ST. LOUIS – Attorneys for both sides claimed the other fabricated science during closing remarks on July 11 after a month-long trial in a lawsuit in which 22 women allege the baby powder they used made by Johnson & Johnson gave them ovarian cancer.
“You’re fighting one of the largest companies (J&J) in the world,” Mark Lanier, the attorney for the plaintiffs, told a jury. “They have unlimited resources and the best lawyers to choose from. The plaintiffs all have something in common, they all have ovarian cancer. They got it from Johnson & Johnson powder.”
The trial in the St. Louis City Circuit Court is being streamed courtesy of Courtroom View Network.
Throughout the trial the defense claimed the women got their cancer because of inherited prior family histories of cancer and mutating genes unrelated to talc use. The plaintiffs’ attorney contended Johnson & Johnson concerned with profits ignored the evidence and used less stringent testing methods to avoid finding asbestos in their talc powder.
“The evidence shows that Johnson & Johnson is responsible,” Lanier said. “The responsible party needs to be brought to justice.”
Lanier said the company’s motive was money.
“This is not the Johnson & Johnson of yesteryear, the Johnson brothers of 1875,” he said. “This is a multi-national corporation. It still plays on the (old) idea because it will evoke warm feelings of trust. That’s why they (J&J) call it (baby powder) their golden egg, their sacred cow.”
Lanier said the company rigged tests to show the talc did not contain asbestos. As far back as 1973 he said the company had avoided an available and more comprehensive ore test of talc called “pre-concentration;” or greater pre-screening of talc for minerals including asbestos and a related mineral called tremolite, before major testing. Lanier indicated the company was fearful of what the more comprehensive testing would reveal.
Dr. William Longo, a noted scientist and electron microscope researcher whose findings the plaintiffs have often cited linking asbestos in talc to higher risk of ovarian cancer, was praised by Lanier for having done "exhaustive" testing.
“In two years he (Longo) tested one hundred times more samples than Johnson & Johnson did in 50 years,” Lanier said. “He found it (asbestos) in half the bottles he examined.”
Other researchers had come up with similar findings, Lanier maintained.
Lanier said Johnson & Johnson targeted as customers not just babies, but adults including Hispanic and African American women, and women who were overweight.
“They (J&J) said this is the product that will make your life better,” Lanier said.
Lanier referred to witnesses for the defense as “hired guns” who engaged in “junk science” for an industry that spent millions to orchestrate its defense.
Lanier said he attempted to question high executive officials of the company, but the best he could do was John Hopkins, a toxicologist for Johnson & Johnson from 1976 to 2000.
“Where’s the company, where’s someone who cares about this?” Lanier asked. “The world is watching and who spoke for the company, a guy (Hopkins) who hasn’t been there for 18 years.”
Lanier said the idea asbestos was a threat only with “heavy occupational (workplace) exposure” and not from baby powder use was a falsehood.
“Substantial environmental contact, that’s what our ladies have,” Lanier said. “If you work a job around asbestos they give you a mask. They don’t have that in a place where you’re dusting your baby every hour-and-a-half or shaking it on yourself.
"This is a horrendous situation, a tragedy in the making,” he added.
Lanier exhibited a film clip in which baby powder was sprinkled on a doll under a dark light revealing a rising white cloud of talc that he contended could remain for an hour or more to be breathed.
Lanier described the women's lives he said were devastated by the exposure to asbestos in baby powder, the cancer eating inside a body, the suffering, pain and fear endured by the plaintiffs, nausea and sleeplessness from the chemotherapy treatments, loss of hair and body parts from surgery.
“Death is the final destination for some,” Lanier told the jury. “Please think this through. Don’t let Johnson & Johnson get away with this.”
Peter Bicks the attorney for Johnson & Johnson said there’s an old saying.
“When the law is on your side you pound the law, when the facts are on your side you pound the facts, when neither are on your side you pound the table,” he said. “What you heard over this trial and the last hour plus (Lanier's remarks) was a lot of pounding of the table.”
Bicks complimented Lanier as “quite a showman.”
“But some stories are fictions,” he said. “This isn’t a show. This is a fictitious story spun by the plaintiffs in this courtroom. To suggest that Johnson & Johnson is only out to make a profit and to hurt people with a product that’s been on the market for over 120 years, it’s a really hard trial to sit through.”
Bicks said that while the women plaintiffs have stories that are “gut wrenching,” they nevertheless had to prove what caused their ovarian cancer.
“The plaintiffs have a burden of proof and they have not come anywhere close,” he said. “The evidence has shown that Johnson & Johnson powder does not contain asbestos and did not cause the ovarian cancer in this case.”
He said the plaintiffs also had to prove that talc powder was unreasonably dangerous, that Johnson & Johnson did not give adequate warning, and that use of talc was a direct cause or contributed to the ovarian cancer.
Bicks said attorney advertisements run on television prompted the women to become involved in the case and not from advice given them by the doctors treating them. Three such doctors called to testify by the defense included Cheryl Saenz, Warner Huh and Kevin Holcomb.
“The answer of the doctors who have to deal with people who have ovarian cancer is that talc has no role,” Bicks said.
Bicks noted that the plaintiffs had produced no gynecological oncologists to testify.
“All four of the doctors who appeared agreed the Johnson & Johnson powder did not cause ovarian cancer,” he said. “If there was asbestos in this product as the plaintiffs claim, with 110 years of use, you would see it in objective scientific data, but you don’t.”
Bicks said the plaintiffs had sought information based on heavy occupational exposure and not studies of talc and ovarian cancer. He added that the latency period, the length of time it takes from exposure to the disease; the plaintiffs couldn’t seem to make up their minds, 10 years, 15 years, 20 to 40.
“It’s a pretty big spread,” Bicks said. “That’s important because the plaintiffs have to get the latency right. They’re trying to shoehorn the plaintiffs into the latency period.”
Bicks also challenged experts for the plaintiffs including Dr. Jacqueline Molene, a noted occupational medical specialist and researcher on environmental exposure.
“She has great credentials but she is not a gynecology oncologist and she has not published on ovarian cancer,” Bicks said.
Nor was Dr. Dean Felsher, a Stanford professor of medicine oncology and pathology and another researcher cited by the plaintiffs, a gynecology oncologist, Bicks added.
“He (Felsher) never lectured on ovarian cancer,” Bicks said. “He never taught a course on it.”
Bicks said repeated testing of the Johnson & Johnson products by a variety of researchers, some of it performed by the McCrone Research Institute of Chicago, used the best analytical tools available for the determination of fine asbestos minerals in talc, and had found none.
He said charges of rigged tests by Johnson & Johnson were groundless.
“So how can someone say we rigged tests?” Bicks asked. “The evidence doesn’t support it, nor does common sense."
Bicks described the plaintiffs’ case as a lot of show.
“It’s been good entertainment, but there’s a lot on the line,” he said. “We’re accused of really bad things.”
Bicks said while the plaintiffs deserved respect and sympathy, the jury must set sympathy aside and look at the facts.
“Just focus on the facts and evidence to get to the truth," he said. "I don’t think the plaintiffs met their burden of proof. It’s an attempt to take sympathy and pressure to have a big payday.
"That’s not right or fair,” Bicks added.