Jerry Newton began using Johnson & Johnson baby powder as a deodorant when he was a teenager.
He sprinkled the soft, white powder on his underarms, legs and in his shoes for years, even into adulthood when he moved out on his own, married Patsy Newton and had kids.
The J&J baby powder was his choice of deodorant because his mother had given it to him as a child, and she trusted the company’s advertisements depicting mothers cradling their babies and locking eyes adoringly, Newton’s lawyer Aaron Chapman, of Dean Omar Branham Shirley, told a Dallas jury Wednesday.
Newton is one of thousands of plaintiffs who are suing J&J, alleging the company knew its baby powder contained cancer-causing asbestos for decades but failed to warn consumers or regulators.
Now 77, Newton was diagnosed in 2019 with mesothelioma, a cancer in the lining of the lungs. Sitting in a motorized wheelchair and holding his wife’s hand, Newton faced the jury as his lawyer presented opening statements in 68th District Judge Martin Hoffman’s courtroom. The trial is expected to last the rest of the month, Hoffman told jurors.
Newton sometimes smiled as a slideshow including photos with his grandkids was displayed for the jury, his cheeks now dramatically slimmer than they were when the photographs were taken.
Chapman told jurors they will see internal company documents that prove J&J knew for decades the baby powder contained asbestos minerals including tremolite and chrysotile. Chapman shared snippets of those documents in his slideshow presentation Wednesday.
There would be a public “furor if it became known that our talc formulations contained any significant amount of tremolite,” showed one slide featuring part of an internal company document that Chapman said was written in 1969. “The law department should be consulted,” the document stated.
“They knew this day would come,” Chapman said. “They literally wrote that down.”
But Collin Cox of Gibson, Dunn & Crutcher, representing J&J, cautioned jurors to beware of confusing terminology. For instance, he said, a fiber referred to solely as tremolite means it does not contain asbestos, Cox said. The term “tremolite asbestos” indicates a fiber that contains asbestos, he said. J&J’s baby powder does not contain the carcinogenic type, he said.
“It’s easy to take advantage of this confusion and, unfortunately, we’ve already seen a little bit of that today,” Cox said.
DOBS, the Dallas-based law firm, won a $260 million jury verdict in Oregon on Monday on behalf of 49-year-old Kyung Lee who said her mesothelioma must have been caused by J&J’s baby powder. DOBS lawyer Ben Adams, who was part of the Oregon trial but is not on the Dallas trial team, told The Texas Lawbook that jurors who decided his client’s case gave credence to J&J’s internal documents.
But the baby powder trials have had varying results. A Sarasota, Florida, jury in April ruled in favor of J&J, deciding the baby powder was not responsible for the death of 72-year-old Patricia Matthey after she was diagnosed with ovarian cancer. In March, a Miami jury was unable to reach a verdict regarding the death of Marilyn Seskin after her ovarian cancer diagnosis.
Cox, in Dallas, reiterated J&J’s denial that its baby powder contained asbestos.
“Johnson’s baby powder does not contain asbestos. I’ll say it again. Johnson’s baby powder does not contain asbestos,” Cox said in opening arguments. “The baby powder could not and did not cause Mr. Newton’s cancer.”
Cox suggested Newton could have been exposed to asbestos in various jobs working on military bases and as a service repairman. The lawyer also mentioned Newton’s family has a history of different types of cancers to suggest Newton’s illness could be hereditary.
“One of the difficult realities is you just don’t know what caused it,” Cox said, offering sympathies to Newton and his family. “He understandably wanted answers. All of us would. Searching for answers is natural.”
In dispute is whether the talc mineral J&J uses in its baby powder can be free of asbestos. Cox argued J&J’s cosmetic grade talc is purified. Chapman argued asbestos can’t be separated from talc and likened it to the meat of a steak infused with fat veins.
The U.S. Food and Drug Administration website, updated April 5, states “more research is needed to confirm if there is a link or not” between talc-made powders and ovarian cancer. Published studies so far “have not conclusively demonstrated such a link, or if such a link existed, what risk factors might be involved.”
The FDA says, “Unlike talc, asbestos is a known carcinogen when inhaled” but warns contamination of talc with asbestos is possible. The agency says it continuously tests cosmetic products that use talc.
The Dallas case is DC-19-09317, Jerry B. Newton and Patsy Newton v. Johnson & Johnson et el.