Court of Common Pleas, Cuyahoga County, Ohio

Plaintiff Marwin L. Smith, executor of the estate of Audrey L. Smith, filed an asbestos lawsuit alleging that the decedent was exposed to asbestos through her personal use of Johnson’s Baby Powder and through bystander exposure from family members’ use of the product from approximately 1967 through 2021.Plaintiff also alleged exposure through the decedent’s use of other talc-based cosmetic products throughout her life. The decedent developed mesothelioma and died from the disease on Sept. 20, 2024.  

The second amended complaint, Johnson & Johnson and Pecos River Talc LLC as defendants. Plaintiff asserted claims for statutory failure to warn and statutory product liability under the Ohio Product Liability Act, R.C. 2307.71 et seq., which governs product liability claims in Ohio. Under R.C. 2307.73, a manufacturer is liable when its product is defective and the defect is a proximate cause of the plaintiff’s harm. Plaintiff alleged every type of defect the Act recognizes: a manufacturing defect (R.C. 2307.74), a design or formulation defect (R.C. 2307.75), inadequate warnings or instructions (R.C. 2307.76), and failure to conform to the manufacturer’s representations (R.C. 2307.77). Plaintiff also invoked R.C. 2307.78, which can make a supplier liable as if it were the manufacturer. The complaint also asserted a wrongful death count under R.C. 2125.01 et seq., which allows recovery for the benefit of the decedent’s next of kin, including loss of support, services and society, and funeral expenses. Plaintiff and the couple’s minor child each asserted claims for loss of consortium. Plaintiff also sought punitive damages under R.C. 2307.80, alleging that the defendants acted with malice, oppression or fraud and demonstrated a flagrant disregard for the risk of serious injury.  

Plaintiff’s allegations regarding Johnson & Johnson (“J&J”) relied in part on an April 9, 1969 internal memorandum expressing concern about tremolite asbestos in J&J’s talc, as well as the contention that J&J manipulated its asbestos testing and made false statements to the FDA. Finally, Plaintiff pleaded successor liability and veil-piercing theories based on J&J’s corporate restructurings, including the allocation of mesothelioma claims to Pecos River Talc LLC.  None of these theories were successful with the jury. 

Ultimately, the jury returned a unanimous defense verdict in favor of J&J, finding that plaintiff failed to prove the decedent was exposed to asbestos from J&J talc products or that any such exposure caused her mesothelioma. As a result, the jury did not reach plaintiff’s allegations regarding J&J’s knowledge, testing practices corporate structure, or damages.