(January 6, 2020) — Johnson & Johnson settled a talcum powder-mesothelioma case midtrial today. A California judge announced to the jury that the trial was finished. The jury was one of the first to hear about the U.S. FDA’s announcement last fall that the agency found asbestos in a bottle of J&J talcum powder.

In October 2019, the FDA found asbestos in J&J talc, which contradicted J&J’s longstanding, full-throated defense, endlessly repeated by J&J lawyers in every talcum powder cancer trial so far, that J&J talc has never contained asbestos.Alameda County Judge Stephen Kaus made the surprise announcement as trial proceedings began Monday. The judge told the jury: “I have some news, which is that the parties have settled their case. (I) don’t know what the settlement is; I just know that it’s resolved.”

Plaintiffs in the California trial, Linda and Mark O’Hagan, claimed that Linda’s mesothelioma – a cancer that attacks the lungs – was caused by asbestos in J&J baby powder. The aborted trial had run from Dec. 2 through Dec. 20, then broke for the holidays, and commenced today.

FDA finds Asbestos in Talcum Powder

In opening statements, the plaintiffs’ lawyers were the first to tell the jury about the FDA’s October announcement that a blind test of J&J talc had found chrysotile asbestos in one sample. FDA and J&J each announced on Oct. 18, 2019 that J&J would recall a large lot of the powder.

Linda O’Hagan was diagnosed with mesothelioma in August 2018. Doctors estimated she would be dead in 1 ½ years. She has suffered multiple rounds of chemotherapy – which seldom, if ever, works for lung cancer. She has also taken immunotherapy. In opening statements, her lawyer said that neither of those treatment options has slowed or stopped the spread of her cancer.

On the defense side, J&J’s lawyer claimed in opening statement that Mrs. O’Hagan’s cancer was not caused by J&J’s products. J&J lawyers claimed that her cancer was likely not caused by asbestos at all.

On the Talcum Powder-Asbestos Trail

One early witness for the O’Hagans was William Longo, an electron microscopy expert . Mr. Longo testified that he examined  decades-old, internal Johnson & Johnson documents.  He  told the jury his findings showed J&J talc contained asbestos, and that J&J knew or should have known that it did.

Mr. Longo reviewed company documents that referred to Vermont talc mines run by Windsor Minerals, which supplied the talc Mrs. O’Hagan would have used from 1993 to 2003. Those documents referenced chemical solutions and other methods designed to remove or reduce the amount of chrysotile – an asbestos mineral – in the ore in those mines.

Those methods, Mr. Longo testified, proved J&J knew there was asbestos in the talc. “Otherwise they wouldn’t be developing a system and spending the time to figure out how to remove it,” he said.

Mr. Longo further testified that he had also tested talc from the Vermont mines. He said he also found them to contain asbestos. He added,  “[I’m] not saying anything new here.”  In addition, Mr. Longo testified that internal J&J documents showed asbestos minerals contaminated the talc being mined in Val Chisone, Italy; that talc would have been used by Mrs. O’Hagan from 1958 to 1983.

“Insignificant amount”?

The plaintiff’s attorney also asked Mr. Longo to review testing done by McCrone Associates in 1972 on samples of J&J Baby Powder that indicated they had found “an insignificant amount” of tremolite in the product.

Tremolite, Mr. Longo explained, is a mineral with both an asbestos form and a non-carcinogenic non-asbestos form. Mr. Longo said his lab found the asbestos form of tremolite in J&J baby powder.

The plaintiff’s lawyer also asked Mr.  Longo about testing his own lab had done on J&J products. Mr. Longo said his lab had tested 40 containers of J&J talc products. He said it found asbestos in 20 of them, with an average of between hundreds of thousands and roughly 1 million fibers per gram of talc.

Mr. Longo’s testimony may have helped J&J come to the settlement table in this case. Though the company has won some talc-meso lawsuit cases, it has also lost several heard by juries. It has also settled several others, quietly, even before the FDA found asbestos in October 2019.

The case is Linda O’Hagan et al. v. Johnson & Johnson et al., case number RG19019699, in the Superior Court of the State of California, County of Alameda.

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by Matthews & Associates