Jurors were in shock and grappling for resolution after the judge in a Georgia state trial they had sat in on for nearly a month abruptly declared a mistrial. “I would have to say we were shocked. We were upset and on the verge of tears. We’d been in that courtroom for nearly a month, and we wanted to resolve the issue,” a juror said to Law.com, speaking under the condition of anonymity.
The estate of Diane Brower and her daughter sued Johnson & Johnson alleging Brower developed ovarian cancer after years of using Johnson’s Baby Powder on her genitals, which the company had promoted for feminine hygiene. Fulton County State Court Judge Jane Morrison declared a mistrial on Oct. 8 after the foreperson reported that the jury could not reach a unanimous verdict.
According to three jurors who agreed to speak under the condition of anonymity, at last vote, 10 jurors voted in favor of Bower, and two sided with Johnson & Johnson. What tripped them up was, in part, an enormous amount of scientific evidence. “At some points I couldn’t even listen anymore. The numbers of studies, the testimony … at some point you just have to basically choose who to believe,” another juror said.
The plaintiff’s attorneys brought expert James Barter, a gynecologist-oncologist, to emphasize the link between genital use of talcum powder and ovarian cancer. Defense attorneys bashed his research as “junk science,” which irked most jurors rather than making them doubt his credentials. “I was embarrassed for Dr. Barter, and I was very offended because I felt, when he was on the stand, that he was frustrated because he’s a professional and should be treated like one,” one juror said.
Another juror called the defense’s attack on Dr. Barter insulting and “kind of embarrassing. I think it had the opposite effect,” the juror said. “I think it gave us the opportunity to wonder, ‘Why is he so derogatory toward this man?’”
On the third day of deliberations, Oct. 8, Judge Morrison announced she would dismiss the panel early for Yom Kippur, and resume on Oct. 10, unless they felt they could not reach a verdict. The foreperson, who was one of the two jurors siding with Johnson & Johnson, replied, “no,” and a mistrial was declared.
The jurors who agreed to speak to media said they were shocked and wondered if the foreperson had misunderstood the judge’s question, “because we had agreed to come back Thursday.” But later, that juror texted the foreperson. “She did not misunderstand at all,” the juror said.
Beasley Allen lawyer Ted Meadows represented the plaintiffs together with Beasley Allen lawyers Leigh O’Dell, who works with him in the firm’s Montgomery, Alabama, office, and Rob Register in the firm’s Atlanta office, and lead plaintiffs attorney R. Allen Smith of The Smith Firm. Meadows told Law.com “We look forward to trying this case again and will continue to rely on decades of scientific evidence and internal company documents which prove not only that Baby Powder causes ovarian cancer, but that J&J has attempted to hide this from the public.”