Before a Connecticut trial this year over whether talcum powder caused a man’s abdominal cancer, lawyers for Johnson & Johnson pleaded with a judge to prevent plaintiff lawyers at Dean Omar Branham Stanley from engaging in what they called “repeated and pervasive misconduct.”
They cited previous cases in which lawyers with the Dallas firm made improper arguments, such as telling jurors their verdict would have “big, big consequences for our society” and suggesting damages similar to “baseball players that get $150 million for signing a contract.” Partner Jessica Dean was chastised by a judge for claiming, without evidence, “there’s over 2 million Johnson & Johnson records, over a thousand samples” showing studies that failed to find asbestos in baby powder were “rigged.”
In another case, defense lawyers objected when she cried during her client’s testimony.
Then there were the props, including a tall stack of cancer textbooks festooned with Post-it notes and topped by a microscope, which defense lawyers complained blocked jurors from seeing them.
Dean Omar also tends to bring in large demonstrative exhibits that stay up throughout the trial, including a picture of an electron microscope to remind jurors of the technology plaintiff experts claim can detect asbestos fibers in talc. Johnson & Johnson says those experts misidentify talc particles as asbestos and their cosmetic talc products are safe.
Whatever defense lawyers say about them, Dean Omar’s tactics work. After judges rejected most of the defense motions in the Connecticut case, Dean Omar won a $15 million verdict for plaintiff Evan Plotkin even though Plotkin had a form of mesothelioma not normally associated with inhaling asbestos fibers. (The trial can be viewed on Courtroom View Network.)
It was the fourth big talc verdict for Dean Omar this year, after winning a $63.4 million verdict in South Carolina, a $45 million verdict in Chicago and a $260 million verdict, since overturned, in Oregon.
Asked to comment on complaints about his firm’s tactics, Dean Omar Partner Trey Branham talked about J&J instead.
“We believe it is far more appropriate and insightful to focus on the most basic facts about Johnson & Johnson’s decades of lies to the American public,” Branham said in a statement to Legal Newsline. He went on to say J&J and its chief litigation counsel Erik Haas “struggle mightily with the truth,” engage in “gaslighting tactics” and should settle talc cases “in good faith.” He declined to comment on specific defense criticisms.
The bad blood between Dean Omar and defense lawyers doesn’t just play out in front of the jury. In the South Carolina case that resulted in a $63 million verdict this year, Dean Omar’s Ben Adams told defense lawyers their clients were “criminals,” and told one he was going to “do to you worse than what we did” in the Oregon trial that produced a $260 million verdict.
After defense lawyers complained to Judge Jean H. Toal, she said she was “very offended by that conduct,” including referring to the Oregon case. The judge didn’t reprimand Adams, however, instead telling him to engage in “some prayerful thought what to do.”
Defense lawyers objected repeatedly to the arguments of Dean Omar attorneys throughout the Connecticut trial and have vowed to appeal the verdict. The criticism of trial tactics flows both ways, however.
Before the trial started, Dean Omar asked the judge to prohibit defense attorneys from making personal attacks or calling talc lawsuits “scams.” They also made a motion to bar the defense from showing a picture of Dr. William Longo, a key plaintiff expert, in front of a “Confederate flag” (actually a former state flag of Georgia).
But attorney Ben Braly got the final word in when at the end of his closing arguments he told jurors J&J had insinuated the plaintiff was responsible for his own cancer.
“At a certain point, it becomes simply cruel,” he said of J&J’s defense. “And you kind of start thinking the cruelty might be the point.”
Judges and bar associations have sanctioned Dean Omar lawyers for some of their courtroom tactics. Partner Dean was disciplined in several states and withdrew from South Carolina asbestos cases after she submitted statements that failed to note prior disciplinary actions.
Dean Omar surged to prominence in South Carolina after Judge Toal was appointed to oversee the state’s asbestos docket. Branham, like Judge Toal, is a graduate of the University of South Carolina Law School.
Courts in Minnesota granted mistrials in two asbestos cases after Dean violated motions in limine similar to the ones J&J sought before the Connecticut trial. Judges in those cases found Dean had repeatedly violated pretrial orders not to present certain evidence or make improper arguments.
A California court threw out a jury verdict after the judge cited “outrageous misconduct by plaintiffs’ counsel during trial and closing argument.” And the Oregon judge reversed this year’s $260 million talc verdict after a trial in which plaintiff experts said all forms of cosmetic talc contain asbestos, without providing any evidence the talc the plaintiff claimed to have used contained the fibers.
Defense lawyers said the plaintiff grew up next to a textile factory in South Korea that used the deadliest form of asbestos in its manufacturing process.