A state appeals panel has agreed a new trial is not in order for the estate of a woman whose family said asbestos in Johnson & Johnson’s talc products caused her fatal ovarian cancer.
Colleen Cadigan, as executor of the estate of Betty Driscoll, filed a 16-count lawsuit in St. Clair County Circuit Court in 2018 against Johnson & Johnson, along with two other defendants, Imerys Talc America (formerly known as Luzenac) and Walgreens.
St. Clair County Circuit Court Judge Christopher Kolker severed Imerys in March 2019 in connection with bankruptcy proceedings, and severed Walgreens from the amended complaint in August 2019.
Cadigan is represented by attorney John J. Driscoll, of The Driscoll Firm, of St. Louis.
A March 2020 second amended complaint focused solely on J&J’s baby powder. With the trial sidelined due to Covid mitigations, the parties battled over expert testimony. In April 2021, Judge Kolker denied J&J’s request for summary judgment while also declining to exclude testimony from four of Cadigan’s experts.
The three-week jury trial that July ended with brief deliberations and a verdict in favor of J&J. A month later, Cadigan asked Kolker to grant a new trial alleging he erred by striking the testimony of Dr. Suan Nicholson, a defense witness who didn’t return to court for cross examination. She further said Kolker was wrong to disregard her suggested sanctions for Nicholson and said corporate attorneys shouldn’t have been allowed to reference earlier versions of her complaint during opening statements and witness interrogation.
Kolker denied the motion in September 2021, which Cadigan challenged before the Illinois Fifth District Appellate Court.
Justice Barry Vaughan wrote the panel’s opinion, filed March 13; Justices Michael McHaney and James Hackett concurred. The order was issued under Supreme Court Rule 23, which limited its use as precedent.
Vaughan opened the analysis by noting Cadigan’s team didn’t raise a specific objection to Kolker’s decision to strike Nicholson’s testimony, but also disagreed with J&J’s contention Cadigan asked for that outcome, despite it being among the proposed remedies. Thus there was no “invited error,” limiting the panel’s review.
“The sanctions requested at trial were based on plaintiff’s request to find Dr. Nicholson in contempt,” Vaughan wrote. “The court found Dr. Nicholson in contempt on July 26, 2021, and later reiterated the finding on July 28, 2021, after it allowed Dr. Nicholson to provide a statement in allocution and fined her $500.”
Vaughan said the appellate panel already reversed the contempt findings based on Kolker mischaracterizing the type of contempt and, more importantly, not offering due process procedural safeguards. But regardless, Cadigan didn’t request sanctions with the case before Kolker.
Regarding older versions of the complaint used during opening statements and cross examination, Vaughan said “no objection was raised when (Cadigan) addressed the complaint during opening statement,” later during cross examination or at the start of a lunch break when Kolker asked both parties if they needed to address anything. The panel said Cadigan’s team didn’t object until testimony from Jesse Carney, Driscoll’s nephew. “Therefore,” they said, “the first three references to the prior iterations were not properly preserved and only the objections raised during Jesse’s testimony were properly preserved.”
The panel reviewed why Kolker’s jury instructions were sufficient and further noted Cadigan’s “case involved 11 witnesses over eight days compared with defendants’ use of four witnesses over three and a half days and the fact that plaintiff declined any opportunity to present rebuttal testimony following the close of defendants’ case,” Vaughan wrote. “Given the protections afforded to plaintiff by striking the testimony and providing a curative instruction, even if error could be found by the trial court’s action of striking the testimony, which we cannot find, we would not find that the error was prejudicial to plaintiff.”
Cadigan also said Kolker, as sanctions for Nicholson’s no-show, should’ve agreed to bar other experts from testifying and allowed a chance to suggest to the jury what Nicholson might’ve discussed on cross examination while striking some of Johnson & Johnson’s defenses. The panel said Cadigan offered only that barring the other experts was “very much fair under the circumstances” without a further argument or pointing to supporting precedent.
“Given the paltry nature of the argument, we cannot find it was error, to say nothing of prejudicial error,” for Kolker to reject the sanctions request, Vaughan wrote, adding that there also was no support for Cadigan’s insistence the jury couldn’t disregard what they did hear from Nicholson.
“No argument was presented that rebutted the presumption that the jury was incapable of following the trial court’s instruction, especially when plaintiff used almost two hours of cross-examination and was the last party to address the witness before the jury was released on July 23, 2021,” Vaughan wrote. “More importantly, we reviewed the 20-page offer of proof provided by plaintiffs as to what details might have been gleaned during Dr. Nicholson’s cross-examination, along with the four-page rebuttal offer of proof by defendants. We found nothing in the offers of proof so compelling that error can be found, especially when the majority of what was contained in the offer of proof was already discussed by another expert.”
Finally, the panel disagreed that striking defenses would’ve effectively led Johnson & Johnson to compel Nicholson to return to court. Her decision, Vaughan wrote, “was related to an underlying medical issue and an upswing in COVID-19 cases in the area,” and Cadigan offered “no argument as to what specific defenses were at issue or whether Dr. Nicholson’s testimony would have been affected by the unspecific defenses.”
After determining Cadigan’s “claim of cumulative error is untenable,” the panel affirmed Kolker’s ruling.
