BigLaw lawyer's closing argument struck by judge in case alleging talcum powder caused mesothelioma
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A New Jersey judge struck a BigLaw attorney’s closing argument for Johnson & Johnson on Wednesday in a case alleging asbestos in the company’s talcum powder caused mesothelioma in the plaintiffs’ stomach linings.
Judge Ana Viscomi of New Brunswick struck from the record the entire argument made by Diane Sullivan, a litigation partner with Weil, Gotshal & Manges, Law360 reports. Sullivan was recently among 26 lawyers named a 2019 winning litigator by the National Law Journal in a story that highlighted her defense verdict for Johnson & Johnson in another case.
Sullivan had referred to creating evidence and “lawsuit fiction” in her closing, according to Law360.
According to the story, Sullivan told jurors that experts for the plaintiffs didn’t draw a connection between talcum powder and mesothelioma until they were hired by the plaintiffs. She pointed to studies of workers who mined talc used in baby powder that found they did not contract mesothelioma or asbestosis.
“When you don’t have evidence, sometimes you have to create it,” Sullivan said.
Sullivan asked jurors to give a fair shake to a big company. “You can see the difference between science, the truth and facts in the real world, and lawsuit fiction,” Sullivan said.
Viscomi said the closing argument was “replete with conduct this court has already warned you about,” according to the Law360 account. It would be impossible to strike only the inappropriate comments while leaving in the appropriate ones, Viscomi said.
Sullivan protested that Viscomi’s decision was “draconian and unfair,” leading the judge to tell her to “stop the outbursts,” according to the Law360 account.
The plaintiffs in the case are D’Angela McNeill-George, Will Ronning, Douglas Barden and David Etheridge. They say they were exposed to asbestos in talcum powder when they were babies, according to earlier Law360 coverage.
Johnson & Johnson counters that its product did not contain asbestos. Even if the plaintiffs’ experts were correct about finding the product in talcum powder, the amount was “not enough asbestos to give an ant cancer, let alone a person,” Sullivan told jurors in opening statements.
About 13,000 plaintiffs have filed lawsuits contending that baby powder and Shower to Shower made by Johnson & Johnson caused ovarian cancer or mesothelioma, according to Reuters. Jurors in one case awarded nearly $4.7 billion in a suit claiming the products caused 22 women to get ovarian cancer.
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