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Johnson & Johnson talc verdict cut in half to $2.1 billion by state court

Jef Feeley
Bloomberg

A Missouri appeals court refused to toss out a $4.7 billion jury verdict against Johnson & Johnson over cancer claims linked to talc-based products including baby powder but agreed to cut the total payout to $2.1 billion to the women who sued the company.

In a unanimous 83-page opinion issued Tuesday, a three-judge panel said 2018 trial testimony by plaintiffs’ experts about the risk of asbestos exposure from talc-powder use was based on “reasonable methodology” and provided the St. Louis jury a legitimate basis for holding J&J liable for the cancers in almost two dozen women.

While the judges upheld $500 million in actual damages awarded to the women, they cut the punitive damages to about $1.6 billion from about $4 billion. That brought the total down to $2.1 billion. J&J, which denies its talc powder is tainted with asbestos, plans to appeal the court’s decision.

“We continue to believe this was a fundamentally flawed trial, grounded in a faulty presentation of the facts, and will pursue further review of this case by the Supreme Court of Missouri,” Kim Montagnino, a J&J spokeswoman, said in an emailed statement.

Mark Lanier, the Texas-based lawyer who represented the women, said the court’s decision to uphold the actual damages and part of the punitive award will influence other talc cases in Missouri. “The opinion carefully explains the reprehensible conduct of J&J, and upholds critical damages to make the world a safer place,” Lanier said in an email.

Jury Award

The women blamed their ovarian cancers on use of asbestos-laced talc powder. Jurors awarded each woman $25 million in compensatory damages. The panel then added more than $4 billion in punitive damages. The award was the sixth largest in U.S. legal history.

J&J – which pulled its talc-based baby powder off the shelves in the U.S. and Canada last month – still faces almost 20,000 lawsuits blaming the iconic product for causing either ovarian cancer or mesothelioma, a cancer linked specifically to asbestos exposure.The New Brunswick, New Jersey-based company has lost other cases at trial, with juries across the U.S. ordering it to pay hundreds of millions of dollars in damages. Judges slashed some of those awards while others have been thrown out or are on appeal. J&J also has won some cases.

Significant Reprehensibility

In upholding some of the punitive award, the appeals court judges said they found “significant reprehensibility” in J&J’s handling of the issue of asbestos in its baby powder.

The bad conduct cited by the court included J&J avoiding “adopting more accurate measures for detecting asbestos,” discussing the asbestos risk of the powder in internal memos and refusing until recently to replace talc in its baby powder with cornstarch, which doesn’t pose a cancer risk.

The plaintiffs contend J&J knew from the early 1970s some of the talc used in its baby powders was laced with asbestos and hid it from consumers. The company refused to put any warning label on its iconic white bottles. J&J executives said the decision in May to remove its talc-based products from the U.S. market was made for business decisions and wasn’t an admission of wrongdoing.

J&J also argued the vast majority of the 22 women whose claims were combined in the case weren’t Missouri residents and shouldn’t have been able to sue in the state.

The appeals court knocked out the awards for two women who were from out of state. But the judges rejected the company’s argument for 15 other plaintiffs, saying they had a legitimate basis for suing in Missouri because they used a talc-based powder called Shimmer – produced for J&J by a company based in Union, Missouri. Union is located about 50 miles east of St. Louis.

Several other talc verdicts won by out-of-state plaintiffs in Missouri have been thrown out on appeal because of the debate over whether Shimmer’s production in the state justifies allowing St. Louis juries to decide non-residents’ claims.

The U.S. Supreme Court sought to crack down on so-called “litigation tourism” in 2017, ruling there has to be a connection between the state court and the specific claims at issue. In an 8-to-1 ruling, the high court said almost 600 people who blamed the blood-thinning drug Plavix for causing internal bleeding and strokes couldn’t sue Bristol-Myers Squibb in a California court because they didn’t live in the state.

Tuesday’s Missouri ruling may bring more talc cases back to St. Louis courts – known to be more plaintiff-friendly than other venues, said Carl Tobias, a University of Richmond law professor who teaches about product liability.

“As long as they can show they used that specific type of powder, then out-of-staters are welcome to bring their suits in St. Louis,” Tobias said. “If the Missouri Supreme Court upholds this decision, then you aren’t shut down if you aren’t a Missouri resident. There’s a path forward for your case.”

The case is: Ingham v. J&J, ED-107476, Missouri Court of Appeals for the Eastern District (St. Louis).