Legislation & Litigation

South Carolina J&J Baby Powder-Mesothelioma Case Ends in Mistrial

Written By:
May. 29, 2018
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Written By: Matt Mauney,
May 29, 2018
Talcum powder bottles

A South Carolina judge declared a mistrial Friday in a high-stakes case blaming asbestos-contaminated Johnson & Johnson Baby Powder for a woman’s mesothelioma.

Jurors failed to reach a unanimous decision in the case of Bertila Boyd-Bostic, who was diagnosed with pericardial mesothelioma at the age of 30 and died 15 months later.

Bostic’s husband, Antoine Bostic, sued Johnson & Johnson, talc supplier Imerys Talc America and drug store chain Rite Aid, alleging his wife’s death was caused by years of asbestos exposure from inhaling J&J baby powder. The 12-member jury could only reach a unanimous verdict for Rite Aid, which they found not liable for damages.

“We do not know at this time how this matter will be resolved, but be consoled by the knowledge that even though the verdict cannot be reached, you have helped move this case forward to resolution,” Judge Jean Toal told the jury after declaring a mistrial. “We can’t always agree about things like this, and this is a tough one, because there’s a lot of conflicting evidence on every point.”

Lawyers for Bostic plan to retry the case as soon as possible. The evidence, including a recorded deposition form Boyd-Bostic, will be presented in front of a new jury at an unscheduled date.

“We continue to believe that the daily use of talcum powder on Bertila from birth led to her death,” lawyers for Boyd-Bostic said in a statement. “She ultimately wanted to share her story with others through her suit. We look forward to retrying this case at the earliest opportunity.”

The trial was livestreamed and recorded gavel-to-gavel by Courtroom View Network.

Mistrial Follows California Verdict Against J&J

The mistrial comes on the heels of a victory for the plaintiff in a California trial linking J&J baby powder to deadly asbestos.

A Los Angeles Superior Court awarded $21.7 million Wednesday in compensatory damages to Joanne Anderson, who said she used the company’s iconic product extensively from the 1970s to the 1990s. An additional $4 million in punitive damages was issued Thursday.

J&J was held 67 percent liable in the case, with the rest distributed among other defendants.

In April, J&J lost their first talcum powder-mesothelioma case, when a New Jersey jury ordered the company to pay $117 million in total damages.

J&J also faces an estimated 6,000 lawsuits claiming the company’s talcum powder products caused ovarian cancer.

J&J Stands by ‘Spontaneous Mesothelioma’ Defense

As with Anderson’s case, J&J lawyers claimed Boyd-Bostic’s mesothelioma developed spontaneously or “idiopathically,” meaning without obvious reason.

J&J attorney Bruce T. Bishop told jurors 60 to 90 percent of mesothelioma cases in women have no direct connection to asbestos exposure and added that “cosmetic talc does not cause mesothelioma.”

Geologically, asbestos forms naturally with deposits of cosmetic and industrial-grade talc. Last year, asbestos-contaminated talc was found in children’s makeup sold by retailer Claire’s.

In her deposition from July 14, 2017, Bertila Boyd-Bostic said her use of baby powder dates back to infancy. She said her family used Johnson & Johnson Baby Powder daily and went through “a few bottles a month.”

“I used to put it in my shoes a lot, especially during the summer when it was hot,” she said. “We used it pretty heavily as a family.”

First Trial to Include Store That Sold J&J Baby Powder

This is the first J&J mesothelioma trial to involve the retail chain that allegedly sold the asbestos-contaminated baby powder.

In the trial, an attorney for Rite Aid argued that the drug store chain should not be a defendant in the case or held responsible for damages since the product in question was never banned or recalled.

After deliberating for roughly two hours, the South Carolina jury announced a unanimous decision in favor of Rite Aid but could not reach a ruling for J&J and Imerys. Toal sent the jury back to deliberate, but they returned after another three hours with no verdict for the remaining defendants.

“We have respectfully decided that we are going to agree to disagree,” a jury representative told Toal. “We have all decided that there is no way we can come to a unanimous decision.”

Rite Aid did not immediately respond to a request for comment from Courtroom View Network.

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