A jury in Louisville, Kentucky decided Aug. 2 that Johnson & Johnson and Colgate-Palmolive were not responsible for the mesothelioma that wrongfully killed a woman, after both companies were alleged to have caused the deadly asbestos cancer with their asbestos-tainted talcum powder products. (Legalnewsline.com)
According to media reports, the jury decided that baby powder was not a major factor in causing Donna Hayes’ mesothelioma. They also found that Johnson & Johnson did not fail to use care while manufacturing baby powder, and unsafe conditions in the production of the product were not a substantial factor in the plaintiff’s death.
The jury consisted of 12 members, and nine ruled that both companies were not at fault. The trial was almost one month long and was streamed live on the Courtroom View Network.
Baby Powder Cancer Trial Started July 17
The July 17 trial was the first talcum powder cancer trial in Kentucky against J&J for its famous baby powder, and Colgate-Palmolive for a product called Cashmere Bouquet. The baby powder trials is just the second time the companies have been co-defendants. The other trial in early 2019 was a case in California that found in favor of the plaintiff.
Donna Hayes’ family sued both J&J and Colgate-Palmolive, claiming the powder products she used for decades caused her to get mesothelioma. This is a usually fatal cancer caused by asbestos exposure that affects the lining of the lungs and other organs. Of the hundreds of personal injury lawsuits pending across the country against Johnson & Johnson, most are filed by women who say baby powder products caused them to be diagnosed with ovarian cancer. But cases involving mesothelioma, a rarer disease, are becoming more common.
Hayes passed away from mesothelioma in December 2016.
J&J Attorneys Say Baby Powder Not the Cause
During Aug. 2 closing remarks, J&J attorney Morton Dubin said both J&J and Colgate were wrongly accused. Dubin said hundreds of millions of people use products with talcum powder in them, but there is not a ‘rash of mesothelioma cases.’ There are approximately 3,600 new cases of mesothelioma diagnosed each year.
Dubin noted the FDA closely watches for possible safety problems with talcum powder products in the consumer market and takes regulatory action if required. He added the plaintiffs did not have proper scientific data to prove J&J products cause cervical cancer.
He also attacked the expert testimony of Drl. William Longo, from a laboratory in Georgia. Longo is a materials microscope researcher, and has been a key plaintiff witness. Dubin also said clinical studies done by the National Institute for Occupational Safety and Health have not shown any traces of asbestos in talcum powder samples.
The Quality of Testing Methods to Detect Asbestos
A key issue in this baby powder cancer trial was whether the asbestos testing methods used during the 1970s and 1980s were effective enough. J&J critics contend the company should have been using a new asbestos testing technique in the 1970s known as concentration. This is a pre-screening technique where heavy liquid is utilized to separate the talc from heavier material before it is looked at under a microscope.
J&J officials did not use this method, saying it was ineffective. But Longo said it is an effective way to test for asbestos in talcum powder. But Dubin noted in his concluding argument the test results were flawed because the concentration was unable to find chrysotile, which is one of the six types of asbestos.
The defense attorney said Longo failed to do transmission electron microscopy work without concentration to determine if chrysotile was in the sample. He asked why did the researcher not run another analysis type? Dubin also noted that Dr. John Hopkins, a defense witness and an R&D director for J&J from 1976,-2000, used J&J baby powder on his body and on those of his children.
Dubin added that FDA stated there was no health hazard from baby powder and there was no need for a product warning label. Also, studies of talc mined in Italy, Vermont and China did not find any mesothelioma cases among miners.
Plaintiff’s Attorney Argued J&J Was Responsible for ‘Painful Death’
Joseph Satterly, the talcum powder cancer lawyer for the Hayes family, argued that the woman died a ‘painful death’ because J&J failed to adhere to a pledge to pull the product from the market if any studies found traces of asbestos. He added that a J&J executive in the 1970s was aware there was tremolite in talcum powder. Tremolite is a dangerous type of asbestos.
Also, he noted a materials testing lab in Ohio as early as the late 1950s found fibrous talc, tremolite and amphiboles in talcum powder. Satterly also showed an inter-office memo from Johnson & Johnson that stated there was tremolite present in a sample of talc and this led him to think the talc was from Italy.
This was confirmed, Satterly noted, from a Colorado School of Mines report in 1971. It concluded that tremolite had been found in the talcum powder samples.
The attorney for the family also charged a testing laboratory in Illinois of faking reports to show FDA there was no asbestos present in the talcum powder samples. He added that anyone who offered criticism of J&J was attacked personally and suffered professionally.
Further, the attorney said J&J always had a safer alternative to talcum powder – corn starch. But company executives were slow to consider using the substance until the late 1970s.
Satterly also blasted defense witness Brooke Mossman, a researcher from Vermont. He said her lack of testing of talc undermined anything she said under oath. He concluded by saying there was ‘overwhelming evidence’ to support punitive damages against both consumer healthcare companies.
But the jury did not see it that way.
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- Kentucky Court Decides in Favor of J&J and Colgate Palmolive in Talcum Powder Trial. (2019). Retrieved from https://legalnewsline.com/stories/512872623-kentucky-court-decides-in-favor-of-j-j-and-colgate-palmolive-in-talc-powder-trial