Talc Appeals

Most clients, I would say probably every client and many lawyers don’t understand that the appellate process from an appellate lawyer’s perspective begins long before any appeal occurs. An appellate lawyer, or a good one anyway, is going to be looking with an eye toward the appeal from day one. The minute we get pitched a case by a potential client we’re already thinking about the appellate process. So, even in the baby powder case involving the asbestos in the talc, we approached that case throughout, the appellate team anyway, approached that case throughout with an eye toward the potential appeal. We do that in numerous ways, but the two primary ways is this: first, we want to make sure that we, in our trial team, If we prevail that we prevail on a clean case, and what that means is we don’t want the trial judge making errors in our favor. I know that sounds kind of funny because we want to win and we want to prevail, but we don’t want to prevail on legally erroneous reasons. And so we’re kind of keeping a watchful eye on the trial process and we wanna make sure that we don’t get reversed if we do prevail because the trial judge made an incorrect ruling in our favor or we pursued some legal relief that we’re really not entitled to. So, we work with the trial team together to make sure that we run a clean case that if we prevail, we don’t get reversed on appeal and have to do it all over again. And the other way that we on the appellate team keep an eye toward the appellate process is when the defendant makes a mistake or the trial judge makes a mistake that harms us that we wanna make sure that we preserve the right to argue that on appeal. We wanna make sure that we don’t waive the right to bring up that point of error on appeal and lose an argument for reversal should we lose at trial. So that’s how we approached the baby powder case. Baby powder case and the one I’m talking about is the trial that was in Missouri resulted in a $2.1 billion dollar affirmed judgment at the end of the day, it was complicated because it was a 5-plus week trial. So there were thousands of pages of evidence and trial testimony that we needed to first educate the appellate court on and to make sure that they understand it. Appellate judges, it’s not their job to scour the record and make sure that they can understand. We have to teach them. We have to educate them and make sure that they see why we won and that we won for a good reason. I was part of a team. At any given time we had 5 to 10 people working on that appeal, and my task primarily was the factual part. We dedicated approximately 55 pages of our brief that we filed with the Intermediate Court of Appeals in Missouri to educating the court on the decades and decades during which the defendant in that case concealed the asbestos content of their baby powder. They devised testing of their baby powder that was designed not to find asbestos and to conceal it. We had to educate the appellate court on how, scientifically, how does asbestos cause ovarian cancer and why the jury found that it caused our clients ovarian cancer in particular. And so that involved looking at epidemiological studies and data and putting it in a form in a written form that wouldn’t bore the average reader. So that was my primary role. The defendant in the baby powder case, they raised 10 different issues on appeal as to why the judgment should be reversed on all the substantive issues, the intermediate court of appeals from Missouri found for us and so we prevailed. But those 10 appellate points were not new to us. We had either briefed those issues repeatedly throughout the trial process or we anticipated the new issues that they raised, so, nothing in that appeal was new to our team. We were prepared to confront each and every one of those issues to the extent we had already responded to those issues we just simply further developed and honed those arguments to make them even better. The appellate process can often last for years and years and years. One of the interesting things about that appellate process is the appeal flowed through the intermediate court of appeals in Missouri, who did decide the case in our favor. Then the defendant in the baby powder case appealed to the Missouri Supreme Court, which declined to hear the case, effectively saying that there’s no error here that we need to correct and then because there were some constitutional issues raised by the defendant in that case, it was also appealed to the US Supreme Court. And so the interesting thing that the US Supreme Court declined to hear that case too in June of 2021. So considering final judgment was entered in around December of 2018 in that case and the judgment became final after a Supreme Court ruling in June of 2021, that’s a pretty fast appeal. So we were lucky that the appellate process was over as quickly as it was.