Article posted by Law360 author Bill Wichert below:
Law360 (August 21, 2018, 3:08 PM EDT) — Levy Konigsberg LLP and Kazan McClain Satterley & Greenwood this year notched New Jersey state trial victories totaling $117 million in damages against Johnson & Johnson and its talc supplier by wielding internal company documents to back up a devastating claim — its talcum powder contained asbestos and the pharmaceutical giant knew it.
The firms’ attorneys representing plaintiffs Stephen Lanzo III and his wife used those documents in alleging that J&J was aware the toxic mineral was in its talc, took steps that failed to address the problem and came up with a testing protocol that would only detect asbestos above a certain threshold, while also lying to the U.S. Food and Drug Administration.
The internal documents represented “the whole case,” according to Lanzo attorney Moshe Maimon of Levy Konigsberg, who tried the matter with Joseph Satterley and Denyse F. Clancy of Kazan McClain.
“They could not get away from … their own words,” Maimon said, referring to J&J.
Jurors in April found that Johnson & Johnson Consumer Inc.’s talc products, including its baby powder, contained asbestos, and that Lanzo’s exposure to the toxic mineral in the products between 1972 and 2003 played a substantial role in his contracting mesothelioma.
A state judge on June 29 rejected defense motions to set aside the jury’s verdicts against JJCI and Imerys Talc America Inc., which totaled $37 million in compensatory damages and $80 million in punitive damages.
Bringing in such internal documents during the trial was likely very persuasive to the jury, according to Jean Eggen, distinguished emeritus professor at Widener University Delaware Law School.
“The difficult thing in these cases is to show that there actually was asbestos in the talc,” Eggen said. “That means that these internal documents are going to be really critical.”
On the issue of asbestos being in the talc, Eggen said, “it certainly could be more powerful evidence when it’s coming … directly from the defendants than … when it’s merely coming from the plaintiffs’ experts.”
Trial victories like the Lanzos’ may provide a road map to other plaintiffs’ attorneys for how to “get a win,” Eggen said.
Success for plaintiffs is not guaranteed in other trials with different juries or different judges, but such guidance can provide “a winning strategy to help plaintiffs’ attorneys out in these difficult cases,” she said.
Before filing the Lanzos’ lawsuit in December 2016, the couple’s attorneys had other materials that allegedly indicated that J&J had used talc that was contaminated with asbestos, but they did not yet have internal documents from the company, Maimon said.
Several months later, the company turned over more than a million pages of documents as part of its initial discovery production in the case, Maimon said. The Lanzos received additional documents from J&J as well as documents from Imerys, he said.
“We already knew from the outside pieces, so to speak, that there’s asbestos in the talc,” Maimon said. “Now from the inside pieces, it tells us the internal story: They knew that there was asbestos in the talc, what did they try and do to remove it, [and] once they couldn’t remove it, what did they do as far as how to deal with it, both internally and externally.”
The documents reveal that, in the late 1960s, J&J became “acutely aware of the dangers of having asbestos contamination in their talc” and then tried to address the problem in different ways, according to Maimon.
The company first tried to find alternative sources of talc that were not contaminated with asbestos, but it was unable to do so, Maimon said. J&J then attempted to “basically clean the talc and remove the contaminants from it,” but the company could not get rid of the asbestos entirely, Maimon said.
Some of the most critical documents in the case came from that time period, Maimon said.
One of those documents was a 1969 memo written by a doctor with J&J in the context of looking for alternative talc sources, Maimon said. The memo touched on the health concerns of having asbestos in the talc and said that “this could result in litigation,” Maimon said.
Another such document was a 1974 report from J&J’s mining company about efforts to remove or suppress the asbestos in the talc, Maimon said. That report referred to the toxic mineral in the talc as being “a severe health hazard,” Maimon said.
Maimon noted, at the time of that report, Lanzo was 1 1/2 years old.
“As far as I’m concerned, that’s the most important document that’s there,” Maimon said.
