ST. LOUIS - Just before Houston plaintiff attorney Mark Lanier wrapped up opening arguments Wednesday morning on behalf of 77 women claiming asbestos in talcum powder caused ovarian cancer he told jurors about a study of infants who had been born dead.
"They took biopsies and all of them had asbestos that had migrated from the womb across the placenta," Lanier said.
It prompted St. Louis City Circuit Court Judge Rex Burlison to excuse the jury, and Johnson & Johnson counsel Peter Bicks to move for mistrial.
"Your honor, he should have approached you with that," Bicks said, referring to the study.
Burlison denied Bicks' call for a mistrial.
The case before Burlison is at least the fifth ovarian cancer trial held in his court in the last two years. In previous trials, plaintiffs from across the country have been awarded substantial judgments totaling more than $300 million. However, one of the first to be tried - a $72 million verdict for Jacqueline Fox, who had resided in Birmingham, Ala. - was vacated by a state appeals court last October.
It found that in light of the landmark Bristol-Myers Squibb (BMS) v. Superior Court of California decision, Burlison had erred when he exercised personal jurisdiction over Johnson & Johnson because Fox's claims did not arise out of the company's activities in Missouri. Three other verdicts out of Burlison's court remain under appeal.
The present case filed by lead plaintiff Gail Ingham of O'Fallon, Mo. was removed to federal court last year, but District Judge Stephen Limbaugh remanded it in July.
Pre-trial documents in Ingham's case show that Burlison held that this case was "distinguishable" from others.
On May 15, he told parties to get ready for trial. He ruled that he would not sever, transfer or stay claims, finding sufficient contacts between Johnson & Johnson in Missouri to invoke a long arm statute.
"This court is most able to efficiently resolve the controversies raised in plaintiffs' petition," he wrote.
Burlison noted that several plaintiffs had died and that many had spent time and resources preparing for a June trial.
On May 29, after plaintiffs filed a fifth amended complaint, Johnson & Johnson again asked to sever or transfer claims, as well as sought summary judgment. Burlison denied.
And on the eve of trial, co-defendant Imerys Talc settled claims for at least $5 million, according to Bloomberg.
In his opening, Lanier told jurors that asbestos lives forever. He compared it to cockroaches, saying that after the apocalypse there will always be cockroaches,
"Your body can't destroy it," he said. "You can't get rid of it."
He said that asbestos at any level can cause cancer; he then compared asbestos exposure to a game of Russian roulette.
"The more exposure, the greater the chance," he said.
Lanier held up a small bottle and said that at the rate that Johnson & Johnson tests its product for asbestos, it would take 600 years to test the contents of the bottle.
He cited research conducted by Dr. William Longo, who has performed 300,000 to 400,000 analyses of products in 30 years.
"He has tested 100 times more Johnson & Johnson baby powder than Johnson & Johnson has," Lanier said, saying that Longo found asbestos in almost half the bottles he examined.
Lanier said overweight women living in hot climates, teenagers, Blacks and Hispanics were targeted for marketing non-baby use.
He held up a picture of a cancerous ovary and kept it up as he continued.
He showed an internal email where someone at the company recommended moving the product from the baby aisle or replacing talcum with corn starch.
"There was a safer alternative but it didn't make as much money for them," he said.
Trial is expected to continue through mid-July.