A Johnson & Johnson attorney  urged a Philadelphia judge, in the run-up to the city’s first talc trial, to admit prior testimony from a company executive who he said had been sidelined because of an unspecified medical issue and whose absence from a similar case in Illinois resulted in a contempt finding last month. 

James Smith, an attorney at Blank Rome LLP representing J&J, said during a pretrial hearing that testimony from Dr. Susan Nicholson — who is J&J’s vice president of women’s health — was vital to proving the safety of the company’s talcum powder but that he was unable to call her due to the sudden medical leave she’d taken.

In lieu of live testimony, J&J is hoping to present jurors in Philadelphia with video of testimony that Nicholson, a regular witness for the company in talc cases across the country, gave during a trial in Missouri state court two years ago.

However, counsel for plaintiff Ellen Kleiner urged the judge to bar Nicholson’s prior testimony from being admitted on grounds that they would be prejudiced by their inability to cross-examine Nichols about any case-specific issues.

The fight comes in the wake of an order out of Illinois state court in which Nicholson and J&J were found in contempt after Nicholson began testimony during a talc triay last month before failing to return to complete her stint on the witness stand the following weekday.

Nicholson initially told the judge in Illinois that she had planned to visit an ill friend in Virginia over the weekend, but her trip was ultimately canceled as she returned to her home in New Jersey to deal with an unspecified medical problem.

Nicholson’s testimony was ultimately stricken from the Illinois case, but a jury handed down a defense verdict clearing J&J of claims that its talc had caused a fatal case of ovarian cancer.

As a new talc trial gets set to kick off in Philadelphia, however, J&J said that Nicholson’s medical condition continued to keep her away from work and that the company would be barred under federal law from forcing her to appear.

Leigh O’Dell, an attorney with Beasley Allen representing Kleiner, countered that there was at least one study about potential associations between talc and ovarian cancer that had come out since Nicholson’s testimony in 2019 that her team had planned to ask questions about.

Judge Charles Cunningham III, who is presiding over the case in Philadelphia, took the matter under advisement but tasked O’Dell and her team with submitting information to the court about exactly what new areas they’d planned to question Nicholson on.

Law360: https://www.law360.com/articles/1413547/j-j-pushes-to-admit-missing-witness-s-prior-talc-testimony

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