Judge Jane Morrison, Fulton County State Court. (Photo: John Disney/ALM)

Jurors heard opening statements Thursday in a Fulton County case accusing Johnson & Johnson of marketing talc-based baby powder that caused a woman to die from ovarian cancer decades after she began using the product as a teen.

The trial, expected to run for two weeks, opened one day after a New Jersey jury slammed the company with a $37.3 million verdict over claims its talcum powder caused four people to develop mesothelioma. Johnson & Johnson asked for a mistrial in that case after the judge struck its closing arguments.

The Georgia case before Fulton County Judge Jane Morrison centers on the 2016 death of Diane Brower who, according to court documents, used the company's baby powder in 1963. She was diagnosed with Stage 3 ovarian cancer a few years before her death. 

According to the lawsuit filed by Brower's executor and adopted granddaughter in Fulton County State Court, Johnson & Johnson knew for decades that there was a risk of ovarian cancer for women who applied its powder on or near their genitals but deliberately failed to warn them.

Allen Smith of The Smith Law Firm in Ridgeland, Mississippi. (Courtesy photo)

On Thursday, lead plaintiffs attorney R. Allen Smith of The Smith Law Firm in Ridgeland, Mississippi, told jurors the company knew as far back as the 1930s that the use of talc posed a health threat but opted to keep using it, even though it also marketed a cornstarch-based powder that breaks down in the body and poses no risk.  

"That's what makes this conduct so reprehensible," said Smith, noting that studies dating to the 1970s suggest a link between the use of talc and ovarian cancer. 

Unlike medical products, which require preapproval from the U.S. Food and Drug Administration, baby powder is a cosmetic that requires no review, he said. 

"There's no standard," said Smith, which makes it even more vital that companies warn their customers of known risks.

"Then there's a separate issue: Did Johnson & Johnson baby powder cause Ms. Brower's ovarian cancer?" Smith said. 

"We're going to show that it was a contributing cause," he said.

Smith noted that Brower had tubal ligation in 1980, so there was no way talc could have migrated into her ovaries after that. Even so, an examination of her ovarian tissue after her death showed the presence of talc.

"I'm not going to cherry-pick old evidence. I don't rely on what we knew five years ago. We're going to rely on state-of-the-art science," said Smith, whose team includes Ted Meadows of Beasley, Allen, Crow, Methvin Portis & Miles in Montgomery, and Sharon Zinns and Robert Register in the firm's Atlanta office.

James T. Smith, partner, b usiness litigation, Blank Rome, Philadelphia. (Courtesy photo)

Rising for Johnson & Johnson, lead defense attorney James Smith of Blank Rome in Philadelphia urged jurors to keep an open mind, saying the plaintiff's version of the case "just isn't true because the science doesn't support it."

Multiple peer-reviewed studies have shown the application of talc does not cause ovarian cancer, Smith said. 

"And any suggestion by plaintiffs counsel that there is some sort of conspiracy, cover-up, hiding document is not true," he said.

Warning jurors that there would be in-depth discussions of subjects that might make them uncomfortable, Smith said the issue of whether and how talc can migrate into a woman's ovaries is a "very contested point" of the case, and laid out the experts and studies he believes will support their thesis that no such evidence exists.

While there have been studies that show an association between the use of baby powder and ovarian cancer, Smith said they did not provide any evidence of linkage.

"Association doesn't mean cause," said Smith, using the analogy of bald men wearing hats.

"There's an association between bald men and hats, but we know hats don't cause baldness," he said.

The suggestion that talc is unsafe is groundless, he said, noting that the mineral is present in commonly consumed items such as Advil, Pepto-Bismol and chewing gum.

The case will be one of "competing experts," Smith said.

"None of the experts the plaintiffs will offer have ever published an article in a peer-reviewed journal that the perineal application of talc causes ovarian cancer," said Smith, whose team includes Debra Pole and Eric Schwartz of Sidley Austin in Los Angeles, Z. Ileana Martinez and Leslie Suson of Thompson Hine in Atlanta and Mark Hegarty of Shook, Hardy & Bacon in Kansas City, Missouri.

The verdict "can't be based on sympathy," he said, or upon "fear, anger, emotion. It has to be based on science."

The Brower litigation is one of more than an estimated 14,600 cases filed around the country claiming that Johnson & Johnson continued marketing its talc-containing products without warning women they could lead to an increased risk for ovarian cancer.