|
 But the attention-grabbing judgment is no guarantee future
plaintiffs will be able to convince juries the company's products
caused their illnesses.
About 1,200 similar cases are pending, primarily in Missouri and New
Jersey state courts, but the facts are different in every one.
And even in cases with similar evidence and expert testimony, juries
in mass personal-injury litigation can come to different
conclusions.
While the survivors of Jacqueline Fox were awarded $72 million by a
St. Louis jury Monday, jurors in a federal court action in South
Dakota - the only other talc case to go to trial - found in 2013
that J&J had been negligent but declined to award damages to
plaintiff Deane Berg.
Like Fox, Berg alleged her ovarian cancer was caused by her
decades-long use of J&J's talc-powder products for feminine hygiene,
and jurors in both cases heard testimony about studies linking talc
to cancer risks.
But, unlike Fox, who passed away several months before the trial
began, Berg was in remission at the time of the trial, according to
court documents.
In addition to factual differences among cases, venue can affect
outcomes. Some state courts are considered more plaintiff-friendly
than federal courts, which have stricter rules for the admission of
evidence and expert testimony, said lawyers involved in the
litigation.
One juror in the Missouri case, Jerome Kendrick, said in an
interview with Reuters that he and other jurors were especially
swayed by testimony from plaintiffs' medical experts and documents
showing J&J employees discussing talc powder's possible cancer risk.
"The problem I had is that, according to inter office documents, J&J
was aware of the potential concerns," Kendrick said. "And it really
looked like instead of trying to investigate, they started talking
about how to combat what would eventually be a court case."
J&J has said that "decades of sound science" prove that talc is
safe. The company on Tuesday issued a statement expressing sympathy
for Fox’s family but disagreeing with the verdict. It also said it
is exploring its post-trial options.
UNDER THE RADAR
Talc litigation got its start in 2009, when Berg filed her lawsuit.
The Fox lawsuit was selected by plaintiffs' lawyers as the first to
go to trial in Missouri, to serve as an early bellwether of how
similar cases in that venue might fare.
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The litigation flew largely under the public’s radar until jurors
returned the award for the family of Fox, who died in October at 62.
The plaintiffs said Fox used J&J Baby Powder and Shower to Shower
Powder for feminine hygiene daily for 35 years before she was
diagnosed three years ago with ovarian cancer.
It has resonated with the public far more than the Berg case, which
“didn’t get headlines because they didn’t award any damages,” said
R. Allen Smith, a Missouri-based lawyer who represented both the Fox
family and Berg.
More cases may be filed soon, and lawyers at several plaintiffs’
firms who worked on the Fox case said they are investigating
thousands of additional claims.
Still, the talc cases represent a relatively small portion of the
tens of thousands of lawsuits J&J is facing over its many products.
For instance, it is the target of more than 44,000 cases from women
who say they were harmed by pelvic mesh devices made by its Ethicon
unit, and more than 8,000 against its DePuy subsidiary regarding
Pinnacle metal-on-metal hip systems.
The next J&J talc trial is set for April in St. Louis, and
additional trial dates have been set for later this year.
To be successful, plaintiffs must make both a general link between
talc and ovarian cancer and show that J&J's products - as opposed to
something else - are to blame for their cancer.
In spite of the increased interest in the litigation following the
Fox verdict, attorney Danielle Mason of Beasley Allen, who was part
of the team representing the Fox family at trial, said she expected
J&J to fight hard to defend itself in upcoming trials. "We're in
this for the long haul," she said.
(Reporting by Jessica Dye; Editing by Alexia Garamfalvi and Lisa
Girion)
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