LOS ANGELES – A jury is unable to decide if plaintiff Carolyn Weirick's long-term use of Johnson & Johnson's baby powder caused her to develop mesothelioma, an incurable fatal lung cancer.
The deadlock was announced Monday by Los Angeles Superior Court Judge Margaret Oldendorf, who said the 12-member jury was “hopelessly” split on a verdict and that further deliberations would be fruitless.
The announcement came after five days of deliberations and the substitution of two alternate jurors which still failed to develop a consensus in the case.
The lead attorney for Weirick, Jay Stuemke of the Texas-based law firm of Simon Greenstone Panitier PC, did not respond to requests for comment and neither did Johnson & Johnson lead defense attorney Chris Vejnoska of the Orrick law firm in San Francisco.
Brad DeJardin of the Dentons law firm in Los Angeles represented co-defendant Imerys Talc America, a San Jose mining firm that supplied Johnson & Johnson with its talc powder.
Coverage of the trial was streamed courtesy of Courtroom View Network.
Hundreds of cases are still pending in court against Johnson & Johnson across the country from women who mostly claim that the J&J talc powder caused them to develop ovarian cancer.
Mesothelioma is a far rarer disease with about 3,200 cases reported per year in the U.S. The life expectancy of someone with mesothelioma is usually not more than five years.
Weirick, 59, the mother of three young boys, worked as a lobbyist, realtor and educational therapist before being diagnosed with mesothelioma in 2016. Her mother Leilani testified during the trial that she used Johnson & Johnson baby powder on her daughter beginning when she was an infant.
Weirick testified that she continued to use the product during her adult life. She recounted for the jury the shock and horror she experienced when she found out she had the disease, and the pain of undergoing massive surgery. She withheld from her sons the serious nature of her illness attempting to spare them grief.
Stuemke asked the Court to award Weirick $28 million in damages to include future suffering.
Also testifying was Weirick’s former nanny Elvira Escuvero, a native of Peru who Weirick later married. Stuemke asked the Court to award Escuvero $3 million for her suffering because of the illness of her spouse.
From the beginning of the trial on Aug. 20 Stuemke argued that Johnson & Johnson officials avoided the truth that their baby powder contained asbestos to protect the company’s image and profits. He said the defendants engaged in selective cherry picking of science and twisting the facts, bringing in highly paid professional witnesses to say what the company wanted them to say.
Defense attorneys maintained Weirick’s disease had been contracted as a “spontaneous” event and as a result of a prior family history of cancer, not through long-term use of baby powder. They said their product was clean of asbestos and argued that none of the miners who had dug up talc at mines in Vermont and Italy had ever contracted mesothelioma.
Both sides brought in expert witnesses and cited the findings of doctors and researchers, for the plaintiff including Dr. William Longo, a materials electron microscopist with the MAS lab in Georgia, Dr. David Jablons of the University of California San Francisco and an asbestos expert Dr. Arnold Brody.
Witnesses for the defense included Dr. Matthew Sanchez of the RJ Lee Group, a materials testing lab in Pennsylvania, John Hopkins a former toxicology expert for Johnson & Johnson and Dr. David Weill, a Stanford-based researcher.
Three key points were continually disputed, the issue of cleavage fragments, mineral particles that result when talc rock is quarried to be turned into powder and whether the fragments contained asbestos or not. Another was asbestos-related minerals such as tremolite and anthophyllite, found under microscope in samplings of talc powder, and whether they were asbestiform or non-asbestos in nature.
A third point of contention was the testing methods and how effective they were including use of the transmission electron microscope (TEM), polarized light microscope (PLM) and X-ray diffraction, the latter used to obtain information about the structure of a crystal.
The defense contended Johnson & Johnson had done exhaustive testing of its talc for purity both in-house and at independent labs and had followed industry standards.
Stuemke countered that new technology developed in the 1970s called “pre-concentration,” greater separation screening of talc powder before testing, would have been more effective in spotting particles of asbestos in talc. He alleged Johnson & Johnson avoided using the new technology afraid that asbestos would be discovered in their powder and hurt their business.
According to a Courtroom View Network Sept. 24 report, Johnson & Johnson spokesperson Kim Montagnino said the company would seek a retrial and looked forward to proving its baby powder product did not contain asbestos and has been used safely for 130 years.
Two other trials are currently in progress alleging that J&J baby powder caused cancer, one in Los Angeles County and a second in New Jersey.