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Same day, different verdicts: Why do some juries think there is asbestos in talcum powder and others don't?

By John O'Brien | May 22, 2019


Longo  

NEW BRUNSWICK, N.J. (Legal Newsline) – Judges continue to play a crucial role in the sprawling, possibly multibillion-dollar talcum powder litigation facing Johnson & Johnson by choosing how jurors will view the plaintiffs’ key expert.

On Tuesday, jurors in New York City handed down a $25 million verdict against the company, finding that its Baby Powder contained the asbestos that caused a woman’s mesothelioma. But on the same day in a different case in South Carolina, jurors found the opposite. So what gives?

In the NYC case, the company had unsuccessfully asked to disqualify plaintiffs witness Dr. William Longo, on whose determination that Baby Powder contained asbestos much of the plaintiffs’ cases rely.

In South Carolina, the company was able to argue Longo lied on the stand about when he started testing baby powder and misled the parties involved about where he obtained one of his samples.

“Unlike a similar case in New York where the jury did not hear critical information regarding false testimony by the plaintiff’s central testing expert, this South Carolina jury heard that information and unanimously concluded that Johnson’s Baby Powder does not contain asbestos and was not the cause of the plaintiff’s disease,” the company said.

The company attacked Longo’s motivations in court records, calling his opinions “made-for-litigation.” Its recent strategy is to question the source of one of his Baby Powder samples – the father of a lawyer who files talcum powder lawsuits.

Lawyers at Levy Konigsberg successfully fended off this strategy in the NYC case, claiming Longo did not know of the connection until March of this year.

“Not only has J&J thoroughly examined Dr. Longo about these samples and his testing of them, J&J has had a full and fair opportunity to examine the samples. Despite ample opportunity to produce new evidence that the samples were compromised, J&J has not done so,” they wrote.

Longo has admitted that he has made more than $30 million through the years by offering mostly pro-plaintiff testimony.

Longo also testified he hadn’t tested for asbestos in cosmetic talc before 2017 when he had actually tested some earlier this century and found it didn’t contain asbestos, J&J claims.

In the South Carolina case, it also argued Longo’s testing methods could not detect the different between minerals that are asbestos and those that are not and that he could not create a link to Baby Powder actually used by the plaintiff because those samples were not available to test.

“Not only does such speculation fail to meet the requirements of expert testimony, but it is highly prejudicial and likely to confuse a jury, especially when presented authoritatively as expert testimony,” J&J wrote.

It is the fifth defense verdict in recent months, J&J claims. The company still faces a few $20 million-plus verdicts, not to mention the whopping $4.7 billion verdict from St. Louis awarded to 40 women.

The company is appealing all of these, citing “significant evidentiary errors.” Longo’s testing will continue to be debated in courtrooms across the country. Forty-five of his samples came from the Johnson & Johnson corporate museum and others have come from sources like sellers on eBay.

Altogether, Longo found that 71% of Baby Powder samples he tested contained amphibole asbestos.

“Dr. Longo’s testimony regarding air and bulk sampling has been admitted by courts on numerous occasions,” Christopher Swett of Motley Rice argued in the South Carolina case.

“His methodology for the testing of talc for asbestos is accepted and undisputed by the defendants, whose own experts use and endorse the method.

“Differences in interpretation of what constitutes ‘asbestos’ are between the experts and a matter for the jury to determine.”

From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.

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Johnson & Johnson Levy Konigsberg Llp Motley Rice

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