How a "Battle of Red Flags" in Closings Helped Key J&J Win in Asbestos Trial

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Turning an opposing counsel’s closing argument back on itself can sometimes be the most effective counterpunch in a case. In Herford v. Johnson & Johnson, Morton Dubin engaged in a battle of the red flags during closings of an asbestos trial to key a crucial win for the consumer giant.

Tina Herford developed mesothelioma after using Johnson & Johnson baby powder for years, and claimed that asbestos in the talc used for the company’s baby powder led to her disease.

During closing arguments, her lawyer, Chris Panatier, used small red flags to represent all the ways he contended Johnson & Johnson knew of asbestos in its baby powder. By the end of plaintiff’s closing, the courtroom was filled with the red banners on tabletops and desks.

In response, Orrick, Harrington & Sutcliffe’s Dubin, who argued asbestos was not present in the company’s baby powder, contended Herford’s case carried some red flags of its own. Holes in the evidence, combined with key inconsistencies in Herford’s claims, Dubin maintained, were the red flags that the jury shouldn’t ignore.

Dubin reminded jurors, for example, that Herford’s claim at trial of 35 years of talcum powder use was undercut by a pre-suit medical record in which she claimed to have used talc baby powder daily for between 6-8 years.

“That’s a red flag. Not here to beat up on the plaintiffs,” Dubin said. “But, when all of a sudden, when we’re here today, and now it’s 35 years of daily use of these products, it’s a red flag.”

Dubin also reminded jurors Herford contended at trial she was not exposed to asbestos fibers from contact with her father, who had allegedly worked with asbestos. This testimony, Dubin added, conflicted with Herford’s pre-trial, written answers stating she was exposed to asbestos while laundering her father’s clothes. Dubin acknowledged that Herford’s testimony at trial, rather than the written interrogatory responses, may have been accurate. But, “if it wasn’t Tina Herford, who wrote this false information for her to sign, and go out and put it into a lawsuit, making claims? Because somebody did it,”Dubin said. “That’s a red flag about the credibility of this case.”

Dubin, who claimed Herford likely developed mesothelioma from breast cancer treatment years earlier,   added that medical testimony concluded Dubin lacked the so-called “hallmarks” of significant asbestos exposure. “It does not line up,” Dubin said. “That’s a red flag.”

After the battle of the red flags, jurors cleared Johnson & Johnson and its supplier Imerys Talc America in the landmark case, the first asbestos claim against J&J’s talc products to go to trial.

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Tina Herford v. Johnson & Johnson, et al.
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Health care, Chemical
More from Practice Area
Products Liability, Asbestos, Mass Torts
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C. Simpson
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Los Angeles County Superior Court
Jurisdiction
Los Angeles County

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