St. Louis Record

Sunday, January 19, 2020

Closing arguments set in latest trial over claims that talc-based powder causes cancer

State Court

By John Breslin | Dec 20, 2019

Brownalison
Alison Brown

ST. LOUIS - Closing arguments are set to begin Friday in the latest case claiming talc-based powder causes ovarian cancer.

The more than two week trial, which began Dec. 4 in St. Louis City Circuit Court, centers on the allegation by plaintiff Vicki Forrest that J&J, the makers of Johnson's Baby Powder, failed to warn users of the risk of cancer.

It is the first trial to take place in the city since a jury awarded plaintiffs making similar claims a total of $4.69 billion. J&J is appealing that verdict and award, while four others hosted by the same court have been overturned by appeals panels.

In testimony this week, the company's vice president of women's health told the jury that reports of traces of asbestos being found in a Johnson Baby Powder containers were likely the result of contamination during testing in a laboratory.  Dr. Susan Nicholson told the court: "These things happen."

In early October, J&J announced a voluntary recall of a batch of the powder after tests carried out by the FDA revealed the traces of asbestos.

The company, in a statement just ahead of the St. Louis trial, said that 155 tests were carried out by third party labs using four different testing methods on the same container. No traces were found, the company claimed.

In opening arguments, the attorney for the plaintiff, Allen Smith, of the Smith Law Firm, told the jury that they could save thousands of women's lives with a verdict against the company.

Counsel for J&J, represented by Allison Brown, of Skadden, Arps, Slate, Meagher & Flom, and Michael Brown, of Nelson Mullins Riley & Scarborough, described this as "rhetoric" designed to the influence the jury in order that they ignore the science.

As the trial concludes, the American Tort Reform Association said that St. Louis is included high on the list of its so-called "judicial hellholes" for several reasons.

These include "when judges allow into evidence 'expert' testimony that has been rejected in courts in others states," association President Tiger Joyce told the St. Louis Record.

He added that the city courts also permit "plaintiffs from outside Missouri to bring cases even when the matter didn’t arise in the state."

"Personal injury lawyers flock to hellhole jurisdictions like St. Louis to file their cases," Joyce said.

The present trial, before Judge Rex Burlison, is happening as a jury in Los Angeles found in favor of the company last week in a similar case in Los Angeles. The LA jury rejected the argument of the plaintiff, Amy Fong, that she developed mesothelioma after using J&J talc products over a long period.

The $4.69 billion verdict reached in St. Louis City Court in July 2018 also was presided over by Burlison. 

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