Trial Opens Over Lawyer's Death Allegedly Caused by J&J's Baby Powder
The trial against Johnson & Johnson claims an attorney's lifetime use of its baby powder caused her to get one of the deadliest forms of cancer.
May 18, 2018 at 05:31 PM
5 minute read
The original version of this story was published on National Law Journal
Photo: Shutterstock
Bertila Boyd-Bostic was looking forward to starting a family once she and her husband, Antoine Bostic, both graduates of Mercer University School of Law in Georgia, had built their own law firm, Bostic & Boyd, in Columbia, South Carolina. But in 2016, she was diagnosed with mesothelioma and, on Oct. 29, died at age 30.
Her husband is now part of a trial against Johnson & Johnson, claiming Boyd-Bostic's lifetime use of its baby powder caused her to get one of the deadliest forms of cancer.
“The evidence in this case will show that Johnson & Johnson's baby powder, used by Bertila on and off for 30 years, contained asbestos,” said plaintiffs' lawyer W. Christopher Swett during opening statements on Monday, according to Courtroom View Network's broadcast of the trial. He said Johnson & Johnson hid the fact that its baby powder contained asbestos. “And the evidence will show that asbestos-containing Johnson & Johnson's baby powder caused Bertila's mesothelioma and her death.”
Defense attorney Bruce Bishop said in his opening statement that Johnson & Johnson's baby powder did not cause Boyd-Bostic's mesothelioma, which was a rare form of the disease that struck the heart rather than the lungs.
“What you won't see, and what you won't hear, is any evidence from the medial records, or from any of her treating physicians, that pericardial mesothelioma had anything to do with asbestos or anything to do with Johnson & Johnson's baby powder,” said Bishop, of Willcox & Savage in Norfolk, Virginia.
Other defense attorneys appealed to the emotional sensitivities of the case.
“This is a hard case. I can't sit here and pretend this is not tragic,” said Michael Brown, a partner at Nelson Mullins Riley & Scarborough in Baltimore, Maryland, who also represents Johnson & Johnson. During his opening statement, he turned to Boyd-Bostic's family and said, “I'm sorry for your pain.”
The trial, which began on Monday, is the latest to allege that Johnson & Johnson's talcum powder products caused mesothelioma. On Nov. 16, Johnson & Johnson and Imerys Talc America Inc., a talc supplier, won a Los Angeles Superior Court trial—the first alleging their cosmetic talc products caused mesothelioma. But last month, a New Jersey jury in Middlesex County Superior Court found them liable for a man's mesothelioma and, on April 11, slapped both with a $117 million verdict.
Meanwhile, another trial is wrapping up against Johnson & Johnson in Los Angeles Superior Court. Dallas-based Simon Greenstone Panatier, which spearheaded the first mesothelioma trial against Johnson & Johnson, is handling that case, brought on behalf of Joanne Anderson. Leading Johnson & Johnson's team in that trial, which began on May 2, are Mel Bailey of Dallas-based Bailey Crowe Arnold & Majors and King & Spalding's Alexander Calfo, a partner in Los Angeles, who also was involved in the first mesothelioma trial against Johnson & Johnson.
The cases are separate from thousands of lawsuits brought by women and their families claiming Johnson & Johnson's talcum powder products caused ovarian cancer. Those trials have ended in verdicts ranging from $55 million to $417 million, although courts have reversed some of the awards.
Unlike the ovarian cancer cases, the mesothelioma claims focus on whether cosmetic talc products contain asbestos, a known carcinogen. The South Carolina trial, in Darlington County Circuit Court, also is the first talcum powder case for Motley Rice, a plaintiffs firm known for its asbestos work. In addition to Swett, an associate in the Mount Pleasant, South Carolina, office, firm members Marlon Kimpson and Nathan Finch, in Washington D.C., are handling the trial.
Bertila Boyd-Bostic.
The case also names Imerys, represented by Moffatt McDonald, a shareholder at Haynsworth Sinkler Boyd in Greenville, South Carolina, and Rite Aid of South Carolina, the drug store where Boyd-Bostic's aunt allegedly purchased Johnson & Johnson's baby powder when she was an infant. A lawyer for the drug store company, Sarah Johnston, a partner at Barnes & Thornburg in Los Angeles, told the jury she was at a loss as to why her client was in the trial.
“I frankly don't know,” she said, according to the Courtroom View Network broadcast. “I think we're in this case because Rite Aid stores sell things, and that's about as far as I've gotten.”
Swett's opening statement focused on the mines that Johnson & Johnson used since 1968 and its decision not to find a safer alternative even after its own testing revealed asbestos in the talc. He also noted that no one could link Boyd-Bostic's mesothelioma to any other possible exposure to asbestos.
But Brown countered that not all talc mines are the same, and the mines that Johnson & Johnson used didn't have asbestos.
In a statement, Imerys spokeswoman Gwen Myers wrote: “Imerys sympathizes with those suffering from mesothelioma, but our talc did not cause Ms. Boyd-Bostic's cancer. Talc is safe and does not cause mesothelioma. This confidence is supported by a recently published study of workers who mined and milled talc all day over the course of more than 50 years that did not find a single case of mesothelioma. Imerys follows all FDA and other regulatory guidelines, and uses rigorous testing to ensure that our talc meets the highest quality standards.”
Johnson & Johnson spokeswoman Carol Goodrich also wrote: “Johnson's baby powder has been around since 1894 and it does not contain asbestos or cause mesothelioma. We will continue to defend the safety of Johnson's baby powder.”
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