FRANKFORT, Ky. (Legal Newsline) - A Kentucky appeals court ordered a new trial in the case of a deceased woman who claimed she contracted cancer from talcum powder, saying it was improper to allow a Johnson & Johnson witness to testify that he and his family used Johnson’s Baby Powder for decades.
The Kentucky Court of Appeals on Jan. 29 rejected other plaintiff motions to reverse the verdict, including a complaint that the trial judge had unfairly rejected the admission of an article by a trio of plaintiff experts who play a vital role in supporting the idea that cosmetic talc contains dangerous amounts of asbestos. Johnson & Johnson denies its products contain asbestos, although it is removing talc-based powders from the U.S. market in response to litigation.
In the Kentucky trial, Johnson & Johnson offered John Hopkins, a toxicologist worked for various J&J units from the 1970s to the 1990s, as its representative. He told jurors about his personal use of the product in part to rebut plaintiff claims J&J should pay punitive damages for knowingly selling a dangerous product.
Lawyers for the family of the late Donna Ann Hayes objected to the testimony but the trial judge allowed it in, saying it was “relevant to show intent, motive, bias.” Defense lawyers referred to Hopkins’ testimony in closing arguments, saying if J&J was reckless, “how can that be true when you’re using it on your own kids?”
“Dr. Hopkins’ personal choice to use J&J’s talc products had no bearing upon J&J’s mindset,” Judge Joy Kramer's decision says, however. “This type of self-serving anecdotal evidence has no evidentiary value, given the numerous reasons why a company executive or long-time employee might use their company’s product regardless of the risks to themselves and their families – or at least claim that they did so under direct examination by the company’s attorneys.”
Lawyers for J&J argued some courts have allowed Hopkins to testify about his personal use, while others have refused. The Kentucky Court of Appeals cited federal court decisions including litigation over the drug Xarelto where judges prohibited personal-use testimony unless the plaintiffs were allowed to examine medical records and cross-examine the witness.
The trial judge refused to allow such detailed questioning in the Hayes case, however. The appeals court ruled this prejudiced the plaintiffs and “unfairly detracted from the weight” of their own expert testimony.
The defense won on a second issue, however, when the court ruled it was correct to prevent the plaintiffs from admitting a 2014 article by Ronald E. Gordon, Sean Fitzgerald, and James Millette that purports to describe asbestos they found in various samples of cosmetic talc.
All three have served as plaintiff experts and their results are vigorously contested by the defense, who say the research was paid for by plaintiff lawyers and published in a journal that was run by Dr. David Egilman, another prolific plaintiff expert in toxic tort cases including this one. Egilman has testified previously the article was peer-reviewed, but he can’t remember by who.
Plaintiff lawyers sought to introduce the article to bolster the opinions of testifying experts but the appeals court said that isn’t allowed unless those experts used the article to form their own views.
“It is difficult to overstate the substantial prejudice that can result from allowing an expert witness or `learned treatise’ to effectively become a conduit for the opinion of a non-testifying expert,” the court ruled. “An expert does not rely upon that material if he only parrots it, or cites it for the mere proposition that some other non-testifying expert arrived at the same ultimate conclusion.”
The court also referred to defense complaints about the accuracy of the article.
“To be clear … `peer reviewed and published’ are not the magic words of admissibility,” the appeals court said.