Trial in Santa Monica mesothelioma case settles two days into case

By John Sammon | Mar 27, 2019

SANTA MONICA  - A trial to decide if plaintiff Gail Koretoff should be awarded damages for the Jonson & Johnson baby powder she claimed was contaminated with asbestos causing her to develop mesothelioma was settled out of court on Wednesday after only two days of deliberations.

No details of the settlement were given. Requests for comment by attorneys for the plaintiff and the defense went unreturned.

The trial was streamed live courtesy of Courtroom View Network.

Mesothelioma is a deadly disease of the linings of the lungs and is caused by exposure to asbestos fibers which can take decades from first breathing to the onset of illness called a “latency period.” There is no cure and sufferers usually have a life expectancy of only a few years after diagnosis.

During opening remarks on Monday, Koretoff’s attorney Jeffrey Simon of the law firm of Simon, Greenstone & Panatier based in Dallas, Texas, told the jury Johnson & Johnson had sold a product that was deceptively dangerous.

He said the company had deliberately misled consumers to protect its baby powder product and from the 1970s on had formed a defensive posture in denying the danger and that inter-company documents would show company officials were concerned about the possibility of litigation.   

The attorney for Johnson & Johnson, Mel Bailey of the Austin, Texas office of the King & Spalding law firm, countered that there was no conspiracy to hide anything and that its baby powder product never contained asbestos.

Bailey portrayed the plaintiff attorneys as ignoring the years of no findings of asbestos in the baby powder by independent labs hired by Johnson & Johnson to do testing like the McCrone Group lab in Illinois, and government organizations like the Food & Drug Administration (FDA).

On Tuesday, Anneilla Koretoff the mother of Gail Koretoff, recounted for the jury her daughter’s ordeal with the disease which started as simply a complaint about a stomach ache. Doctors later discovered a malignancy in the lung. In addition, it was found Koretoff had developed pleural plaques, deposits of collagen fibers in the lungs considered an indicator of asbestos exposure.

Koretoff underwent major surgery to remove the malignancies and six rounds of chemotherapy plus radiation treatments at the University of California, Los Angeles.

On Wednesday, Dr. James Webber, an Oregon-based environmental researcher called by plaintiff attorneys, testified on the nature of asbestos and the strengths and weaknesses of the various testing methods to detect it.

The hearing was discontinued for the afternoon session with an announcement that a settlement in the case had been made.  

Two of the major points of contention between attorneys for the plaintiff and for the defense in past asbestos trials involving Johnson & Johnson has been the method of testing particularly in the 1970s and '80s to determine the purity of talc, a  mineral mined for Johnson & Johnson from mines in Italy, Vermont and more recently South Korea.

Plaintiff attorneys contended the techniques, including use of X-rays to determine the nature of a crystal combined with microscope scrutiny was not sensitive enough to detect smaller amounts of asbestos called “trace amounts.”

Critics said Johnson & Johnson should have employed “concentration,” a pre-screening method developed in the 1970s in which talc powder is spun in a tube separating it (talc floats to the top) from heavier materials, which are then studied under a microscope.

Johnson & Johnson officials decided not to use the method saying it was inaccurate and could not spot chrysotile, one of the most common forms of asbestos. Defense attorneys noted the FDA had also declined to use the concentration technique.

Another issue has been cleavage fragments, broken pieces of minerals and whether they are toxic or not. Plaintiff attorneys have contended they are, while defense attorneys maintain they are a separate category and not asbestos.              

Thousands of more cases against Johnson & Johnson alleging injuries from alleged asbestos exposure are still pending in courts. In New Jersey, plaintiff verdicts have been high. There have been verdicts of $117 million and $37 million.

In neighboring Pennsylvania, a Philadelphia judge recently dismissed a plaintiff's lawsuit after refusing to let her expert testify. Without experts to testify to a link between talc and asbestos-related cancers, plaintiffs' cases fall apart.

Also, a California jury earlier this month hit the company with a $29.4 million verdict in another mesothelioma case. The potential liability has forced J&J's talc supplier Imerys Talc America into bankruptcy.

However, a jury in mesothelioma case in the New Jersey Superior Court for Middlesex County on Wednesday decided in favor of Johnson & Johnson, that it was not liable for the development of a man’s mesothelioma. Defense attorneys in that case said toxic cement in the man’s native country of Peru was the likely cause of his disease.   

California Superior Court Judge Chester Horn presided at the Santa Monica hearing.

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