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J&J Fails to Escape Jury’s $29 Million Award in Baby Powder Suit

Aug. 6, 2021, 1:26 AM

Johnson & Johnson failed to convince a California appellate court Thursday to throw out a $29 million award from a jury that found its baby powder contained asbestos and caused cancer in a woman who said she used the product for over 30 years.

Teresa Elizabeth Leavitt said her mother applied Johnson & Johnson baby powder to her as a baby, and that she continued to use the product as a face powder and dry shampoo. She was diagnosed with cancer in 2017, and sued the company in California state court.

A jury in Alameda County found the company liable on negligence, design defect, failure to warn, and concealment claims, and awarded Leavitt $29.4 million in compensatory damages, apportioning 98% of responsibility to Johnson & Johnson.

The California Court of Appeal, First District, affirmed the award, rejecting Johnson & Johnson’s challenge to the testimony of a materials scientist who said he found asbestos in samples of baby powder.

Dr. William Longo testified that he tested two types of Johnson & Johnson baby powder, samples provided by the company, and “vintage” bottles obtained from a collector. He said he found asbestos in both.

Nothing in the record supports the company’s argument that Dr. Longo based his testimony solely on results from the vintage samples, or that his opinion would have been different if they excluded those samples, Justice Gordon B. Burns wrote for the court.

And substantial evidence supports the jury’s finding that more likely than not, Johnson & Johnson’s baby powder was contaminated with asbestos when Leavitt used it, Burns wrote in the unpublished opinion.

If the jury believed Dr. Longo correctly identified asbestos in most of the samples from the same talc mines that produced the talc Leavitt used for decades, it could reasonably infer that the powder she used was similarly contaminated, Burns said, rejecting the contention that Leavitt couldn’t establish exposure without samples from the actual bottles she used.

Substantial evidence supports the jury’s implicit finding that Leavitt’s exposure to the baby powder was more than a negligible or theoretical contribution to her injury, Burns said.

Justices Henry E. Needham Jr. and Mark B. Simons joined the opinion.

Kazan McClain Satterley & Greenwood represents Leavitt. King and Spalding, and Orrick Herrington & Sutcliffe LLP represent Johnson & Johnson.

The case is Leavitt v. Johnson & Johnson, Cal. Ct. App., 1st Dist., No. A157572, unpublished 8/5/21.

To contact the reporter on this story: Maeve Allsup in San Francisco at mallsup@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Meghashyam Mali at mmali@bloombergindustry.com