The importance of expert testimony at a trial cannot be overstated, as it oftentimes provides the edge one needs to win a scientifically complex case. The year 2018, in particular, saw some substantial verdict awards, which were earned in no small part due to expert testimony. Below are just a few examples of how expert testimony shaped the litigation landscape in 2018.
$4.7 Billion Verdict Against Johnson & Johnson for Baby Powder’s Link to Ovarian Cancer
The allegation that manufacturing giant, Johnson & Johnson, sells products contaminated with asbestos is not new. Internal company documents, which were exposed in December 2018 in special reports conducted by Reuters and the New York Times, indicated that Johnson & Johnson knew from at least 1971 that the company’s talc and Baby Powder products tested positive for small amounts of asbestos but failed to disclose this fact to the public. The 22 plaintiffs (6 of which were deceased) in Ingham, et al. v. Johnson & Johnson, et al., were some of the first to successfully argue the link between Johnson & Johnson Baby Powder products and ovarian cancer. The Missouri jury awarded the plaintiffs $4.7 billion in damages, which was notably upheld by the Circuit Court of Missouri, making it the sixth-largest products liability verdict in U.S. history.
With the company insisting that their products were safe, the verdict in Ingham was undoubtedly won by the plaintiffs’ experts who conducted their own tests to prove that the talc products were contaminated with asbestos. Medical experts testified that asbestos, a known carcinogen, was intermingled with mineral talc, and that asbestos fibers and talc particles were found in the ovarian tissues of the plaintiffs. With over 10,600 lawsuits pending against Johnson & Johnson alleging that their products cause ovarian cancer, the plaintiffs’ experts in Ingham have provided the groundwork for the success of any future trials.
$117 Million Verdict Against Johnson & Johnson in Mesothelioma Trial
With similar allegations of misconduct but different injuries, Johnson & Johnson took another substantial hit in Lanzo v. Imerys Talc America when a New Jersey jury awarded the plaintiff $117 million in damages after developing mesothelioma from Johnson & Johnson’s Baby Powder products. Mesothelioma, a type of cancer that affects the lining of the lungs, abdomen, and heart, has long been considered to be caused by industrial talc products. Allegations that cosmetic talc products cause mesothelioma, however, are relatively novel. Similar to the Ingham case, the plaintiff in Lanzo proved, through the company’s own internal documents, that Johnson & Johnson knew for decades that their talc products were contaminated with asbestos but hid this fact from consumers. The defendant’s knowledge and failure to warn about this risk was corroborated by its own corporate representatives, who testified that the company knew since the 1960s that asbestos exposure causes cancer. Dating back as far as 1969, Johnson & Johnson’s medical doctor warned the company to limit asbestos content in their powder products. Notably, the defendant’s own experts conceded at trial that a 1991 report indicating that certain brands of Baby Powder products contained asbestos had proven that the company’s products were contaminated.
The plaintiff’s expert, Dr. William Longo, conducted his own tests on bottles of Johnson & Johnson Baby Powder. He found that the talc contained in the products, which was mined from China, was contaminated with asbestos. Through the help of an electron microscope, the plaintiff’s expert testified that he found asbestos in more than half of the 32 samples he examined. With mixed success in previous trials (the company has won three mesothelioma cases, with four others being declared mistrials), the Lanzo verdict may signify a change in the tides for plaintiffs.
$289 Million Verdict Against Monsanto’s Roundup Weed Killer
Class action lawsuits against the agrochemical giant, Monsanto, have been accruing for years as plaintiffs allege the company’s Roundup herbicide product is toxic and unsafe. With thousands of cases consolidated by the United States Judicial Panel on Multidistrict Litigation for the Northern District of California, the case of Johnson v. Monsanto was the first of its kind to go to trial. The plaintiff, a 46-year old school groundskeeper, alleged that the company’s weed killers caused him to develop non-Hodgkin’s lymphoma. The lawsuit, filed in 2016 and acting as a bellwether for future Roundup litigation, was fast tracked for trial because of the severity of the plaintiff’s cancer, with doctors tragically estimating he was unlikely to live past 2020. After deliberating for three days, the San Francisco jury found in favor of the plaintiff and that Monsanto failed to warn him and other consumers about the cancer risk associated with its products. The jury awarded the plaintiff $39 million in compensatory damages and $250 million in punitive damages, the latter of which was cut down by a San Francisco judge to $39 million.
At trial, the plaintiff presented numerous independent studies and experts to establish that glyphosate, the main ingredient in Roundup, causes various types of cancer. The jury found the scientific evidence credible and compelling, and also found that Monsanto acted with malice by repeatedly rejecting expert research and warnings. With 4,000 similar cases pending before state and federal courts, the Johnson v. Monsanto verdicts could set a precedent for future litigation.
$68 Million Verdict Against C.R. Bard for Pelvic Mesh Medical Devices
Medical device company, C.R. Bard, suffered a huge loss in New Jersey court when a jury awarded the plaintiff $68 million in damages due to a defective pelvic mesh implant. The case of Mary McGinnis v. C.R. Bard, Inc. was a bellwether trial as part of New Jersey’s mass tort program. The plaintiff alleged that two of C.R. Bard’s pelvic mesh devices, which were implanted inside of her to treat pelvic organ prolapse and stress urinary incontinence, had caused her chronic pain and other injuries. After implantation, she began suffering from dyspareunia, pudendal neuralgia, and loss of bladder functioning. She alleged that the device, which is made of polypropylene, caused inflammation of her vaginal tissue. Because the mesh was not the proper size and was too large, it caused her body’s cells to launch protective attacks onto the device, damaging surrounding tissue. The device constricted inside the plaintiff after implantation. As a result, the plaintiff underwent three separate mesh removal surgeries, which involved extensive groin dissections to remove pieces of the devices. The two devices implanted in the plaintiff, Avaulta and Align, have been taken off the market in 2012 and 2016, respectively.
At trial, in order to establish the plaintiff’s injuries, Dr. William R. Welch, a surgical pathologist, testified that the amount of scar tissue found in the plaintiff was abnormal. The gynecologist who had implanted the device also testified as to the expected side effects. In addition, several plaintiff experts were used to establish that the pelvic mesh devices were unsafe and that C.R. Bard failed to adequately warn patients and doctors about the potential dangers. Ronald Bracken, a medical device marketing researcher and former Vice President for Strategic Initiatives for Bard, testified as to the design controls, failure investigations, 510(k) clearances, test methods, and polymer science. The plaintiff also called Jonathan Conta, a marketing representative for a project team that developed medical devices to treat pelvic organ prolapse. Conta testified that he was responsible for the marketing of the Avaulta Cassic device and was aware of the potential side effects, including chronic pain and vaginal erosion. In response to questions concerning the lack of clinical studies, Conta stated that: “Any product marketer would want as much clinical data as they could get, and I always wanted more.”
C.R. Bard has settled more than 13,000 cases since 2014. There are still more than 3,000 pending lawsuits against the company, which were consolidated before a federal judge in West Virginia, along with 150 lawsuits in New Jersey state courts.