LOS ANGELES - Mock jurors returned a verdict in favor of a fictitious plaintiff who worked at a talc mining and milling facility 50 years ago, but unlike real court judgments awarding men and women millions in economic damages and recently billions in punitive damages, this jury of nine awarded less than $1 million, all in, to the mesothelioma victim and his wife.
They did not, however, reach their decision unanimously, remaining split on whether “Willamette Talc” knew or reasonably should have known that its talc was "dangerous or was likely to be dangerous when used or misused in a reasonably foreseeable manner" - a question that is playing out in courts across the country with at least four plaintiffs' verdicts to one defense verdict involving mainly Johnson & Johnson baby powder and talc producer Imerys.
Thursday's mock trial was held in the "Champagne Room" at the posh Beverly Wilshire via a HarrisMartin asbestos litigation conference. And while the comfortable setting was not at all like what most austere courtrooms are like, the lawyers who put on the case are real practitioners in this relatively new frontier of asbestos litigation.
Plaintiff attorney Jessica Dean, of Dean Omar & Branham of Dallas - whom jurors identified post-trial as one of the most persuasive - provided opening statements, hammering Willamette for rigging tests, deceiving users and failing to inform that asbestos was in its talc.
Other plaintiff attorneys participated at various stages of the condensed trial on behalf of “Steve Kanto,” who had worked as a plant manager at Willamette from 1967 to 1975, then 50 years later developed pleural mesothelioma.
"(Willamette) didn't value life enough...and Steve (Kanto) needs your help," Dean said. "Mesothelioma is not curable, but it is preventable."
Cosmetic talc asbestos claims are growing in courts across the country with results mostly going in favor of plaintiffs. The most recent verdict came out of St. Louis City Circuit Court on July 12 where jurors walloped Johnson & Johnson - the only defendant at trial - with a $4.69 billion judgment - $550 million in compensatory damage and $4.1 billion in punitive damages for 22 women who claimed their use of baby powder caused them to develop ovarian cancer.
Bloomberg reported that before trial, a unit of Imerys SA settled the claims of these 22 women for at least $5 million
The St. Louis verdict was rendered in the court of Circuit Judge Rex Burlison - the same judge who has presided over other ovarian cancer claims and resulting multi-million judgments against Johnson & Johnson in the last couple of years.
And then on May 28, in Los Angeles Superior Court, jurors awarded an Oregon woman suffering from pleural mesothelioma $21.75 million in compensatory damages and $4 million in punitive damages. According to CNN, jurors held Johnson & Johnson 66 percent liable for the compensatory damages and all of the punitive damages. The other liable defendants at trial included Honeywell/Bendix, Borg Warner and Fel-Pro.
In the Beverly Hills mock trial – which was presided over by a real judge, LAOSD Coordination Judge Brian Currery of Los Angeles - defense had argued that 40 percent of peritoneal mesothelioma in men is due to unknown causes.
Willamette lawyers argued that Kanto’s cancer was in his abdomen, however there were no “markers” of asbestos in likelier places, such as the lungs - and no evidence of elevated levels of asbestos.
Jurors identified Williamette attorney Brendan J. Gaughan, of CMBG3 in Boston, as the most persuasive on the defense side.
In closing arguments, Gaughan emphasized that asbestos exists naturally in the environment, that the Food and Drug Administration says that cosmetic talc is safe and that the Environmental Protection Agency allows certain levels of asbestos in drinking water.
"Why would they do that if it is so unsafe?" Gaughan said. "We know that mesothelioma is not caused by trace levels of asbestos."
Other attorneys for Willamette focused on thousands of studies done on its talc showing no signs of asbestos, and even if raw talc did contain low levels of asbestos, it would not be enough to cause mesothelioma.
Plaintiff's counsel responded that more sophisticated testing measures were available but the company chose not to pursue more rigorous testing.
While the mock jurors did not award massive compensatory and punitive damages like their real life counterparts have, they were not prompted with a suggested amount.
In the end, jurors were mostly split 5-4, plaintiff to defendant, on the nine questions listed on their jury form, but as the mock trial proceeded through normal stages of direct and cross examination to closing, they weighed in on whether they favored plaintiff, remained neutral or favored defendant.
Interestingly, after Dean's opening for the Kanto, 44 percent favored plaintiff and 56 were neutral. After Gaughan presented closing for Willamette, 34 percent favored plaintiff, 22 percent were neutral and 44 percent favored defendant.
At the trial’s conclusion, jurors were sent to deliberate in a conference and an audience of asbestos plaintiff and defense attorneys watched the “sausage making” through a live video feed of their discussion.
Aside from the mock verdict reinforcing what other real juries have been doing in courts in California, St. Louis and New Jersey, the effect of cosmetic talc litigation may pose another dire consequence for talcum powder miners and product makers. When jurors were asked how many would use talcum powder going forward, only three raised their hands.