By Daniel Siegal
Law360 (April 22, 2019, 10:17 PM EDT) — Asbestos hidden for decades in talcum powder products made by Johnson & Johnson and Colgate-Palmolive gave a 61-year-old woman mesothelioma, leaving her only months to live, her attorney told a California jury Monday on the first day of trial.
In Alameda County Superior Court, Joseph Satterley of Kazan McClain Satterley & Greenwood told the Oakland jury and Judge Frank Roesch that his client, Patricia Schmitz, will likely not live past this summer and that what will kill her is a “needless cancer, easily preventable.”
Satterley said that J&J’s Johnson’s Baby Powder and Colgate-Palmolive’s Cashmere Bouquet have secretly contained asbestos for years.
“And I say secretly because the evidence is going to be that most people, most common people, most consumers, most doctors, most treating doctors didn’t know what was recently uncovered in the last few years, that there was asbestos and is asbestos in these body and baby powders,” he said.
Satterley told the jury that Schmitz had been working as a schoolteacher until her diagnosis last year, and that the mesothelioma — a cancer of the lining of certain organs, the lungs and heart in Schmitz’s case — had left her unable “to do anything she used to.”
Schmitz wouldn’t have been exposed to the asbestos in her talc products, however, but for a yearslong campaign by J&J to “keep the public from knowing there was asbestos in talc and in baby powder,” according to Satterley. That campaign included pressuring researchers to change testing results when they found asbestos in talc, Satterley said.
J&J attorney Alexander Calfo of King & Spalding LLP countered during his opening statement by telling the jury that what they had heard during Satterley’s opening was a “story with a purpose based on a handful of documents” from decades of testing of J&J’s talc that had been taken out of their original context.
“When you hear the evidence, think to yourself, was there really some big plan by Johnson & Johnson, some big plan by government agencies, some big plan by testing organizations and laboratories to keep it secret that there’s asbestos in baby powder?” he said. “Does that make sense?”
Calfo explained that just like there are poisonous mushrooms and edible mushrooms, there are certain minerals, such as tremolite and other amphiboles, that have both asbestos types and harmless non-asbestos types.
Calfo said that internal J&J testing documents that the plaintiff would say showed asbestos in the company’s talc actually showed the presence of tremolite, and not its asbestos form.
Schmitz only personally used J&J’s products for roughly two or three years at the end of the 1960s, before switching to other brands for the next 34 years, Calfo added.
Finally, Calfo told the jury that in the same way that not every person with lung cancer smoked cigarettes, not every case of mesothelioma is caused by asbestos. Schmitz had no medical “asbestos markers,” such as pleural plaques or the scarring called asbestosis, according to Calfo.
Colgate-Palmolive’s counsel will deliver their opening statement on Tuesday.
Although cases alleging J&J’s talcum powder products contained asbestos have captured the bulk of the headlines, its fellow consumer products giant Colgate-Palmolive has also been pulled into courts across the country to defend its talc.
Colgate-Palmolive hasn’t been hit with the same sky-high verdicts — including one $4.69 billion result — that have stacked up against J&J, although a California jury did hit it with a $13 million verdict in 2015. In February 2019, a Philadelphia judge threw out claims alleging that asbestos-laden talcum powder caused a woman’s mesothelioma, just one day before a trial was expected to kick off.
J&J has of late racked up several favorable results in talc cases, including convincing juries in New Jersey trials in March and October, and in California in November, that its baby powder had not caused three consumers’ mesotheliomas.
In the last case to head to trial in Alameda County, however, a jury awarded $29 million to plaintiff Teresa E. Leavitt — who, like Schmitz, was represented by Satterley.
Schmitz is represented by Joseph Satterley, Denyse Clancy and Ian Rivamonte of Kazan McClain Satterley & Greenwood.
J&J is represented by Alexander Calfo, Troy McMahan and Cori Steinmann of King & Spalding LLP, and Michael Battle and Sandra Ko of Barnes & Thornburg LLP.
Colgate-Palmolive is represented by Gary Sharp, Peter Mularczyk and Andrew Sharp of Foley & Mansfield.
The case is Patricia Schmitz v. Johnson & Johnson et al., case number RG18923615, in the Superior Court of the State of California, County of Alameda.
For additional coverage of this trial visit Courtroom View Network.
–Additional reporting by Cara Salvatore, Matt Fair and Y. Peter Kang. Editing by Breda Lund.
Reference – https://www.law360.com/articles/1152209