I have been following this litigation for several months. (See my previous posts at https://www.linkedin.com/feed/update/urn:li:activity:6407989287274455040/, https://www.linkedin.com/feed/update/urn:li:activity:6410206962260144128/, and https://www.linkedin.com/feed/update/urn:li:activity:6435163112038629376/.) There are 10,600 lawsuits pending against Johnson & Johnson nationwide, claiming that long term use of Johnson’s Baby Powder causes ovarian cancer and mesothelioma. https://www.reuters.com/article/us-johnson-johnson-cancer-lawsuit/missouri-judge-affirms-4-69-billion-talc-verdict-jj-vows-to-appeal-idUSKCN1L721E. The few cases that have gone to trial thus far have yielded both plaintiff and defense verdicts; however, all of the plaintiff verdicts were either thrown out by the trial judge as unsupported by the evidence, or reversed by an appellate court on jurisdictional or other procedural grounds. In other words, no appellate court has addressed the issue of whether a plaintiff verdict can stand on the merits. Barring unforeseen developments, the Missouri Court of Appeals, and probably thereafter the Missouri Supreme Court, will be addressing that issue.
On July 12, 2018, in a case involving 22 plaintiffs claiming that decades-long use of Johnson’s Baby Powder caused ovarian cancer, a St. Louis jury awarded $550 million in compensatory damages and $4.14 billion in punitive damages against Johnson & Johnson. https://www.stltoday.com/news/local/crime-and-courts/talc-cancer-verdict-of-billion-from-st-louis-jury-sends/article_c15e7f98-fce0-5a74-80ee-45371d5e98b1.html. Some of the previous cases that resulted in defense verdicts foundered on the theory that talc itself causes cancer, which remains highly controversial. However, the carcinogenic effects of asbestos are well established, and the St. Louis plaintiffs relied exclusively on the theory that talcum powder is contaminated with asbestos – or at least, is contaminated with sufficient frequency to be carcinogenic when used over an extended period of time. There is no safe level of asbestos exposure.
The two minerals are often found together in nature, so it is not surprising that raw mined talc can be contaminated with asbestos. Of course, Johnson & Johnson asserts that the talc in its baby powder and other products is 100 percent asbestos free as a result of J&J’s rigorous refining and testing procedures. However, the St. Louis plaintiffs succeeded in convincing both a jury and a trial judge ruling on a motion for a new trial or for judgment n.o.v. of the contrary: “In his ruling, Missouri Circuit Court Judge Rex Burlison said there was ‘substantial evidence’ of ‘particularly reprehensible conduct’ by J&J, saying that executives ‘knew of the presence of asbestos in products that they knowingly targeted for sale to mothers and babies, knew of the damage their products caused, and misrepresented the safety of these products for decades.’” https://www.cnbc.com/2018/12/19/jj-falls-after-company-loses-motion-to-overturn-4point7-billion-verdict.html
Johnson & Johnson’s litigation strategy has been (understandably) to take every case to trial. It has not yet paid a penny in damages: either it won a defense verdict, or the trial judge threw out a plaintiff verdict as unsupported by the evidence, or an appellate court reversed a plaintiff verdict on jurisdictional grounds. The plaintiffs’ attorneys in the St. Louis case are confident of winning the jurisdictional issue on appeal. If the Missouri Supreme Court reaches the merits and rules that there was sufficient evidence to support the verdict, that will be a game changer. This is one to keep an eye on.
