Jessica Dean fiddled with a Gatorade bottle in her hands as tears brimmed in her eyes. The name partner at Dallas-based Dean Omar Branham Shirley paused before talking about the people she’s represented who died from mesothelioma that she believes was caused by a product they trusted: Johnson & Johnson baby powder.
Dean’s firm, DOBS, was in back-to-back trials last year across the country against the pharmaceutical giant over allegations its talc-based baby powder contained cancer-causing asbestos. During an October interview with The Texas Lawbook in her Dallas home, Dean was in between trips to Boston and Pittsburgh to try cases.
“I believe, in a lot of the cases we work on, we allow someone who’s lost their life to bad conduct to be remembered in all sorts of fun ways: in the minds of jurors, in the minds of judges,” Dean said. “A case can live for years.”
J&J in 2022 announced that it was discontinuing talc-based baby powder and would use cornstarch instead, but the company has denied the switch was due to unsafe talc and has argued its baby powder does not cause cancer.
DOBS has rejected J&J’s settlement offers that Dean said were conditioned on the firm settling all of its current and future cases, opting to go to trial instead.
The work has taken a toll, she admitted. But she vowed to continue the fight.
The following interview has been edited for length and clarity.
What’s keeping you busy right now?
Our next trial against Johnson & Johnson.
What would you point to as some of the biggest trials that you’ve handled?
Certainly in the last four years, my focus has been on cosmetic talc. And the reason those feel bigger and more important is they’re unlike cases I’d been doing for many years before where you deal with products that hurt people badly that were almost uniformly off the market. Something feels different when you’re representing people against companies still selling products that people are still using. Even when we got incredibly amazing news that Johnson’s baby powder was not going to be sold with talc in this country, they’re still selling it all over the world. So those cases feel more important.
Are there one or two high profile public matters that you are currently involved in that we can highlight? Sounds like the Johnson & Johnson cases.
The Johnson & Johnson stuff is a big deal. I will also say … we have clients that are creditors in bankruptcy, companies filing bankruptcy to get in front of Judge Michael B. Kaplan, who is a judge in Trenton, New Jersey. He’s the one that allowed J&J to stay in bankruptcy for months, delaying people’s cases while our clients died. And then the Third Circuit came in and said, “No, this is not acceptable.” He is allowing more bankruptcies to go on, and he is allowing things to occur that we believe any appellate court is going to reverse. And so it’s not in the public media, but companies who use corporate machinations to hide what money they have and have an extraordinary amount of money, and then try to take the underfunded shells of the company and put them in bankruptcy. And then a bunch of bankruptcy lawyers, including the lawyers that we hire, get paid a bunch of money that are all in a tight circle with the bankruptcy judges. It’s a cottage industry that is so concerning because it’s trying to bypass jury systems and judicial systems with companies that have done what we believe are provable terrible things, and that have money and find a way to game our judicial system.
What news developments or trends in law are you particularly keeping an eye on at the moment?
What happens with bankruptcy. The opioid crisis is a perfect example. A lot of people have seen in the news that there were horrible actions by a lot of companies in order to over-prescribe opioids, and they just destroyed the lives of tons of people — from young football players that got addicted to all sorts of people. And once the story came out, once you go through the extraordinary effort to pin down the actions of really powerful large companies, they went into bankruptcy. And look, they convinced most people, through their lawyers who had massive financial gain, to agree to the bankruptcy. This is happening with ovarian cancer right now. I have a lot of feelings about why people are agreeing and why that’s not actually in the best interest of the people that are dying or hurt. But the more simple legal issue is, if you don’t consent, if you’re one of the people that don’t, can you be pushed? Can your rights be pushed out by the majority? I’m following it because I think they’re going to do the same thing with what Johnson & Johnson is trying to do right now. And I just don’t think Americans understand what this means. If horrible companies can get to greedy plaintiffs lawyers and make deals in bankruptcy and the people that are hurt are not sophisticated in this process or are dealing with the worst medical situation of their entire life, they become the victims. I’m watching that carefully.
What is a trial that you weren’t involved in that you wish you had been, and why?
