A mistrial has been declared by Judge Jane Morrison in the first Johnson and Johnson baby powder cancer case to go to trial in the state of Georgia.

The lawsuit is referred to as Brower v. Johnson & Johnson and was filed in 2016 by the surviving family of Diane Brower who succumbed to ovarian cancer in 2016. The family members allege she used the talc-based baby powder for years, resulting in her ovarian cancer diagnosis and her three-year fight against it.

The jurors in Fuller County State Court had been subjected to three weeks of testimony in the Johnson and Johnson baby powder cancer case and had attempted to come to some consensus by deliberating for three days prior to approaching the judge. Morrison responded to news from the jury of their 10-2 deadlock by giving what is known as the ‘Allen charge’—an admonition to exert every effort to come to mutual agreement.

The jurors sought clarification on the concept of proximate cause the day before they resigned themselves to a deadlock

The jury foreperson in the Johnson and Johnson baby powder cancer case revealed the belief that different members of the jury were evaluating evidence based on different understandings of pertinent law. The foreperson said that further discussion would not likely change this situation.

Counsel for the plaintiffs indicated that the failure to reach consensus was unfortunate, but emphasized that most of the jury leaned in favor of the surviving family and the case presented against the pharmaceutical giant.

In closing arguments, the plaintiffs’ attorney noted the presence of internal documents from Johnson and Johnson that reportedly revealed knowledge of talc’s ability to introduce health problems with genital application and introduction to the vagina. The attorney for the complainants also noted “statistically significant” epidemiological meta-analysis on talc and ovarian cancer.

What Is A Mistrial?

For those not intimately acquainted with the legal process, the term “mistrial” might be obscure at best. According to the American Bar Association, a mistrial is a trial that hasn’t been completed successfully and is considered null and void pending the initiation of a new effort on behalf of the litigants. An announcement of a mistrial can happen before the jury comes back with a verdict or prior to a judge’s decision in a case without a jury.

There are many reasons why a mistrial might be declared, and defense strategists are adept at finding them if one is not immediately apparent. Either side may motion for the judge to consider mistrial, however. The judge may or may not vote in favor of the motion and if not, it proceeds accordingly. Among the reasons listed by the American Bar Association for mistrial are:

• a deadlocked jury
• death of an attorney or juror
• a discovery of impropriety when the jury was picked
• misconduct on the part of a juror such as inappropriate contact, independent investigation
• prejudicial commentary not curable by admonition