Texas’ first trial alleging Johnson & Johnson’s baby powder contained cancer-causing asbestos ended in a settlement Tuesday after just one witness testified.
The terms of the settlement J&J reached with Jerry Newton, who is dying of mesothelioma, and his wife are confidential, said Gibson, Dunn & Crutcher’s Collin Cox, who represented the company.
It was apparent to courtroom observers Tuesday morning the parties were nearing a settlement. Dallas County jurors, who arrived for the fourth day of trial, were kept waiting while lawyers tried to reach an agreement. Shortly after noon, 68th District Judge Martin Hoffman released the jury for the day, although jurors were not told a possible settlement was in the works.
Newton, 77, who attended the previous days of trial with his wife, son and daughter-in-law, was not present in the courtroom. Newton has said he used J&J’s talc-based baby powder for decades, beginning when he was a teenager.
Also on Tuesday, 43 states, including Texas reached a $700 million settlement with J&J, ending claims that the company was deceptively marketing its talc powder products as safe. Texas will receive more than $61.5 million from the settlement, a press release said.
The settlement with the states does not include any of the individual plaintiffs.
J&J has denied the talc long used in its baby powder was contaminated with asbestos. 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 the settlement with Texas and other states, J&J agreed it wouldn’t manufacture and sell talc-containing products in the U.S.
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.
In the Dallas case, plaintiff lawyers with Dean Omar Branham Shirley had only called to the stand a pulmonologist, Dr. Steven Haber of Houston.
Haber testified for about 14 hours over Thursday and Friday. His testimony included a damning review of internal company documents that he said show J&J was aware asbestos was detected in the talc it used and that talc causes cancers such as mesothelioma.
J&J has long argued that plaintiff lawyers “cherry-pick” quotes from internal documents to support their claims.
There would be a public “furor if it became known that our talc formulations contained any significant amount of tremolite,” one 1969 internal company document stated. Tremolite is a mineral that can be found in talc and can contain asbestos. “The law department should be consulted.”
A geologist was expected to testify for the plaintiffs. The trial was anticipated to last until the end of the month.
J&J is facing thousands of lawsuits from people who claim its baby powder caused their cancers. Last week, the Dallas-based DOBS law firm obtained a $260M jury verdict for an Oregon woman dying of mesothelioma. Many of the facts alleged in her case were mirrored in the Dallas trial.
Across the country, the 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.
The Dallas case is the state’s first J&J baby powder case to go to trial. Plaintiff lawyers have said it’s also the first talc case to go to trial in Texas.
The case number is DC-19-09317, Jerry B. Newton and Patsy Newton v. Johnson & Johnson et el.
J&J is represented at trial by firms Gibson Dunn & Crutcher and King & Spalding.
Law firms O’Melveney & Myers and Shook, Hardy & Bacon represented J&J on the state’s settlement.
That case number is D-1-GN-24-003624 in Travis County’s 455th District Court.