Talc Talk – One of These Things (Verdicts) Is Not Like the Others

We’ve been following a series of cases filed against Johnson & Johnson by plaintiffs alleging that using talc caused ovarian cancer.

Since 2009, over 2000 cases have been filed, mostly in Missouri, New Jersey, and California. Missouri has seen four trials: the first three resulted in plaintiffs’ verdicts, but the fourth and most recent resulted in a verdict for J&J.

Often in mass tort litigation, courts allow the parties to have a series of “bellwether trials” to show what is likely to happen in future trials. Rather than preparing to try all cases in a mass tort litigation, the parties can try fewer cases that involve the most contested issues. In Missouri, the bellwether trial plaintiffs are chosen by counsel, with each side taking a turn to select the next plaintiff.

Here’s how the Missouri cases have gone so far:

Trial # Verdict Jury Vote Who Chose the Plaintiff?
1 $72,000,000 10-2 Plaintiffs’ Counsel
2 $55,000,000 9-3 Defense Counsel
3 $70,000,000 9-3 Plaintiffs’ Counsel
4 Defense verdict 11-1 Defense Counsel
5 Currently being tried Defense Counsel

While it’s hard to say if this latest win will change the momentum for J&J, we see two possible reasons for the victory.

1. Choosing Battles Wisely
First, the parties are taking turns choosing which cases to try. Both sides want to make the most out of their picks by choosing cases with facts that better fit counsel’s theories or arguments.

For example, J&J picked the second and fourth plaintiffs. The second plaintiff has a history of risk factors for ovarian cancer, including endometriosis and being overweight, and her cancer has been in remission since 2011. Although J&J lost that case, plaintiff convinced the minimum number of jurors required in Missouri. Interestingly, a juror revealed in a post-trial interview that the vote had originally been only 7-5 in plaintiff’s favor, meaning a defense verdict.

On the other hand, plaintiffs’ counsel picked the first and third plaintiffs. The first plaintiff passed away in October 2015 from ovarian cancer. The third plaintiff alleged that she had used J&J baby powder for over 45 years and was diagnosed with stage four cancer in 2012. She has also had her spleen, colon, uterus, and ovaries removed, and according to her attorneys, may only have a few more years to live.

2. Changing Lead Counsel
J&J has changed lead counsel for almost every case, allowing it to test with the jury not just legal theories and arguments, but the lawyers as well.

In the five Missouri cases so far, J&J has had four different lead counsel from three different firms. This strategy may allow J&J to stay more nimble by trying different presentation approaches to see what resonates with jurors. J&J’s full roster of trial teams also means that no single team gets fatigued by the rapid scheduling of these cases.

So, has J&J started a new winning streak? Time will tell. There are at least three more cases being tried this year. The current trial, which began on April 11, was also a “defense pick.” This trial was moved up after plaintiffs’ counsel argued that plaintiff’s deteriorating health necessitated an earlier trial. Two more Missouri trials, with plaintiffs’ counsel choosing, are scheduled to start in June and July.

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