Jury Returns Defense Verdict in Third Post-Pandemic Ovarian Cancer Talc Trial

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On September 27, 2021, after 18 days of trial and a mere hour of deliberations, a City of St. Louis, Missouri jury rendered a defense verdict in favor of Johnson & Johnson (“J&J”) on claims of three women diagnosed with ovarian cancer. Forrest v. Johnson & Johnson, et al., No. 1522-CC00419-02 (Mo. Cir. Ct., St. Louis Cty.). Notably, in 2018, a City of St. Louis jury returned a staggering $4.7 billion verdict in favor of 22 woman who claimed that J&J’s asbestos-contaminated talcum powder caused their ovarian cancer. 

This latest verdict is the third defense verdict in J&J’s favor since trials resumed after the COVID-19 pandemic shutdown courts around the county. It comes on the heels of similar findings from jurors in Philadelphia, Pennsylvania and St. Clair County, Illinois. Notably, all three defense verdicts were delivered in jurisdictions ranked among the top ten national Judicial Hellholes by the American Tort Reform Foundation (Philadelphia ranked No. 1 in the 2020-21 report, the City of St. Louis ranked No. 7, and St. Clair County, Illinois ranked No. 8).  And while each trial came with its unique hurdles, J&J has been able to prevail to date on the underlying message that science does matter.

Illinois Ovarian Cancer Talc Defense Verdict

 On July 30, 2021, J&J scored its first post-pandemic win in St. Clair County, Illinois when the jury unanimously found that its talc products were safe and did not contain asbestos.  Cadagin v. Johnson & Johnson, No. 18-CV-1821 (Ill. Cir. Ct., St. Clair Cty.).

There, the plaintiff alleged that her aunt used J&J’s Baby Powder and Shower to Shower products for over 40 years and died of ovarian cancer at 62. At trial, plaintiff’s counsel argued that J&J knew of scientific studies concluding that talcum powder products posed an increased risk of causing ovarian cancer and accused J&J of engaging in a “marketing double down” in response to the studies. The jurors were asked to award between $10 and $50 million in compensatory damages.

In the midst of trial, Judge Christopher Kolker held J&J in contempt of court after one of its corporate witnesses who testified at trial failed to appear for cross-examination in person due to personal health issues and offered to appear via Zoom instead. The court struck the testimony of the witness, Dr. Susan Nicholson – J&J’s vice president of women’s health.

Against that ruling, J&J focused its strategy on the science. Its experts questioned plaintiff’s novel theories and emphasized that a product applied outside of the body could not simply travel and remain latent inside the body for the 15-20 years latency period between exposure and decedent’s ovarian cancer diagnosis.

This strategy proved effective as the jury, after five hours of deliberation, returned a defense verdict opening a streak of victories that are gripping national attention and the attention of plaintiff’s bar.

Pennsylvania Ovarian Cancer Talc Defense Verdict

Less than two months later, Pennsylvania’s first ovarian cancer talc trial came to a similar end. On September 24, 2021, after six weeks of trial and two days of deliberations, a Philadelphia jury unanimously decided in J&J’s favor in Kleiner v. Johnson & Johnson Consumer Inc., No. 2:21-cv-03366 (Ct. Com. Pl., Phila. Cty.).

There, the plaintiff alleged that she was diagnosed with ovarian cancer after using J&J’s personal hygiene talc products for 35 years. Plaintiff named Imerys (J&J’s talc supplier) and Rite Aid (the seller of J&J’s talc products) as additional defendants.  As the only non-settling defendant, J&J was prohibited by the court from mentioning any of the dismissed defendants at trial.

Despite these obstacles, J&J prevailed on a two-fold trial strategy: the company emphasized the lack of any scientific evidence that would the link between its talc powder and ovarian cancer and it stressed alternative causation, pointing to plaintiff’s genetic predisposition to ovarian cancer. This is a landmark Pennsylvania decision out of a jurisdiction known for its pro-plaintiff verdicts.

Missouri Ovarian Cancer Talc Defense Verdict

Only three days later, on September 27, 2021, a Missouri jury returned yet another win for J&J in Forrest v. Johnson & Johnson, et al., No. 1522-CC00419-02 (Mo. Cir. Ct., St. Louis Cty.).

Forrest, tried in the same court that witnessed the headline grabbing $4.7 billion verdict against J&J in 2018 involved consolidated claims of three plaintiffs diagnosed with ovarian cancer between 2009 and 2013. The plaintiffs alleged habitual lifetime use of J&Js Baby Powder and Shower-to-Shower talcum powder products. The plaintiffs relied heavily on experts to support their theory that talc particles could travel up the fallopian tubes to cause ovarian cancer. The jurors were asked for $923 million in damages, including $230 in punitive damages for each plaintiff.

J&J argued at trial that the women’s claims were undermined by the fact that they each suffered from different types of ovarian cancer. Pointing to those discrepancies, J&J focused on the flaws in plaintiffs’ experts’ methodology and relied on the extensive testing and regulatory approvals that its products underwent.

Take-aways

 The three trials are sure to provide blueprints for a successful trial defense strategy in the ovarian cancer talc cases. Those cases stand apart from the typical talc liability cases involving plaintiffs who claim that they developed mesothelioma by inhaling talc particles allegedly contaminated with asbestos. In the ovarian cancer cases, the jurors are clearly grappling with plaintiffs’ theory that talc particles applied outside of the body can somehow travel and remain latent inside the body often for decades before the onset of the disease. The winning defense arguments rely heavily on expert testimony and focus on debunking plaintiff’s scientific theories. The Illinois, Pennsylvania, and Missouri defense verdicts suggest that the post-pandemic jurors may have returned to the courtroom with an acute appreciation of details rooted in science.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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