A Pittsburgh jury tried to award $22 million to a plaintiff represented by Dallas-based Dean Omar Branham Shirley despite handing a defense victory to pharmaceutical giant Johnson & Johnson in a recent mesothelioma trial.
The jurors in Allegheny County found J&J was negligent but decided the company’s actions didn’t cause Michaeleen Lee’s fatal mesothelioma.
The jurors should have stopped there, according to the jury instructions. But they went on to answer “yes” to the question of whether J&J’s conduct warranted a finding of punitive damages and wrote $22 million on the verdict form returned Monday.
DOBS partner Jessica Dean, who represented Lee’s children in the trial, said she’s confident the jury didn’t understand the verdict it delivered.
“It was clear from their expressions, they thought that they had punished Johnson & Johnson,” Dean said. “While we didn’t recover, it’s unequivocal that they not only thought Johnson & Johnson committed bad conduct, but outrageous conduct.”
J&J, however, considers the verdict “vindication,” said Will Stute, a Miami-based King & Spalding partner who represented the company at trial. Lee’s death was a “terrible shame” but “had nothing to do with Johnson & Johnson baby powder,” Stute said. J&J was also represented by Tara Blake, a partner in King & Spalding’s Houston office, and Cori Steinmann of the firm’s Austin office.
J&J’s worldwide vice president of litigation, Erik Haas, issued a statement praising the verdict: “Yet another jury has refused to issue a verdict that adopts the baseless claims of the mass tort plaintiffs’ bar. As we have steadfastly maintained, this litigation is driven by paid-for science fomented and financed by plaintiffs’ firms — which in this instance was squarely refuted by the irrefutable evidence that plaintiff’s disease was caused by exposures other than the Company’s talc products.”
J&J’s lawyers at trial asserted that Lee’s mesothelioma was caused by asbestos in the Bucks Community College building where Lee worked for about 40 years. Lee alerted college officials to the health risk in a 1978 memo shown to jurors at trial. Testing results from the college were also shown in the trial and showed high levels of asbestos from 1978, when Lee sent the memo, to 2015, when she retired, Stute said.
“I think we spent more time trying to explain to the jury what actually happened to the plaintiff than the plaintiff’s counsel did,” Stute said. “The plaintiff’s counsel spent, probably, an inordinately larger amount of time attempting to convince the jury that Johnson & Johnson was a bad actor than dealing with the cold, hard facts here, which were 40 years of going to work every day from 9 a.m. to 5 p.m. in a building that was undeniably full of chrysotile and amosite asbestos.”
DOBS lawyers in this trial and others have said that mesothelioma can have multiple causes and that the latency period for the illness to develop can amount to many years. DOBS has been one of the leading plaintiff firms taking cases to trial against J&J.
Still, neither side had seen in their careers a verdict form that didn’t find cause but still attempted to award punitive damages.
The preamble before the punitive damage section was unclear, Stute said. He said he raised the concern while lawyers drafted the jury charge with Judge Philip A. Ignelzi of the Allegheny County Court of Common Pleas.
The jurors were polled and two said they did not agree with the verdict, but they were not probed further, Dean said.
Dean said her team will likely seek an appeal alleging that J&J failed to disclose alternative causation opinions that “altered the path of the trial” and accusing the company’s lawyers of violating Pennsylvania law by soliciting expert opinions from their corporate representative without designating him an expert witness.
Jurors were obviously frustrated by the length of the trial, which began with testimony Nov. 25 and dragged on longer than expected, Dean said. Jurors had been told the case would conclude before Christmas. Instead, they returned to court Jan. 2 and the case ended Monday. One juror informed the judge and lawyers that she was working a job on the evenings and weekends because she was struggling to pay bills, while another juror said her employer sent a letter stating their staff was “in crisis mode” while a colleague was on maternity leave, Dean said.
The trial started with four alternates, but by the end they were down to one, lawyers said. At points in the trial, the courthouse was without heat and the outside temperature was below freezing, Dean said.
“It’s hard to come in every day and feel like you have a really important job to do, but you’re truly torturing people,” Dean said.
Stute maintains that the verdict, while unusual, makes clear that J&J was not the factual cause of Lee’s mesothelioma. J&J is thankful the jury was thoughtful and paid close attention to the evidence, Stute said.
“You certainly can look at this verdict and scratch your head a bit, but it’s also undeniable that this is a defense verdict, and it’s a victory for Johnson & Johnson,” Stute said.
J&J has long denied that its baby powder caused cancer and Haas, its vice president of litigation, has accused plaintiff law firms of pushing “junk science” to win verdicts. Thousands of plaintiffs allege J&J knew asbestos was turning up in its baby powder for decades but failed to warn consumers or regulators. J&J offloaded its potential liabilities from lawsuits brought by women who claim their ovarian cancers were caused by J&J’s baby powder into its Texas-based subsidiary, Red River Talc, which then filed for bankruptcy.
The company announced in 2022 that it was discontinuing talc-based baby powder and would use cornstarch instead but denied the switch was due to unsafe talc. As part of a settlement with Texas and other states, J&J agreed it wouldn’t manufacture and sell talc-containing products in the U.S.
The DOBS team representing Lee’s family included Sam Iola and Jordan Bollinger of Dallas and Cori Kapusta, who works in the firm’s Pittsburgh office.
Johnson & Johnson was also represented by Val Leppert, a partner and appellate lawyer in King & Spalding’s Miami office.
The case number is GD 23-008055.