LOS ANGELES (Legal Newsline) - A California jury recently rejected claims Johnson & Johnson’s Baby Powder caused a man’s cancer, despite hair-raising testimony that talc is contaminated with deadly asbestos fibers and the plaintiff’s mother covered him with so much of it that “he would look like the Pillsbury Doughboy.”
The jury may have reacted to glaring inconsistencies between the story plaintiff lawyers and their experts told and how they seem to treat the risk of getting sick from talc in real life. William Longo, for example, provides the vital scientific evidence for many talc lawsuits by telling jurors he has found enough asbestos fibers in talcum powder to deliver a lethal exposure to anyone using it.
The plaintiff, John Doomey, testified he had lived in the same house for 50 years, using Johnson’s Baby Powder almost daily. Yet neither Longo nor Doomey’s lawyers at Dean Omar could explain why his house had never been tested for asbestos, even after Doomey sued J&J for causing his mesothelioma.
“If plaintiffs' theory is correct, then anybody who is coming into your house -- your friends, your grandkids -- and they're using that bathroom, then they're being exposed to asbestos,” attorney Morton Dubin of King & Spalding said in closing arguments. “Wouldn't you expect, in a case like this with somebody who has been living in the house for 50 years, supposedly using an asbestos product in that house in the -- in a small bathroom for 40 years, to be able to produce evidence that they went and tested the house, that they had people come in with HAZMAT suits, cleared the house out?”
Dubin reminded the jury it was Doomey’s burden to prove Johnson’s Baby Powder made him sick. So it may have puzzled jurors that no one responsible for proving his case bothered to collect what surely would have been ironclad evidence Doomey had had been breathing in asbestos fibers all those years.
Another example was Mark Bailey, a geologist who frequently provides plaintiff testimony in asbestos cases. Like other experts, Bailey tells jurors asbestos is an insidious threat because you can’t see or smell the fibers in the air.
A defense lawyer asked Bailey about the time he visited a mine in Italy that Bailey claims produced asbestos-contaminated talc. Did you wear a respirator when you visited the mine, the lawyer asked? Did you urge others to wear respirators? Bailey said he didn’t, because he didn’t see any talc. But what about asbestos fibers being invisible? Couldn’t there be fibers floating around in the vicinity of the mine? No explanation.
Johnson & Johnson has been trying to hammer these points home to jurors, with mixed success, as it fights thousands of lawsuits claiming Baby Powder caused mesothelioma and other cancers. It has won 16 of 17 trials over ovarian cancer but has a worse record with mesothelioma, a cancer of the chest lining closely associated with asbestos exposure.
The company declines to provide its total win/loss ratio and has settled a number of mesothelioma cases. It had offered $9 billion to settle most of the non-meso cases, but a Houston bankruptcy judge rejected that effort, and J&J said it will not appeal and instead return to various civil courts to prove Baby Powder didn't contain asbestos.
If jurors believed the epidemiology, maybe there would be no talc lawsuits. Johnson & Johnson accuses Longo of confusing jurors with a bewildering number of different definitions of an asbestos fiber. But even if Longo is right, studies of workers who mined and milled talc found no higher rates of mesothelioma than the general population, even though they were exposed to orders of magnitude higher levels than ordinary consumers.
Plaintiff experts say those studies excluded workers with other cancers, but the researchers said they did that because the other cancers were closely associated with habits like smoking and drinking.
Most Americans have been exposed to talc during their lifetimes. If the plaintiff lawyers are to be believed, surely mesothelioma rates would be rising or at least hold constant given such a massive population-wide exposure. But mesothelioma cases have actually been dropping steadily for years, following a bubble caused by industrial workers exposed to asbestos in shipyards and industry during and after World War II.
They currently run around 3,000 a year, which may be the background rate for a cancer that can sometimes arise spontaneously.
Doomey’s medical experts also agreed asbestos has a latency period of about 50 years between exposure and disease and exposures in early childhood are more dangerous. Yet Doomey testified he used Baby Powder for 70 years before he was diagnosed with mesothelioma.
Closer to the 50-year latency window was when he started working for a trucking company where he said he frequently breathed in dust created by workers changing brakes. Doomey’s medical experts downplayed asbestos brake pads as an exposure.
Finally, Doomey himself may have lost credibility with the jury. He changed his story about whether he stopped using talc after being diagnosed with cancer. To get to the level of exposure his experts said is needed to contract cancer, he would have had to have purchased hundreds of large bottles of Johnson’s Baby Powder over his lifetime. But his wife couldn’t remember buying a single one.
Doomey’s own brother undermined Pillsbury Doughboy story, in which the plaintiff claimed his mother doused him with Baby Powder after bathing him in the sink. David Doomey testified he never saw his mother applying Baby Powder on his brother.
“If John was using product, it wasn’t because Mom was putting it on him,” he testified.