My Cases are Battles for Public Health
By: Jerome “Jerry” Block, Levy Konigsberg LLP (written August 2019)
I consider fighting for public health to be my professional calling. I am not a medical doctor and not a cancer researcher. But, as a trial lawyer, I consider my cases to be battles for public health. My clients are usually people that are suffering from, or have died, from a preventable cancer. The products that harm my clients were mass marketed and harmed many people. So, when I litigate a case, it is not just a battle for my client, it is a battle for public health. And, when I win a case, it not only benefits my clients, but others who have suffered the same harm and is a victory for public health. Two recent jury verdicts stand out as examples of victories for my client, which were also major victories for public health. These cases involved well-known products that have caused widespread harm: Johnson’s Baby Powder and Menthol Cigarettes. In each case, I was proud to lead a passionately committed legal team dedicated to obtaining justice for our clients and improving public health.
The Olson Verdict: A Public Health Victory Involving Johnson’s Baby Powder
I spent the first half of 2019 serving as the lead trial attorney in the first mesothelioma case against Johnson & Johnson tried in New York City. My client, Donna Olson, was diagnosed with mesothelioma, an asbestos-related cancer, at the age of 63. Her only exposure to asbestos was from her lifetime use of Johnson’s Baby Powder as well as another talc product made by J&J (Shower to Shower). Talc is a mineral that is mined from the earth, and historical documents and expert testing showed the talc used in J&J talc products contained asbestos. This case is part of an ongoing public health battle. Despite internal documents identifying asbestos in J&J talc products, J&J has told regulators and the medical community — in statements going back nearly 50 years — that its talc never contained asbestos. On several occasions, J&J and its talc industry organization have defeated efforts to regulate talc and to require warning labels on talc products. It has only been a few years since J&J was forced to produce its internal documents in litigation. In the Olson case, the jury was able to see internal testing records showing asbestos in J&J’s talcs as well numerous other documents putting J&J on notice of the asbestos hazards in its talc products including Johnson’s Baby Powder. In this landmark trial, the jury returned a verdict in favor of Mrs. Olson and her husband, and against J&J, in the amount of $325 million dollars. Of that, $300 million was for punitive damages to punish J&J for its reprehensible and outrageous conduct involved in selling baby powder that contained asbestos. This verdict will benefit public health because it will hopefully lead to J&J replacing its talc-based baby powder with corn starch (an alternative raw material for baby powder that is asbestos-free). The verdict will also hopefully blaze a trail for other people who have developed cancer (either mesothelioma or ovarian cancer) from Johnson’s Baby Powder.
The Summerlin Verdict: A Public Health Victory Involving Menthol Cigarettes
For two months in the fall of 2018, I lived in Boston and tried a landmark case against R.J. Reynolds Tobacco Company. My client Louis Summerlin was born in 1942 and became addicted to menthol cigarettes as a teenager in the 1950s. This was before there were any warnings on cigarette packs. The menthol in the cigarettes made it easier for the teenage Mr. Summerlin to become a regular smoker because the menthol provided a soothing anesthetic effect that made the harsh cigarette smoke easier to inhale. Mr. Summerlin smoked Reynolds’ menthol cigarette called “Kool” for decades. An addicted smoker for nearly his entire life, Mr. Summerlin developed lung cancer in 2015 and died that same year. On behalf of his widow, I presented a series of claims at trial against Reynolds including: failure to warn, design defect, and fraud. The thrust of the claims was that Reynolds had knowingly designed the menthol cigarettes in a manner that would make them most effective at addicting young people, even though they knew how to design their cigarettes in ways that would dramatically decrease the risk of addiction. It was the menthol and the nicotine in the cigarettes that fueled Mr. Summerlin’s addiction, all without any warning and with the true facts against addiction and cancer concealed by Reynolds and the tobacco industry. The Boston jury found in favor of Mr. Summerlin’s widow and family and against Reynolds, awarding $43.1 million of which $30 million was for punitive damages. This trial occurred at the same time the FDA is evaluating the issue of menthol in cigarettes. Reynolds continues to tell the FDA that menthol does not add to the addiction risk of smoking and Reynolds continues to claim that they cannot design cigarettes more safely and in a less addictive manner. The jury rejected Reynolds’ arguments in the Summerlin trial, finding against Reynolds on all claims. This is another important victory for public health. Hopefully, it will help convince Reynolds to remove menthol cigarettes from the market. Menthol is a flavored, anesthetic agent that has no business being paired with cigarette smoke. It makes it easier for children to become addicted and more difficult for adults to quit. I also hope that this verdict will help others who have died because of their addiction to menthol cigarettes.
My cases are battles for public health. My victories bring justice for my clients, but are building blocks on the road to protecting the public from dangerous products such as talc powders or menthol cigarettes. Not every case is won, and even in defeat, there are important contributions to public health in trying the case and holding companies accountable.