So many. Rick Friedman is a plaintiff’s lawyer who has written really good books that have moved me about how to think about things. He took on Monsanto in these trials where entire school systems have all these patterns of diseases that he was able to tie to Monsanto’s products, but doing so was incredibly difficult. Monsanto, again, is a giant company that made that incredibly difficult, and I’ve read parts of that trial, the entire closing argument. I find it so moving. I think what they’re doing is moving. I’ve talked to their lawyers, and I just feel like in any industry, there’s good and bad; and then there’s spectacular. And these are just great people. They’re great minds. They work hard and they’re motivated by all the right things. And I really wish I could have helped. They won against all odds, and now they’ve kind of motivated a lot of other people to pay attention.
Do you have any pre-trial rituals?
On a practical level, making sure you’ve thought through, both personally and professionally, what you’re not going to be able to do during the time of trial. You’re also really dealing with the reality that you’re not going to be a very good wife or mother or whatever it is, because you’re going to be somewhere else working 20 hours a day, and it’s trying to make sure you’re letting the people in your life that love you know, and organize that.
But right before I start trial, there’s this song by Macklemore called “Glorious.” The first verse says something like we die twice: once when we actually are buried, but another time when the last person says your name. I believe in a lot of the cases we work on we allow someone who’s lost their life to bad conduct to be remembered in all sorts of fun ways: in the minds of jurors, in the minds of judges. A case can live for years. And there’s other beautiful messages in the song about: Do we live a life where we gave more than we took? At the most tiring time in the trial, it’s just this beautiful reminder. So, I’m almost always listening to it way too loud in a hotel room.
What is your favorite task to handle at trial and why?
Closing. It’s taking everything and putting it together — all of the facts and how it corresponds with the law. It’s this time to put it all together and empower our community to do the right thing.
What’s your least favorite part of trial?
The first half of trial is hard. It’s hundreds of motions, thousands of page-lines for depositions, trying to get experts where they need to be, trying to get your team organized, trying to make sure the judge doesn’t get overwhelmed. It is truly an art of organization, and calming when you don’t feel calm. You do it more often as well, because the three weeks leading up to trial and in the first part of trial are the parts that happen over-and-over-again. And the other side realizes, “They really are going to do this.” They usually break. You don’t get to the second half. You don’t ever get to the closing.
How do you celebrate after a trial win?
I really don’t. I mean, I will usually take the family out and have some kind of celebration. After one case, the family wanted me to drink tequila out of a boot. For the trial team usually there’s some kind of nice dinner, or when you get home, there’ll be a celebration, a happy hour. But personally, whether I win or lose the trial, it is a very hard time. I’ve talked to other lawyers that try cases where there’s a lot of loss. You’ve been in this very intense period where every minute of your time is spoken for. Even when you’re showering, you’re usually trying to do two or three things at a time. And you feel disconnected from everyone and everything. You desperately miss your family and your friends, but you don’t really know if they’re just talking about their day because the back of your head is still like, “I need to be doing these things,” and it’s like this very weird disconnect. And so, I often, if I can, spend a few days on the floor with my dog, watching some kind of sad movie that makes me cry. It somehow is therapeutic. I think it helps you process what just happened.
If you weren’t a lawyer, what career do you think you would have chosen instead?
I’d probably be a waitress. No one in my family had gone to law school. It was only because I had a high school debate coach that really pushed me to go to a debate camp that I was even around kids that talked about college, let alone law school. I was an IHOP waitress then. I probably would have stuck to being a waitress. I actually really like waitressing. I did it in high school. I did it in college, in law school.
Are you also a people person?
Yeah. COVID was very, very hard for me. I am a true extrovert. I have a lot of deep and meaningful relationships because of what I do. I meet people that are at the most vulnerable time in their life. I truly have this amazing job where I feel like I have family all over the place. But I need nonsense discussion. I need chit-chatting about nothing in the Starbucks line.
What am I not asking you that you’d like to share with our readers?
I think this will dovetail into what we were talking about before. Yes, Johnson & Johnson has truly taken over much of my thoughts — probably too much of them. But I think that they are not alone. Just because I’ve understood their story on a deep level, I don’t think that they are probably the only corporation that has these problems, and I think we have a crisis as a nation. What I have come to learn and believe are two things. One, they don’t make their decisions about product safety with scientists or data or doctors. They make them based on lawyers who are defending their money. And there’s just such clear proof that that’s the case. We all have J&J products in our home, whether it be medical devices or pharmaceuticals, because we’re in some kind of crisis in our life; or one of their many cosmetic brands. And the idea that that is their driver should be terrifying all of us.