$29.4 Million Verdict for a Lifelong Baby Powder User With Mesothelioma, Affirmed by the California Court of Appeal
After trial: Affirmed in full by the California Court of Appeal, First Appellate District, on August 5, 2021 (No. A157572). We could not confirm whether Johnson & Johnson petitioned the California Supreme Court for review or whether the judgment has been paid; the October 2021 LTL Management bankruptcy stayed talc judgments and payment status is not public.
Won by Levy Konigsberg LLP.
An Alameda County jury found on March 13, 2019 that asbestos in Johnson's Baby Powder caused Teresa Leavitt's mesothelioma and awarded $29.4 million in compensatory damages, assigning 98 percent of the fault to Johnson & Johnson. Moshe Maimon of Levy Konigsberg tried the case with Joseph Satterley of Kazan McClain Satterley & Greenwood. It was the first talc trial to reach a verdict after the December 2018 press reports that the company had known of asbestos in its talc for decades. The California Court of Appeal affirmed the judgment in full on August 5, 2021.
What happened
Teresa Elizabeth Leavitt's mother dusted her with Johnson's Baby Powder as an infant, and Ms. Leavitt kept using it as an adult, as a face powder and a dry shampoo, almost daily for more than 30 years. In 2017 she was diagnosed with mesothelioma, the cancer of the lining of the lung and abdomen that is caused by asbestos. She and her husband, Dean McElroy, sued Johnson & Johnson and the talc miner Cyprus Mines Corporation in Alameda County Superior Court, alleging that the talc in the powder had been contaminated with asbestos for the whole of her life.
The case went to trial in Oakland before Judge Brad Seligman on January 7, 2019, the first Johnson & Johnson talc case tried after Reuters reported in December 2018 that the company had known for decades that its raw talc and finished powder sometimes tested positive for asbestos. Joseph Satterley of Kazan McClain Satterley & Greenwood and Moshe Maimon of Levy Konigsberg tried the case for the couple. Their materials scientist, William Longo, testified that he had found asbestos both in samples the company produced in discovery and in vintage bottles obtained from a collector. Johnson & Johnson, represented by Dentons and Nelson Mullins, maintained that its products had never contained asbestos and attacked Longo's methods.
On March 13, 2019, after more than two months of testimony, the jury found the company liable for negligence, design defect, failure to warn and concealment of a known danger. It awarded $24.4 million to Ms. Leavitt and $5 million to Mr. McElroy for loss of consortium, $29.4 million in all, and apportioned 98 percent of the fault to Johnson & Johnson and 2 percent to Cyprus Mines. The jurors declined to award punitive damages. The company said the verdict rested on serious procedural and evidentiary errors and that it would appeal.
It did, and it lost. On August 5, 2021, in Leavitt v. Johnson & Johnson (No. A157572), the California Court of Appeal, First Appellate District, affirmed the judgment in an unpublished opinion by Justice Gordon B. Burns, joined by Justices Henry E. Needham Jr. and Mark B. Simons. The panel rejected the company's central argument that Longo's testimony should have been excluded, writing that it saw no reason to exclude his identification of asbestos in the talc samples, and held that substantial evidence supported the jury's finding that the baby powder Ms. Leavitt used was more likely than not contaminated with asbestos.
The verdict was the first plaintiff win against Johnson & Johnson in a California talc mesothelioma trial, and it came in the same three-month stretch as Levy Konigsberg's $325 million Olson verdict in New York. Unlike Olson, it survived appeal. What the company has actually paid is not public: two months after the affirmance, in October 2021, Johnson & Johnson moved its talc liabilities into a new subsidiary, LTL Management, whose Chapter 11 filing froze talc litigation nationwide until the Third Circuit dismissed the case in 2023.
Sources
This account is drawn from contemporaneous public reporting and the court record.
- 1.Courtroom View Network, Mar. 13, 2019: verdict date, $24.4M/$5M breakdown, 98/2 fault split, no punitive damages, Judge Brad Seligman, Joseph Satterley and Moshe Maimon as plaintiffs' counsel, defense firms
- 2.Bloomberg Law, Aug. 5, 2021: Court of Appeal affirmance, case No. A157572, panel (Burns, Needham, Simons), Longo testimony challenge rejected, Ms. Leavitt's product use and 2017 diagnosis, jury findings on negligence, design defect, failure to warn and concealment
- 3.MedTruth, Aug. 2021: affirmance date, Justice Burns quote on Longo testimony, 30-plus years of use as dry shampoo and face powder
- 4.Courtroom View Network trial listing: trial dates January 7 to March 13, 2019
- 5.Fierce Pharma, Mar. 2019: first J&J talc verdict after the December 2018 Reuters report, company's appeal statement
- 6.Levy Konigsberg LLP (firm)
More proven verdicts from Levy Konigsberg LLP
All Levy Konigsberg LLP proven verdicts →A Manhattan jury found in May 2019 that asbestos in Johnson's Baby Powder and Shower to Shower caused Donna Olson's pleural mesothelioma, awarding $25 million in compensatory damages and $300 million in punitive damages, the largest talc verdict in New York history. Jerome H. Block of Levy Konigsberg tried the case. The trial court cut the award to $120 million in November 2020, and on July 19, 2022 the Appellate Division, First Department reversed outright and directed judgment for Johnson & Johnson, holding that the plaintiffs' medical expert never gave a scientific expression of the minimum lifetime exposure needed to cause the disease.
Moshe Maimon of Levy Konigsberg led the trial team that won a $117 million verdict for Stephen Lanzo III, the first jury finding that Johnson & Johnson talc caused a plaintiff's mesothelioma. The New Jersey Appellate Division reversed the judgment in April 2021 over inadmissible expert testimony, and no retrial or final resolution has been publicly reported since, with J&J's talc bankruptcy filings stalling the litigation for years.
A Boston jury awarded $43.1 million on October 12, 2018 to the widow and son of Louis Summerlin, a former brake mechanic and lifelong menthol smoker who died of lung cancer in 2015 at 73, finding R.J. Reynolds' Salem and Kool cigarettes defectively designed and the company guilty of fraud, while clearing Philip Morris and an auto parts distributor. Jerome Block of Levy Konigsberg tried the case with Michael Shepard of Shepard Law. It was the first trial in the country to take a lung cancer claim to verdict against both tobacco and asbestos defendants, and the largest verdict in New England that year.
In the first consolidated multi-plaintiff talc trial, a Middlesex County jury awarded $37.3 million on September 11, 2019 to four people who developed mesothelioma after their parents powdered them with Johnson's Baby Powder as children, and a second jury added $750 million in punitive damages in February 2020, which Judge Ana Viscomi cut to $186.5 million under New Jersey's five-times cap. Moshe Maimon of Levy Konigsberg tried the case with Chris Placitella and Chris Panatier. On October 3, 2023 the Appellate Division reversed every judgment and ordered new trials, holding that the trial court had admitted three plaintiffs' experts without the gatekeeping New Jersey law requires.
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