Case details

Cleavage fragments found in talc not asbestos: defense

SUMMARY

$0

Amount

Verdict-Defendant

Result type

Not present

Ruling
KEYWORDS
cancer, lung cancer, mesothelioma
FACTS
In 2017, plaintiff Carolyn Weirick, 58, a school counselor, was diagnosed with pleural mesothelioma, which is an aggressive, incurable cancer that develops on the lining of the lungs and that often stems from exposure to asbestos. Weirick claimed that her cancer was due to her exposure to Johnson & Johnson talcum powder, which was used on her as an infant and which she applied to herself daily from the time she was 13 until the time she was diagnosed. Weirick suedthe manufacturers of the talcum powder, Johnson & Johnson and Johnson & Johnson Consumer Inc.; the suppliers of the talc to the Johnson & Johnson entities, Cyprus Amax Minerals Co. and Imerys Talc America Inc.; and various other companies that were believed to have manufactured, distributed and/or worked with asbestos-containing products to which Weirick was allegedly exposed Weirick alleged that the defendants were negligent in the defective manufacturing and/or design of their respective products, and in failing to provide warnings that disclosed the hazards of asbestos exposure in their respective products. Weirick’s complaint was coordinated with hundreds of other cases that were pending in different counties that shared common questions of fact or law regarding direct and indirect exposure, and involved many of the same defendants. The cases were joined in one court, the Los Angeles County Superior Court. Many of those cases were put on hold while awaiting a decision regarding an appellate case involving indirect exposure. Weirick’s complaint ultimately proceeded to trial on July 31, 2018 against Johnson & Johnson, Johnson & Johnson Consumer and Imerys. However, mid-trial, on Sept. 14, 2018, Imerys agreed to settle with Weirick and her wife, and it was dismissed from the action. The trial continued as to the Johnson & Johnson defendants, but it ultimately concluded in a mistrial due to a hung jury. The matter was then set to be retried. During the retrial, plaintiff’s counsel contended that a study of Johnson & Johnson’s talc showed cleavage fragments, which are particles that are created when the talc rock mineral is extracted from quarries and ground up to produce aggregate, and that tests found the fragments to be asbestos and considered toxic. The plaintiff’s materials science expert testified that he had also found asbestos in Johnson & Johnson’s baby powder. Plaintiff’s counsel contended that outside scientific literature and the plaintiff’s experts opined that asbestos was present in Johnson & Johnson’s talc and that Johnson & Johnson performed its own internal tests, which also showed the presence of asbestos in its talc. Counsel argued that as a result, the Johnson & Johnson defendants knew about the presence of asbestos in their products, but failed to do anything about it or issue any warnings. Defense counsel contended that the study plaintiff’s counsel used found that the cleavage fragments were only “regulated asbestos,” as the microscopic fibers matched the shape and size of asbestos, but were not asbestos itself. As a result, defense counsel disputed there was any asbestos in Johnson & Johnson’s talc. The defense’s materials science expert opined that no asbestos was found in Johnson & Johnson’s baby powder and that the plaintiff’s expert and others were misidentifying the fragments as asbestos partly due to the similarities to the asbestos fibers’ shape., Weirick was diagnosed with pleural mesothelioma in 2017. Plaintiff’s counsel contended that Weirick will likely lose 25 years of her lifespan that could have been spent with her wife and three teenage sons. Weirick sought recovery of $1.3 million in total noneconomic damages for her past and future physical pain and mental suffering, loss of enjoyment of life, impairment, inconvenience, grief, humiliation and emotional distress. Her wife, Elvira Escudero Lora, presented a derivative claim seeking recovery of damages for her loss of consortium.
COURT
Superior Court of Los Angeles County, Torrance, CA

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