Alex Gorsky, chairman and CEO of Johnson & Johnson, takes the stand as he is questioned by the plaintiff's lawyer Chris Panatier, in New Jersey Supreme Court in New Brunswick on Jan. 27. Photo: Reuters/Lucas Jackson

A Manhattan judge has sanctioned plaintiffs attorneys in a talcum powder case for their "frivolous" behavior in disclosing the deposition of Johnson & Johnson's CEO to the news media in violation of a protective order.

New York Supreme Court Justice Manuel Mendez found that attorneys at Simmons Hanly Conroy, in disclosing the deposition to Reuters before a 30-day window outlined in the protective order, was inappropriate, according to his Jan. 14 sanctions order.

"Their handling of the deposition videotape and transcript to the press, allegedly because Reuters requested it, and publishing a link on their website before the defendants could review and seek protection of any sections was frivolous and done to harass the defendants," he wrote.

He ordered a Feb. 24 hearing before a special master to determine the amount of attorneys' fees and costs awarded to Johnson & Johnson, which brought the sanctions motion after Reuters published an article featuring the deposition of CEO Alex Gorsky.

Neither the plaintiffs attorney in the case, Jim Kramer, shareholder at New York's Simmons Hanly, nor Thomas Kurland, counsel at Patterson Belknap Webb & Tyler in New York, who filed Johnson & Johnson's sanctions motion, responded to requests for comment. In a statement, Johnson & Johnson said, "We respectfully await the judge's ruling on what we believe was a serious breach of the legal process set forth by the court and agreed upon by the parties."

The sanctions order comes in one of thousands of lawsuits across the country alleging Johnson & Johnson's baby powder caused mesothelioma, a deadly lung cancer, or ovarian cancer. On Jan. 27, in a separate case in New Jersey's Middlesex County Superior Court, Gorsky testified for the first time at trial. That case involves four mesothelioma victims who won a $37.3 million verdict in the case and are now seeking punitive damages.

In the case involving the sanctions order, Indianapolis residents Donald Minassian, diagnosed with mesothelioma in 2017, and his wife, Elaine Minassian, brought claims in 2018 against Johnson & Johnson and several other companies. Earlier last year, Johnson & Johnson fought their request to depose Gorsky, who appeared on CNBC's "Mad Money," hosted by Jim Cramer, in December 2018. A special master granted the request, but Mendez, in a July 18 order, limited the deposition to questions related to Gorsky's CNBC interview and the period of time that Minassaian used talcum powder.

Gorsky testified that Johnson & Johnson's baby powder was safe during his Oct. 3 deposition, which occurred 13 days before the U.S. Food and Drug Administration found asbestos in the product, prompting the voluntary recall of 33,000 bottles. According to Johnson & Johnson's Nov. 4 motion, Kramer gave Reuters the deposition, including the video recording, fewer than 20 days later, in violation of a protective order that required both sides to wait 30 days before making it public. Reuters published an Oct. 22 article that quoted from the deposition. Simmons Hanly also published a press release about the deposition Oct. 23, with links to the article.

Such a "blatant violation," Kurland wrote, is a "frivolous" act to support "an extrajudicial media campaign which has no relevance to plaintiffs' case and is only designed to prejudice the J&J defendants in the minds of the public and any potential jury pool."

"There can be little dispute plaintiffs' counsel's conduct was undertaken not to advance plaintiffs' legitimate interests in prosecuting their specific case, but rather to prolong the resolution of this litigation as a whole and to harass the J&J defendants and their employees," he wrote.

Johnson & Johnson sought a ban on additional depositions of its employees and monetary sanctions.

In opposing the motion, which they called "frivolous," Simmons Hanly lawyers disputed whether the deposition was confidential and added that both sides agreed to waive its sealing. In a Nov. 13 response, they wrote there was no "actual prejudice" to Johnson & Johnson, which, when asked to provide depositions of five additional employees, brought the sanctions motion as a "tactical maneuver designed to impede discovery."

In an affidavit, Kramer said he did not "independently contact Reuters or any member of the media" but admitted that he gave the deposition transcript to a Reuters reporter.

"The J&J defendants' indignant accusation that plaintiffs' counsel is trying to use publicity to poison the jury pool is not only purely speculative, but also rather hypocritical given that Mr. Gorsky went on national television to spin J&J's version of the substantive merits of the litigation," the Simmons Hanly lawyers wrote. "It is interesting, in that regard, that J&J asks the court to restrict only plaintiffs' interactions with news media, while J&J would presumably remain unfettered in publicly commenting on the litigation as it pleases."

But Mendez, in his sanctions order, said the protective order clearly applied to the entire deposition, not just the materials, and that the waiver was a standard "stipulation used at all depositions." He declined to halt the depositions, calling that a "broad injunctive sanction affecting discovery," but allowed Johnson & Johnson to obtain costs and fees incurred in bringing the sanctions motion.

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