The Johnson & Johnson Cases and the Importance of Experts

The Johnson & Johnson Cases and the Importance of Experts

On December 16, 2019, Johnson & Johnson (“J & J”) prevailed at trial in Fong v. Johnson & Johnson in California Superior Court, Los Angeles County.  This victory was J & J’s latest in a series of lawsuits which alleged their baby powder products contain ingredients such as asbestos, resulting in the plaintiffs’ medical complaints, including fatal cancers.  This is the third victory in a row for J & J in the high-profile lawsuits often referred to as the “talc cases.”  In this particular case, the plaintiff Pui “Amy” Fong alleged asbestos in J & J’s products led to her mesothelioma.  The jury was not convinced.

J & J’s victory in this matter rested largely on its attorneys’ efforts to discredit the sworn testimony of plaintiff’s expert witnesses. J & J’s attorneys dug up inconsistent testimony in prior matters by plaintiff’s microscopy expert, and used errors in his data reporting to question the veracity of his expert testimony regarding whether J & J’s products contained asbestos. The jury ultimately found J & J’s baby powder was not defective, and did not pose a danger to J & J’s customers, thoroughly repudiating the testimony from plaintiff’s expert to the contrary.

This case underlines the importance of thoroughly vetting your own experts, and performing thorough investigations into the backgrounds and prior testimony of the experts designated by the opposing side.  According to California Evidence Code Section 720, “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.”

An attorney preparing for trial can reasonably anticipate their expert witnesses will be questioned by opposing counsel regarding the expert’s qualifications and previous work in the field related to which he plans to testify, including prior work as an expert witness in other trials.  (See Cal. Evid. Code § 721.)  It is therefore crucial when selecting an expert to research whether and to what extent the expert may have provided testimony that may be seen to contradict the testimony you intend to present at trial.

In the Fong case, counsel for J & J was able to unearth transcripts of plaintiff’s expert testifying he had tested cosmetic talc in the lab prior to 2016, in direct contradiction to the testimony the expert presented at trial.  Counsel was then able to use this contradiction to suggest to the jury all of plaintiff’s experts were changing and falsifying their data to suggest talc contains asbestos and causes mesothelioma, after never having said this before being hired by plaintiff’s attorneys.

In sum, “a party may impeach an expert witness by contradiction, i.e., by showing the falsity of any matter upon which the expert based his opinion. This can be done either by cross-examination of the expert or by calling other witnesses to offer evidence showing the nonexistence or error in the data upon which the first expert based his opinion.” (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 922–923.)  In Fong, J & J’s lawyer so thoroughly impeached plaintiff’s experts, it won their client the entire trial.

Keep Reading

More by this author