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Failure to warn of asbestos hazard from talc
April/May 2022Shawn Johnson used Johnson’s Baby Powder from age 5 until the time he went to college. He and his wife also used the powder on their seven children from approximately 1985 to 2019. At age 59, he was diagnosed as having peritoneal mesothelioma. Despite undergoing an invasive surgery, Johnson’s condition is fatal. His medical expenses were approximately $258,000.
Johnson and his wife sued Johnson & Johnson, alleging negligence, as well as strict liability failure to warn and defective design and manufacture. Among other things, the plaintiffs asserted that the defendant had failed to warn that its product contained asbestos.
The jury awarded approximately $27 million, including $25 million in punitive damages.
Citation: Johnson v. Johnson & Johnson, No. 20STCV17335 (Cal. Super. Ct. Los Angeles Cty. Oct. 12, 2021).
Plaintiff counsel: AAJ member Danny R. Kraft Jr., New York City; AAJ member Benno Ashrafi, Los Angeles; and AAJ member Joseph Mandia, Cherry Hill, N.J.
Comment: In Johnson & Johnson v. Shiver, 865 S.E.2d 283 (Ga. Ct. App. 2021), a Georgia intermediate appellate court reversed a trial court’s orders denying Johnson & Johnson’s motions to dismiss in four cases alleging that regular use of Johnson’s Baby Powder and Johnson & Johnson’s Shower to Shower talc products led to the decedents’ cancers and subsequent deaths. The court found that the plain language of Georgia’s Asbestos Claims Act requires a plaintiff filing an asbestos claim to include with the complaint a medical report setting forth medical findings necessary to establish prima facie evidence of physical impairment. In cases other than mesothelioma, the court said, this requires a board-certified physician’s report certifying to a reasonable degree of medical probability that the exposed person has a cancer other than mesothelioma; the cancer is a primary cancer; the exposure to asbestos was a substantial contributing factor to the cancer; and other potential causes, such as smoking, were not the sole or most likely cause of the injury. Here, the court found, the plaintiffs’ expert concluded only that there were no other environmental exposures that were the sole or most likely cause of injury and did not opine as to whether there were any other potential causes.