A California appellate court has shut down an appeal from Johnson & Johnson regarding a $29 million verdict for their talc products that allegedly contained asbestos and caused the cancer of one woman.
On Aug. 5, 2021, the California Court of Appeal, First District rejected Johnson & Johnson’s appeal to exclude the testimony of an expert who found asbestos in Johnson & Johnson’s talc product.
The appeal was to overturn the verdict arising from a 2017 lawsuit filed by Teresa Elizabeth Leavitt. In her lawsuit, Ms. Leavitt claimed that she had used Johnson & Johnson’s baby powder for over 30 years. Her claims included that her mother had used it on her as a baby, and that she had used it as a dry shampoo and face powder.
After Ms. Leavitt’s trial resulted in a $29 million verdict in her favor, Johnson & Johnson filed an appeal to exclude the testimony of materials scientist Dr. William Longo.
Dr. Longo, who also participated in the landmark Daubert hearing on the admissibility of talcum powder expert witnesses, has a Ph.D. in materials science and engineering and worked in the U.S. Environmental Protection Agency in the peer review group for asbestos engineering. He also helped craft the American Society for Testing of Materials (“ASTM”) protocols for testing asbestos materials with a transmission electron microscope.
Judge Gordon B. Burns wrote an unpublished opinion for the court stating that he saw no reason to exclude the testimony of Dr. Longo, according to Bloomberg. Judge Burns, joined in his opinion by Justices Henry E. Needham Jr. and Mark B. Simons, rejected the idea that Dr. Longo relied solely on the analysis of two “vintage” talcum powder bottles procured from a collector, stating that this was not supported by the record of the trial. Judge Burns further argued that Dr. Longo’s conclusions would not have been any different had he excluded those two bottles.
Judge Burns surmised that the jury could reasonably infer that Ms. Leavitt’s talcum powder was contaminated with asbestos if the jury believed that Dr. Longo correctly identified asbestos in most samples taken from the same mines that produced the talc Leavitt used for decades.
Additionally, Judge Burns rejected the argument from Johnson & Johnson that the only way to establish Ms. Leavitt had been exposed to asbestos by Johnson & Johnson’s product would be to test the actual bottles she had used.
This rejection will leave standing the Alameda County jury’s verdict, who found Johnson & Johnson liable for negligence, design defect, failure to warn, and concealment claims. In their award of $29.4 million in compensatory damages, the jury stated that they assigned 98% of the responsibility for Ms. Leavitt’s injuries to Johnson & Johnson.