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Judge: Talc lawyers harassed Johnson & Johnson by leaking info to Reuters

Attorneys & Judges

By Daniel Fisher | Feb 6, 2020

John Simmons

NEW YORK (Legal Newsline) - The prominent asbestos law firm Simmons Hanly Conroy has been sanctioned by a New York judge for violating a protective order after it leaked the deposition of Johnson & Johnson CEO Alex Gorsky to reporters at the Reuters news service.

The unauthorized release of the videotaped deposition was timed to build on adverse publicity surrounding news the Food and Drug Administration had detected minute amounts of asbestos in Johnson’s Baby Powder. Reuters included excerpts from the videotaped deposition in an Oct. 22 article under the headline “Johnson & Johnson CEO testified Baby Powder was safe 13 days before FDA bombshell.” 

Johnson & Johnson recalled tens of thousands of bottles of baby powder before announcing that testing by outside labs found no trace of asbestos.

Simmons Hanly gave the videotape to Reuters within a 30-day window during which such materials are supposed to remain confidential so parties can review them for protected information, Judge Manuel Mendez ruled. Simmons Hanly didn’t immediately respond to a request for comment. In filings opposing sanctions, the firm said a Reuters reporter requested the deposition after seeing notice of it on an online docket and there was no reason to hold it back.

Judge Mendez disagreed. The unauthorized release “was frivolous and done to harass the defendants,” said Mendez, chief judge of New York’s specialized courts for asbestos lawsuits. He ordered Simmons Hanly to pay J&J’s legal fees and costs, which are to be determined after a Feb. 24 hearing. In the underlying lawsuit, one of many talc suits now pending on New York’s famously pro-plaintiff asbestos docket, Donald Minassian says he contracted cancer from using talc products.

“We respectfully await the judge’s ruling on what we believe was a serious breach of the legal process set forth by the court and agreed upon by the parties,” J&J said.

The sanctions illustrate a rare example of plaintiff lawyers being penalized for the common tactic of using publicity to propel mass tort litigation. Citing materials plaintiff lawyers obtained in discovery, Reuters has run a series of articles supporting claims that J&J’s talcum powder contains asbestos and company executives knew it. 

Johnson & Johnson says its products are safe and allegations that talc contains asbestos rest on incorrect analysis by highly paid plaintiff experts who make a living testifying in asbestos lawsuits. A Reuters spokesperson declined comment on the company’s coverage of the litigation. 

While plaintiff lawyers are relatively safe in providing information to news organizations like Reuters and the New York Times, they respond quickly when defendants discuss litigation in public. Simmons Hanly moved to force Gorsky to testify under oath after he appeared on “Mad Money With Jim Cramer” in December 2018 to try to allay investor concerns about talc litigation that had shaved $50 billion off the company’s market value. 

On the show, Gorsky said he wanted to “basically clear the record” about plaintiff claims. He cited epidemiological studies finding no correlation between talc and asbestos-related disease and said “internal and external teams” had never found asbestos fibers in the company’s products. Simmons Hanly argued Gorsky’s comments demonstrated he had “unique personal knowledge” important to the case, especially for deciding whether J&J should be liable for punitive damages for recklessly selling a product it knew or should have known was dangerous.

A special master overruled J&J’s arguments that Gorsky was no more knowledgeable than other executives about the scientific allegations in talc litigation and ordered his deposition. The CEO was questioned on videotape on Oct. 3, 2019, and less than three weeks later Reuters published an article based upon the deposition, which was still under the 30-day protective order.

Johnson & Johnson moved for sanctions on Nov. 4, saying plaintiff lawyers abused the discovery process “to collect source material for an extrajudicial media campaign” that had no relevance to the case but could serve to prejudice the jury pool in future trials. This tactic fit the New York definition of “frivolous,” J&J said, which includes conduct intended to delay litigation or harass the defendant.

Simmons Hanly, in response, dismissed J&J’s “indignant accusation” it was trying to “poison the jury pool” and described J&J’s complaint as “rather hypocritical given that Mr. Gorsky went on national television to spin J&J’s version” of the case. 

“It is interesting, in that regard, that J&J asks the Court to restrict only plaintiffs’ interactions with the news media, while J&J would presumably remain unfettered in publicly commenting on the litigation as it pleases,” the law firm said. The law firm didn’t acknowledge a role in the New York Times and Reuters articles supporting its allegations, describing them as “investigative reports.”

The fact Simmons Hanly lawyers were able to convince a special master to order Gorsky to testify in one of thousands of lawsuits plaintiff attorneys have filed over talc demonstrates the serious risks executives take if they say anything at all about pending litigation. Some states prohibit lawyers from hauling top executives into court to testify about facts lower-level employees are more qualified to discuss, but New York courts have more liberal rules about who can be ordered to give a deposition.

Alton, Ill.-based lawyer John Simmons, whose firm was once the nation's leading filer of asbestos litigation, merged with Hanly, Conroy, Bierstein, Sheridan, Fisher & Hayes in July 2014, and have offices stretching from coast to coast. 

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