Partway through a trial over allegedly asbestos-tainted baby powder that ended with a $4.69 billion verdict against Johnson & Johnson in St. Louis earlier this year, attorney Mark Lanier whipped a knife from out of his pocket and held it over a large block of yellow cheese.
“You’ve got Bailiff Jim over there just looking for an excuse to shoot, so I looked at the judge and said `Am I allowed to do this?’” Lanier recalled at a recent meeting for mass tort trial lawyers. “`For now,’ the judge said.”
Lanier dug his knife into the cheese, providing a vivid visual cue for the jury about how talc is mined. And in the process, the boundary-testing Houston trial lawyer demonstrated that in the courtroom of Judge Rex Burlison, just about anything goes.
Lanier kept that block of cheese at the ready throughout the trial and used other simple props, including a bale of hay, a bathroom scale and drawings scribbled on overhead projector slides to convince the jury that J&J had failed to remove dangerous asbestos fibers from its iconic Johnson’s Baby Powder.
Over the objections of J&J’s attorneys, who maintain there is no asbestos in its products, Lanier convinced Burlison to allow in expert witnesses who used tests on old baby powder samples, many of them purchased from collectors on eBay, to suggest every bottle of the iconic product contains deadly asbestos fibers.
In the meeting of trial lawyers at a Napa Valley resort, Lanier likened himself to a magician and described his presentation as explaining “how I sawed the man in half.”
“Every judge lives by certain rules, just like in sports, but every stadium is also allowed to size themselves appropriately to the game,” Lanier said. “You figure out what the judge’s playing field is and use every bit of that territory.”
The July verdict on behalf of 22 victims of ovarian cancer and their families was the largest in a string of courtroom victories plaintiff lawyers have won against J&J, based on hotly disputed allegations that talcum powder contains asbestos fibers that can cause ovarian cancer and mesothelioma, a cancer of the pleural lining that is usually associated with industrial exposure to asbestos.
St. Louis has become a favorite venue for these lawyers. In addition to the $4.7 billion verdict in July, juries there handed down verdicts against Johnson & Johnson of $55 million, $70 million and $72 million, although a Supreme Court decision limiting the power of out-of-state plaintiffs to sue in Missouri will shift many future cases to federal court.
Johnson & Johnson, in a Sept. 20 motion for retrial, said Lanier and his trial team used a number of deceptive and improper tactics to win the most recent verdict, including showing the jury a hand-drawn picture of a woman being pushed off a cliff by a figure labeled “J&J Asbestos Baby Powder.” The woman is identified as having several other risk factors, including the BRCA gene, which is associated with a sharply higher risk of ovarian cancer.
The implication of the slide, J&J complains, is that talcum powder is the factor that pushes the woman over the cliff, when in fact the known risk factors are far more likely to be the cause.
Lanier loves this sort of exhibit, however. He bragged to his audience about how he would place a overhead transparency sheet on top of a folder containing defense exhibits and scribble his own notes and diagrams, not-so-subtly displaying his contempt for the defense case. He drew a picture of a jukebox with the name of a defense witness and musical notes coming out of it, for example, to get across the point “you put a coin in and he will sing any song you want.”
“I’m a big believer in using real demonstratives to make a point,” Lanier said. “I’m a big believer in actually letting the jury see.”
One thing Lanier didn’t want the jury to see, J&J complains in its motion for retrial, was a sentence on his own law firm’s website stating asbestos-contaminated talc “is not used in modern consumer products.” The language disappeared midway through the trial, the company says, then in closing arguments Lanier told the jury he “looked at the web address” and it wasn’t there.
Other props Lanier used during the trial included a bale of hay to demonstrate the difficulty of finding tiny asbestos fibers in talcum powder, and a set of scales. He placed a needle on a bathroom scale to show the jury its weight didn’t register, then used a much more sensitive scale to show the weight was measurable if the proper technique was used. His point was that J&J hadn’t done everything it could to remove asbestos fibers from its products – even though J&J said there is no evidence they’re in its products in the first place.
All of the samples tested by the plaintiffs’ expert were supplied by law firms involved in the litigation, J&J says, and the only ones that the expert found contained asbestos fibers came from Lanier. Defense lawyers complained during trial that the plaintiff expert couldn’t identify his samples as having come from J&J and suggested they may have been tampered with.
“If there are lawyers who are doing that kind of a stunt,” Lanier responded, “I hope they’d… put it into every stinking bottle and not only half of them.”
This sort of behavior has gotten Lanier in trouble before. In April the Fifth Circuit Court of Appeals threw out a $151 million verdict he won against DePuy Orthopaedics and Johnson & Johnson, saying Lanier misrepresented to the jury that his witnesses weren’t compensated and introduced “inflammatory character evidence,” such as unrelated allegations the defendants had bribed Saddam Hussein’s Iraq regime and engaged in racial discrimination.
Lanier, who describes himself as an “author, teacher, pastor and expert story teller,” didn’t seem fazed by the Fifth Circuit’s criticism last April.
“We find it unfortunate the behavior of J&J was so bad, that reciting that behavior to a jury evidently prejudices the verdict; however, the court has not allowed that into evidence in the subsequent trials, and those resulted in larger awards,” he said then.
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