Jury finds Johnson & Johnson liable for $29.4 million in woman’s mesothelioma suit

By John Sammon | Mar 13, 2019

ALAMEDA – A jury on Wednesday handed baby powder maker Johnson & Johnson a $29.4 million verdict deciding that asbestos in the company’s baby powder had caused plaintiff Terry Leavitt to develop the deadly disease mesothelioma.

Coverage of the trial is being streamed live courtesy of Courtroom View Network.

Leavitt sued Johnson & Johnson alleging its talc baby powder was tainted with asbestos which caused her disease, a deadly and incurable cancer of the linings of the lungs. Leavitt has a biphasic stage of mesothelioma, a more aggressive form of cancer in which most sufferers die within a few years of diagnosis.

Almost all the way down the line, Johnson & Johnson was found liable, that the company’s baby powder was a contributing factor in Leavitt’s illness, that the baby powder product had failed to perform safely, that the company failed to warn consumers of the potential risk of its product, and that failure to warn caused Leavitt harm. The verdict also found the company intended to conceal risk that was a factor in Leavitt’s harm.

The jury decided the company did not engage in malice or fraud.

Also found negligent was Johnson & Johnson’s talc supplier Cyprus Minerals. Talc powder supplier Imerys Talc America was withdrawn earlier as a co-defendant after the company declared Chapter 11 bankruptcy.

The damages were for medical expenses, pain and suffering, loss of enjoyment of life, humiliation, loss in income and income lost in the future among others.

Of the total, $5 million was awarded to Leavitt’s husband Dean McElroy for similar losses including the loss of his spouse.

Johnson & Johnson was found to be 98 percent to blame while Cyprus was determined to be 2 percent at fault and Imerys Talc America zero. Cyprus was absolved of product liability.

The trial was unusual in that it is one of the few asbestos-related trials held in the Bay Area, a source of many of the lawsuits against Johnson & Johnson. Previously most such trials had been held in Los Angeles.

The two-month-old trial saw attorneys for the plaintiff including lead counsel Joseph Satterley of the Kazan, McClain, Satterley & Greenwood law firm based in Oakland make a case that Johnson & Johnson deliberately disregarded evidence that the talc powder had asbestos in it, engaged in a conspiracy to defraud and endanger the public, and altered science and documentary records - for profit.

Attorneys for the defense of Johnson & Johnson led by Michael Brown of the law firm of Nelson, Mullins, Riley & Scarborough based in Columbia, S.C., maintained that Leavitt’s mesothelioma was “spontaneous” in nature, contracted for no known reason and not a result of using baby powder. They contended that J&J’s product was free of asbestos and safe.

During the trial each side presented their own star witnesses.

A top defense witness was John Hopkins, a British toxics researcher and director in the research and development arm of Johnson & Johnson from 1976 to 2000. Today, he runs his own consulting firm. Hopkins told the jury Johnson & Johnson had consistently exceeded industry standards and employed exhaustive around the clock testing of their talc powder product both in labs in-house and through the use of outside facilities such as the McCrone Group in Illinois.

The plaintiffs’ attorneys called Dr. William Longo, a Georgia-based researcher and electron microscope specialist with the MAS lab. Longo said asbestos had been found in Johnson & Johnson baby powder and that the company declined to use more sensitive testing methods such as “concentration,” a pre-screening method developed in the 1970’ using heavy liquid to separate talc from asbestos particles.

Plaintiff’s attorneys contended the company avoided using concentration because they were afraid of what the more sensitive technique might find.

Defense attorneys countered that concentration was not accurate and that government agencies such as the Food & Drug Administration (FDA) had also declined to use it.

Terry Leavitt, her mother Susan and husband Dean McElroy appeared as witnesses. Leavitt, 52 at the time of her diagnosis in 2017, is a resident of Fremont and the mother of two teenage girls. She recounted her ordeal starting with back pain she thought could be cured by simple surgery only to learn she had mesothelioma after doctors discovered a mass in her right lung. At times fighting back tears, Leavitt described the excruciating pain after undergoing major surgery to remove the malignancy, the sickening chemotherapy treatments that left her exhausted and the heartbreak of likely having to lose her family.

Doctors conceded the treatments including newly developed immunotherapy medications to be applied in the near future remain not a cure, but at best a life prolonging tactic.

Central issues during the trial included debate about cleavage fragments, crushed particles of minerals, and whether they are asbestos in nature or not. Satterley said it has not been proven that cleavage fragments are non-toxic, whereas Brown contended cleavage fragments do not qualify as fibers and are not asbestos.

Asbestos fibers are generally longer than they are wide by a three-to-one ratio. They have flexibility and tensile strength that makes them valuable as an ingredient in building materials, but also allows them to reach and reside in the deep parts of the human lung.

Plaintiff’s attorneys made the case that smaller amounts of asbestos called “trace amounts” could have escaped detection by microscopes and X-ray technology commonly used in the 1970’s and 80’s, making its way into the baby powder bottles. They said there is no known safe limit for exposure.

Defense attorneys contended the product was asbestos free and pure.

Alameda Superior Court Judge Brad Seligman presided.   

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