NEW YORK (Legal Newsline) - A New York appeals court reversed a $325 million jury verdict against Johnson & Johnson, ruling that even if plaintiff Donna Olson used talcum powder containing asbestos – a claim J&J denies – her expert witnesses failed to prove she was exposed to enough fibers to cause mesothelioma.
The decision by the Appellate Division of New York Supreme Court came six months after the state’s highest court threw out a $16.5 million talc verdict for the same reason, rejecting the testimony of experts who say they can detect asbestos fibers in cosmetic talc and that those fibers caused the plaintiff’s disease.
This latest ruling in Olson v. Brenntag cited the April decision of the New York Court of Appeals, which in turn relied upon earlier decisions that require plaintiffs not only to prove they were exposed to asbestos, but to produce reliable expert testimony that the exposure was sufficient to cause disease.
Facing a dwindling number of plaintiffs who can plausibly claim industrial exposure to asbestos, plaintiff lawyers launched a wave of talc litigation based on the scientific opinions of a small group of experts, most of whom were veterans of other asbestos lawsuits. They include geologist Scott Fitzgerald, Dr. Jacqueline Moline and William Longo, who has earned millions by testifying he can identify asbestos fibers in talcum powder using electron microscopic techniques. Defendants including Johnson & Johnson say Longo mixes scientific and regulatory definitions to classify thin talc fibers as asbestos, allowing medical experts to say those fibers caused the plaintiff’s disease.
Judge Gerald Libovitz in 2020 upheld Olson’s blockbuster verdict, which included $300 million in punitive damages, in a lengthy opinion that largely recited the testimony of plaintiff experts including Longo and Dr. Moline. The appeals court dismissed the case in a 3-page opinion, saying only that the plaintiff failed to produce evidence she had been exposed to enough fibers to cause her disease.
“Even if it is assumed that plaintiffs presented sufficient evidence to support their mineral expert’s estimate of the amount of asbestos to which plaintiff Donna Olson was exposed each time she used J&J’s talcum powder products, plaintiffs’ medical expert never set forth a scientific expression of the minimum lifetime exposure to asbestos that would have been sufficient to cause mesothelioma, the disease in question,” the five-judge panel wrote.
New York courts have “repeatedly rejected as insufficient” expert testimony that plaintiffs were exposed to “too much” of a toxin, the court said, especially in the case of asbestos fibers which are omnipresent in the air and human lung tissue. Plaintiffs must provide expert testimony that the level of exposure was sufficient to cause disease, the court said.
Plaintiffs have suffered a string of losses in talc cases recently, even as J&J lost its battle to overturn a $2 billion verdict in Missouri and withdrew cosmetic talc from the U.S. market to contain litigation expenses. Onetime wholesale talc supplier Whittaker Clark has fought especially hard to overturn jury verdicts, most recently winning a case over Old Spice talc in California.