Once it became clear that J&J could not remove the asbestos, “that’s when they came up with a testing protocol which they knew would miss the asbestos that was there,” Maimon said.
Under that flawed methodology, an analyst would only identify a talc sample as containing asbestos if five fibers of any one type of asbestos were found during a two-hour testing window, according to Maimon. If five such fibers were not discovered within that time limit, the analyst would record that no asbestos was detected, Maimon said.
The testing protocol allowed “hundreds and hundreds of millions of asbestos fibers to be present which you’re reporting as … no quantifiable amount of asbestos,” Maimon said.
The Lanzos’ attorneys highlighted the purported shortcomings of that methodology during the trial in rebutting the defense arguments that extensive testing found no asbestos in the talc.
“It’s designed to be negative,” Maimon said. “It’s like letting the students write the test for their final grade. Of course they’re gonna pass. They will make the test that they can pass.”
The couple’s lawyers also used the internal documents to make the assertion that J&J withheld information from and lied to the FDA in connection with its testing results.
For example, J&J told the agency in 1976 that the company tested the talc and never found any asbestos, but “if you look at the internal reports and the internal documents … they found the asbestos,” Maimon said.
In conjunction with the internal documents, Maimon and his co-counsel presented jurors with evidence that tissue samples from Lanzo’s lymph nodes contained asbestos that allegedly matched the types found in J&J’s baby powder. That material confirmed the plaintiffs’ expert testimony that Lanzo was exposed to asbestos from the talc, Maimon said.
Even without that evidence, Maimon said he would have tried the case in light of the powerful evidence within the internal documents.
“I think the documents are so clear that ultimately … there’s no way for them to get around them,” added Maimon, referring to J&J.
“The thing about the case, the same thing about the legal system, is that it’s really the only mechanism by which these types of documents come out into the public,” he said. “If it weren’t … for this system, there’s no way anybody would know any of this.”
As Christopher M. Placitella, a shareholder at Cohen Placitella & Roth PC and a member of the plaintiffs bar, put it, “Internal admissions always mean something.”
By demonstrating that testing showed there was asbestos in the talc, the documents supported the plaintiffs’ allegations and contradicted J&J’s position that its talc did not contain asbestos, according to Placitella, who attended part of the Lanzo trial.
The impact of the Lanzos’ win is that “it gives people the courage to fight,” Placitella said.
“Each case is gonna be judged on its own merits, but it does give injured people the courage to stand up and … take on a company of that size and stature,” he said.
J&J, which is aiming to overturn the verdicts on appeal, told Law360 in a statement, “Multiple independent, non-litigation-driven scientific evaluations have found that our baby powder does not contain asbestos. Throughout this trial, we were prevented from presenting evidence which we believe would have been important to the jury in their deliberations. Once the full evidence is reviewed, we believe this decision will be reversed.”
Imerys added in a statement, “Imerys Talc America is committed to the quality and safety of its products. Talc’s safe use has been confirmed by multiple regulatory and scientific bodies and dozens of peer-reviewed studies, including the FDA and two large real-world studies examining talc miners and nurses using talc over the course of 50 years. This data overwhelmingly confirms that talc is not carcinogenic.”
The Lanzos are represented by Szaferman Lakind Blumstein & Blader PC, Moshe Maimon of Levy Konigsberg LLP, and Joseph Satterley and Denyse F. Clancy of Kazan McClain Satterley & Greenwood.
JJCI is represented by John C. Garde of McCarter & English LLP, Mike Brock and Kimberly Branscome of Kirkland & Ellis LLP, Jack N. Frost Jr. of Drinker Biddle & Reath LLP, and Kathleen O’Connor, Kelsi Brown Corkran, Alyssa M. Barnard and Matthew L. Bush of Orrick Herrington & Sutcliffe LLP.
The case is Lanzo et al. v. Cyprus Amax Minerals Co. et al., case number L-7385-16, in the Superior Court of the State of New Jersey, County of Middlesex.
–Editing by Pamela Wilkinson and Alanna Weissman.