A jury on Tuesday decided that cosmetic giant Johnson & Johnson was negligent, failed to warn, ignored risks and intentionally failed to disclose the risks from using its baby powder thus causing a man’s fatal mesothelioma cancer in a trial held in Alameda Superior Court.
The six-week-long trial was streamed live courtesy of Courtroom View Network.
The 13-member jury awarded the plaintiff Anthony ‘Emory’ Valadez $18.8 million in damages for past and future pain and suffering, loss of life, anxiety, distress, medical treatment bills, and other detriments to the quality of life.
The verdict in the case had been delayed for a week from undisclosed circumstances.
The jury found that Johnson & Johnson was also responsible for product liability, failure to perform, that presented a substantial danger to the public, one that ordinary consumers would fail to recognize.
However, the accusation that J&J deliberately intended to deceive the public the jury voted “no.” The jury also decided J&J had not acted with malice and fraud.
Two co-defendants in the case Safeway and Target stores were mostly exonerated except the allegation of failure to perform (product liability). A J&J-created subsidiary LTL Management Company was not held liable.
Valadez sued Johnson & Johnson, Safeway, Target and LTL claiming exposure to talc powder for 23 years between 1998 and 2022 caused his mesothelioma.
He has pericardial mesothelioma, the rarest of three types of the disease. The other two are pleural and peritoneal mesothelioma. Doctors have given him probably a few months to live.
The company has faced 40,000 lawsuits nationally in recent years over its baby powder and stopped making the powder worldwide with talc, a mined mineral, switching instead to cornstarch in 2023 which researchers say is safe.
The company through its subsidiary LTL filed for bankruptcy in 2022 and later offered to settle the lawsuits for $9 billion after a federal appeals court rejected an earlier attempt to settle the claims. Bankruptcy stopped legal actions against the company. Plaintiffs nationwide want the bankruptcy protective status eliminated.
A U.S. bankruptcy court allowed the Alameda trial to proceed only because Valadez's short life expectancy. Even with this judgment, the monetary award will be delayed until the bankruptcy process is resolved.
Safeway, Walmart and Target stores were accused along with J&J of selling tainted baby powder to Valadez’s mother who then used it on the plaintiff.
As in previous cosmetic talc powder trials there has been agreement that it is not possible with 100% certainty to prove the powder caused the disease.
Superior Court Judge Richard Seabolt instructed the jury that a finding for the plaintiff required a judgment that the powder most likely caused the disease. At the end of the trial it seemed to come down to the question, if there is a small amount of asbestos in the powder, did it cause this disease and how dangerous is a small amount of asbestos?
Attorneys for both sides differed.
J&J officials steadfastly denied that there was any asbestos in the powder and said that it was pure. However, the U.S. Food and Drug Administration (FDA) in 2019 found trace amounts of chrysotile, one of several asbestos types in two of three samples of the powder. This caused J&J officials to recall 38,000 bottles from the market. Further testing revealed no asbestos, they said.
During the trial, defense attorneys appeared to concede there might have been trace amounts of asbestos found by the FDA in the powder, but that it would be so tiny at .00002% it would be akin to the same amount of asbestos all people normally breathe in through the open air---not hazardous and below the minimum amount set by the FDA.
Plaintiff attorneys said even a small amount is dangerous. Both sides agreed there is no known safe limit of asbestos exposure.
Five different principal types of testing of powder samples are done by labs. Through the heavy liquid separation method, TEM or transmission electron microscope, the SEM scanning electron microscope, PLM or polarized light microscopy and XRD or X-ray diffraction method.
Plaintiff expert witnesses have testified that heavy liquid and TEM were the best methods, XRD the least sensitive.
Heavy liquid involves using a spinning tube in which liquid is placed to separate heavier materials including asbestos fibers which settle at the bottom of the tube.
In past trials, plaintiff attorneys have accused company officials of avoiding the liquid separation method because they were afraid it would turn up asbestos fibers and opted instead for the XRD testing.
Defense attorneys consistently attacked the plaintiffs’ claims by stressing the rarity of Valadez’s illness. It was not logical, they said, that after millions of people worldwide used the powder and Valadez’s cancer was only one of 15 such diagnosed nationally, that the J&J powder could have caused it. They also called attention to his young age at 24, with a disease that mainly afflicts men in their 60s and 70s.
Mesothelioma has a long latency period. The time from asbestos exposure to illness can take decades.
The defense also attempted to pin the disease on possible exposure to asbestos from sources other than baby powder. Valadez’s step father had worked in construction sites where there could have been asbestos and Valadez had attended school in an old building.
Plaintiff attorneys portrayed such arguments as mere speculation.
Valadez and his mother Anna Camacho testified and both wept during the questioning recounting the agony of Valadez’s illness. The medical treatments, his difficulty breathing and the pain he suffered. A photo exhibited by plaintiff attorneys showed Valadez in bed sitting up bent over forward because it was the only way he could sleep due to the pain.
Valadez said he hoped his lawsuit would save others from having to go through what he had.
Attorneys for both sides presented expert witnesses, doctors and researchers for testimony. Important witnesses for the plaintiff included Dr. William Longo, a Georgia-based microscope researcher and Dr. Ronald Dodson, a Texas cell biologist. The defense presented Dr. Edwin Kuffner, J&J’s top product safety officer and Dr. David Weill, a Stanford University lung disease specialist.
The attorneys attempted to portray the other sides’ expert witnesses as well-paid mouthpieces making money off numerous courtroom appearances and twisting the facts.
Seabolt at the end of the trial thanked the jury for their service.
“Each of us has a right to a trial but it means little unless people like yourselves are willing to serve,” he said.