Chris Panatier was three years out of law school in 2004 when he led his first jury trial. The Baron & Budd associate represented a client who had “mild silicosis” in a lawsuit against 3M in Dallas state district court.
“The jury took 30 minutes to announce that I’d lost,” he says.
Fifteen years and a couple dozen jury trials later, Panatier was back in court last Thursday once again standing with a client as a jury returned its verdict – this time in New Jersey.
Panatier’s client was David Etheridge, a 57-year-old Presbyterian pastor who was diagnosed with a rare and deadly type of cancer called peritoneal mesothelioma. The allegation is that Johnson & Johnson knowingly manufactured baby powder containing asbestos.
The 10-person jury deliberated two hours in a courtroom three blocks from J&J’s headquarters in New Brunswick, N.J. The verdict: $750 million.
“There is asbestos in their baby powder – there is no doubt about it,” Panatier, a partner at Dallas-based Simon Greenstone Panatier, told The Texas Lawbook in an interview Friday. “Mr. Etheridge is going to die. This verdict was about punishment and deterrence”
Etheridge was one of four plaintiffs in the case.
The first phase of the trial occurred last summer, when a jury ruled on Sept. 11 that asbestos-laced talc powder made and sold by the pharmaceutical giant was responsible for their deadly cancer. The jury awarded the four plaintiffs $37.2 million, including $9.45 million to Etheridge.
“I went through a banker’s box a day – a total of a million documents in all.“
The state court judge then selected a second jury in January to decide if punitive damages were appropriate.
After 10 days of testimony and arguments, the jury found J&J acted “maliciously or in wanton disregard” in selling their product to Etheridge and the other plaintiffs and awarded the additional $750 million in punitive damages.
A critical point in the trial came when J&J CEO Alex Gorsky took the witness stand.
Panatier cross-examined Gorsky about statements he made on national television assuring consumers that the baby powder was safe and that there was no evidence of asbestos in the product.
But the Dallas lawyer then pointed out to Grosky that he had later signed sworn affidavits saying he had no knowledge of any of the science or J&J’s test results of the talc powder.
“Grosky said he relied the information the company’s medical experts had told him when he made the TV statement and he only stated what they had told him,” Panatier said. “But then I was able to show the sworn testimony of J&J’s medical experts, who stated clearly that they never briefed Grosky on their findings.”
Officials with Johnson & Johnson vowed to appeal. The company denies there is any asbestos in its baby powder.
Weil, Gotshal & Manges represented J&J in last summer’s trial. Skadden Arps and King & Spalding led the defense in the punitive damage phase.
Simon Greenstone Panatier, which has 22 lawyers, is currently representing more than 200 plaintiffs in 37 states against J&J, which has a market cap of $400 billion.
“The science in these cases is extremely dense,” Panatier said. “I literally put thousands of hours of work into these cases. I went through a banker’s box a day – a total of a million documents in all.”
There are an estimated 15,000 cases against J&J pending in U.S. courts. To be sure, these cases are not guaranteed slam dunk wins for plaintiff’s lawyers. Johnson & Johnson has won as many or more cases than it is has lost. But the losses have been spectacular.
Last year, another New Jersey jury ordered J&J to pay $117 million to an investment banker who says he has mesothelioma from using talc powder. In 2018, a Missouri jury awarded $4.69 billion to 22 women and their families who claim that the baby powder caused their ovarian cancer. J&J is appealing both of those verdicts.
Simon Greenstone Panatier, for example, has taken nine of their cases to trial. They won three, lost three and had three mistrials.
The three wins include Panatier’s case in New Jersey and judgments of $26 million and $40 million in California. The firm also settled a case with Johnson & Johnson in Oklahoma, but the terms of the agreement remain confidential.
“J&J has an unpredictable settlement model,” he said.
A 2001 graduate of the University of Texas School of Law, Panatier said he decided to be a trial lawyer following high school debate and competing in mock trial.
“Plus, I didn’t have the grades for anything else,” he said.
Panatier said that he knows law firms turned away hundreds of potential clients over the years because the science and evidence wasn’t there connecting J&J’s baby powder to mesothelioma.
“This case is really about the fact that J&J structured their last 50 years of conduct around concealing that there were, and have always been, asbestos fibers in their baby powder,” Panatier said. “They designed test methods that they knew lacked the sensitivity to detect the asbestos that was present and then on the occasions when asbestos was found, took steps to make excuses, blame non-existent contamination, delete and alter test results. The jury saw all of that.”
Here is a link to David Etheridge’s testimony before the U.S. House of Representatives Committee on Oversight and Reform on Dec. 10, 2019.
The other three plaintiffs were represented by Moshe Maimon of Levy Konigsberg in New York and Chris Placitella of Cohen, Placitella, & Roth in New Jersey.
The case is Barden, et al. v. Johnson & Johnson, et al. in the Superior Court of New Jersey Law Division, Middlesex County, Docket No.: MID-L-1809-17 AS.