Oakland residents Marlin Eagles and his wife, Georgia, settled out of court with Johnson & Johnson on Thursday after a trial that only ran one day, in which the plaintiffs alleged that asbestos in the company’s baby powder caused Marlin’s mesothelioma cancer.
The amount of the settlement was undisclosed.
However, a jury in the same court awarded a plaintiff with mesothelioma $18.8 million in damages in a trial against J&J in July.
The trial in the Alameda Superior Court was streamed live courtesy of Courtroom View Network.
The trial began on Nov. 9 with opening arguments, but then was put on hold after a juror called in sick on Nov. 13. Two additional days passed without a resumption of the proceeding.
Eagles has mesothelioma, a form of cancer in which damaged multiplying cells attack the lungs, heart and other organs. It is a rare disease with 3,000 sufferers nationwide and is almost always fatal. There are three types, pericardial, pleural and peritoneal mesothelioma.
The disease has what is called a “latency period” and can take years from the time of asbestos exposure to the onset of illness.
Eagles, 81, was diagnosed with the disease in 2022.
Joseph Satterley Eagles’ attorney said that although a doctor had removed a good share of the cancer, it will reoccur and is a terminal illness. Satterley added that his client had suffered pain for most every day of 2023.
The complaint was filed against J&J and its subsidiary company LTL Management, as well as retailers Safeway and CVS, two outlets where Eagles allegedly purchased baby powder.
J&J created LTL in 2021 to deal with 40,000 lawsuits nationally in recent years over its baby powder alleging mesothelioma and ovarian cancer. J&J offered to settle the thousands of pending lawsuits against the company by offering a lump damages payment of approximately $9 billion.
The company stopped making the powder worldwide with talc, a mined mineral, and switched instead to using cornstarch in 2023, which researchers say is safe.
According to Reuters, J&J’s first attempt at using bankruptcy to resolve the litigation came in 2021 when it created LTL and placed the subsidiary in bankruptcy. That attempt was rejected in April of 2021 by a U.S. Appeals Court ruling that LTL was not in enough economic distress to be awarded bankruptcy protection.
A second attempt was rejected last August by U.S. Bankruptcy Judge Michael Kaplan in Trenton, New Jersey, for the same reason voiced by the appellate court.
Attorneys for the company indicated in a Bloomberg report a third attempt might be made to settle the lawsuits using bankruptcy protections and avoid the costly alternative of going through jury trials. Erik Haas, J&J’s worldwide president in charge of litigation, was quoted in the report saying, “We’re pursuing a consensual resolution.”
Baby powder is only a miniscule part of J&J’s pharmaceutical empire, which is overall worth approximately $360 billion. Yet the baby powder franchise has been seen as valuable to the company because of its long history beginning in 1894 and the bond of public trust it created with the public symbolized for decades by the imagined warm image of the mother and baby.
During opening arguments on Nov. 9 Satterley asked the jury to make a damages award to his client for thousands of dollars in medical bills, physical pain, mental suffering, loss of enjoyment of life, disfigurement, grief, anxiety, and emotional distress.
Satterley accused top J&J company officials of lying to the media about the dangers of the product, falsely portraying it as safe, ignoring scientific evidence there was asbestos in the powder, and trying to use its own science experts to twist the facts. Satterley said talc starts as a rock dug out of the ground by miners and is safe until it is ground up to be used as a cosmetic powder. Then it allegedly becomes dangerous.
Satterley said there is no known “safe” level of asbestos exposure.
Kim Bueno, the attorney for J&J, told the jury there is no link between the baby powder and cancer and that Eagles had likely been exposed to asbestos from working at an Oakland shipyard. She said numerous health organizations had identified no increased risk of cancer from baby powder including the U.S. Food and Drug Administration, which in 1986 determined there was no hazard and a warning label was not needed.
Asbestos includes the minerals anthophyllite, tremolite, actinolite, amosite, crocidolite and chrysotile.
In 2019 a trace amount of chrysotile was found in samples of the powder. Bueno said Johnson & Johnson voluntarily recalled the tainted powder even though not required to do so by the FDA. She added that J&J had switched to using corn starch instead of talc powder not for safety reasons, but because of declining talc sales.
Bueno said testing of miners and millers in Italy who dug the talc powder had revealed no increased risk of cancer. Nor had barbers who commonly use talc powder been found to be at increased risk.
Alameda County Superior Court Judge Jo-Lynne Lee presided over the trial.