Johnson & Johnson and Johnson & Johnson Consumer Companies Inc. have won an appeal on appeal amid a host of lawsuits alleging that its talc baby powder product caused terminal ovarian cancer in multiple consumers.
The Georgia Court of Appeals ruled on four lawsuits alleging exposure to asbestos from talcum powder after finding that the deceased “did not provide evidence that other potential causes were not the only or most likely cause of the injury in question.”
The plaintiffs’ complaints were found to satisfy all but one point necessary to establish their asbestos claims under Georgia law.
“Anyone who has brought cases under the Georgian Asbestos Act knows that it is not a model for legal clarity,” said John Bevis of the Barnes Law Group in Marietta.
Bevis and other attorneys, including law firm associates and former Georgia Governor Roy Barnes and Robert Cheeley of the Cheeley Law Group in Alpharetta, represented the women in their individual complaints with case-specific medical affidavits that Dr. Richard Kradin had attached.
In each case, the Cobb, Dougherty and Gwinnett Counties State Courts and Spalding County’s High Court denied Johnson & Johnson’s motion to dismiss the respective claims, prompting the interstate appeals court to conduct a preliminary review.
Judge Clyde Reese, Georgia Court of Appeals. (Courtesy photo)
In contrast to the courts of first instance, an appeals panel of the Georgia Court of Appeals, consisting of Presiding Judge Sara Doyle and Judges Trenton Brown III and Clyde Reese, ruled that the appeals should have been dismissed.
The plaintiffs’ medical affidavits, according to the appellate judges, fulfilled a fourth aspect of the state’s Asbestos Claims Act, which focused on the existence of other “potential causes” of their final diagnoses and subsequent deaths.
“In connection with an asbestos testimony claiming to have cancers other than mesothelioma, on or after the 1st medicine doctor or certified oncologist signed a medical report confirming a reasonable medical likelihood [1] that the exposed person has or has had a cancer other than mesothelioma; [2] that the cancer is a primary cancer; [3] that exposure to asbestos was a major contributor to the diagnosed cancer; and [4] that other potential causes (such as smoking) were not the only or most likely cause of the injury in question, ”Reese wrote.
In the statement, Reese noted that the medical affidavits presented by Kradin met the first three points, but did not attest the doctor’s conclusion that there were no other environmental exposures, “that other potential causes (such as smoking) are not the only or most “were the probable cause of the injury in question.”
“The consequence of not meeting this requirement is clear.” Reese wrote. “‘If the court of first instance finds that the plaintiff has provided no prima facie evidence of physical impairment, it shall dismiss the plaintiff’s action without prejudice.'”
Caroline M. Gieser and Colin K. Kelly of Shook Hardy & Bacon in Atlanta represented Johnson & Johnson on the appointments. Neither of them returned requests for comments on Monday.
“A travesty”
However, according to Bevis, the litigation is unlikely to end with the Georgia Court of Appeals decision.
John R. Bevis of the Barnes Law Group in Marietta. (Photo: ALM)
The trial attorney said he would like to see the Georgia Supreme Court consider the case. in view of the content of the affidavit. “
“If the law says ‘no other possible causes like smoking’, I don’t think lawmakers wanted to make that literal language on an affidavit,” Bevis said. “In fact, as the legislature stated, other possible causes such as smoking are environmental causes.”
He said he intended to make another affidavit, this time in literal legal language, but found years and hundreds of thousands of dollars “wasted” on court and attorney’s time and fees frustrating.
“All of these arguments could have been traced upon discovery. That’s what makes it difficult, ”said Bevis. “But it has no future consequences other than that Johnson & Johnson has now tried to file for bankruptcy. Given this bankruptcy and automatic suspension, can these cases be re-filed now? “
