.
“If ever a case existed for a mistrial,” said defense attorney Bart Williams, “this is it.” Minutes earlier, Williams had objected numerous times to plaintiff’s attorney Allen Smith’s remarks during his opening statement.
Los Angeles Superior Court Judge Maren Nelson declined to grant the motion “at this point” but admonished Smith, of The Smith Law Firm in Ridgeland, Mississippi, that he might have given the jury the wrong impression on the California standard for negligent failure to warn, one of two causes of action in the case.
The plaintiff, Eva Echeverria, who was diagnosed with ovarian cancer in 2007 at age 53 after decades of daily talcum powder use, claims Johnson & Johnson failed to warn its customers that using its talcum powder products in the genital area could raise their risk of getting ovarian cancer. She is asking for punitive damages.
The case is critical in the litigation over talcum powder in which thousands of women have brought lawsuits, most of which are in California, Missouri and New Jersey. Trials have so far been limited to Missouri, where juries have come out with six verdicts totaling $300 million and one defense win.
A U.S. Supreme Court ruling last month temporarily sidelined those trials, the last of which ended in a mistrial. Citing the June 19 ruling in Bristol-Myers Squibb v. Superior Court of California, Johnson & Johnson also has removed 1,300 talcum powder cases from Missouri state court to federal court. Some however have since been remanded.
Wednesday’s trial is the first in California over talcum powder. Smith and Mark Robinson, of Robinson Calcagnie Inc. in Newport Beach, are leading a plaintiffs’ trial team that also includes Michelle Parfitt, senior partner at Ashcraft & Gerel in Alexandria, Virginia, who is co-lead counsel in the multidistrict litigation over talcum powder pending in New Jersey federal court.
“This case is simple,” Smith told a jury of eight women and four men. “It’s about the defendant’s corporate image over human life.”
As he has in prior trials, Smith listed several internal documents that he says prove Johnson & Johnson executives knew about studies dating back to 1982 showing talcum powder’s links to ovarian cancer, but refused to place a warning on its bottles.
But Nelson has limited some key evidence that plaintiffs’ attorneys told jurors about in Missouri. This month, she granted a summary judgment motion, tossing another defendant from the case, Imerys Talc America Inc., the talcum powder manufacturer. Imerys has been in most of the Missouri trials.
She also has prohibited plaintiff’s attorneys from mentioning that Johnson & Johnson targeted African-Americans in its marketing or that talcum powder contained asbestos. Missouri jurors have heard both of those statements.
Williams and Manuel Cachán, both Los Angeles partners at Proskauer Rose, are formidable opponents: They’re the same lawyers who got the single defense verdict in March.
After moving for a mistrial on Wednesday, they told the judge that a technician on their legal team overheard a plaintiff’s attorney that morning tell another in the men’s bathroom something akin to, “Better to ask for forgiveness than ask for permission.” In court, the technician identified one of the lawyers as Scot Wilson, a partner at Robinson Calcagnie, who defended the remark. “It was just a joke,” he told the judge. “To characterize it other than that is outrageously false.”
In his opening statement, Williams told jurors the case was about something different than what plaintiffs’ lawyers portrayed.
“It’s about plaintiffs’ lawyers and their consultants trying to get you scared,” he said.
He called his opponent’s studies “incomplete” and an “inaccurate reflection of the evidence,” citing numerous other studies that have shown talcum powder doesn’t cause ovarian cancer. And he drew a distinction between his studies and those of his opponents, many of which focus on a correlation between talcum powder and ovarian cancer – not that it caused the disease.
It’s a strategy that Williams used in the trial that gave Johnson & Johnson its only defense win.
“Correlation or cause,” he told jurors on Wednesday. “That’s what this case is all about.”