Johnson & Johnson will ask a Missouri court Wednesday to undo or at least cut a $4.69 billion verdict awarded to 22 women who blame their ovarian cancer on asbestos in its talc products.
The verdict, which the company calls “excessive and unconstitutional,” includes $4.14 billion in punitive damages and $550 million in compensatories against J&J and its Johnson & Johnson Consumer Inc. unit.
It came in the first suit to go to trial in Missouri alleging asbestos-exposure from the companies’ talcum powders. Earlier Missouri talc trials, two of which yielded $110 million and $70 million verdicts and which also are currently on appeal, haven’t involved allegations of asbestos contamination.
Other states also have seen trials linking talc to mesothelioma, a signature asbestos-related disease. Trials in South Carolina and California resulted in a mistrial and a verdict in favor of J&J this past week.
J&J and its subsidiary are expected to tell the Missouri Circuit Court in St. Louis City Nov. 21 that combining the women’s claims into one trial was improper and unfair. Each family should have its own new trial, J&J says in a filing with the court.
The women, or their representatives, meanwhile, will counter that they each proved the companies’ talcum powders caused their ovarian cancers, illnesses that are especially deadly because they are hard to detect early.
And the plaintiffs will contend J&J’s “highly reprehensible” conduct in knowing their products contained asbestos, and selling the powders anyway, make their case the “rare” situation that justifies such sizable punitive damages.
J&J and its subsidiary “knew there was asbestos in what they marketed as `baby’ powder, but they deliberately targeted mothers and women in general with advertising misrepresenting the safety of their talc products,” the women say in their own filing to the appeals court.
The trial improperly lumped together too many plaintiffs with differing risk factors and stages of cancer, including some who had died, the companies say.
The grouping gave the jury the “false impression” the powder must have been responsible because powder use and ovarian cancer were all that the women had in common.
The verdict itself demonstrates how each plaintiff’s claim bolstered that of the others, J&J says in its court filings.
The jury deliberated for less than 20 minutes per plaintiff before awarding the same $25 million in compensatory damages to each family.
At the very least, the court should order a new trial on damages or slash the awards, J&J argues. The compensatory award should be no more than $3 million per plaintiff.
Also, per U.S. Supreme Court guidelines, only a roughly even ratio between punitive and compensatory awards would “remotely pass muster here, even if compensatory awards were substantially reduced,” the companies say.
But the 22 women, or their representatives, counter that ample evidence shows the powders contained asbestos and are linked to their cancers.
The “vast majority of evidence” concerns the companies’ conduct and whether their talc products generally could have caused their illnesses, the plaintiffs say.
Plaintiff-specific proof took up only one week of the six-week trial trial.
The women also dispute J&J’s “unfair spillover” argument.
They cite an Eleventh Circuit opinion, Eghnayem v. Boston Scientific Corp., that upheld combining the cases of four pelvic mesh plaintiffs into one trial.
As for the award’s size, the women say the compensatory award in this case aligns with a New Jersey jury’s $37 million award in another talc-asbestos case, that one over mesothelioma.
And the punitive award should survive scrutiny under both federal due process principles and under Missouri law, the plaintiffs say.
The jury awarded $990 million in punitive damages against the subsidiary, and $3.15 billion against J&J, the plaintiffs argue.
That makes a 1:1.8 ratio of compensatory to punitive damages for the Johnson & Johnson Consumer Inc. unit, and a ratio of 1:5.72 for the parent company.
“Numerous courts have approved ratios much greater based on less egregious conduct,” they say.
J&J faces about 600 women in total in legal proceedings in St. Louis linking its talc products to ovarian cancer, according to a filing in the federal multidistrict talc litigation. Some of those cases specifically allege asbestos-exposure, others don’t.
The bulk of the ovarian cancer litigation, however, is in the U.S. District Court for the District of New Jersey with some 9,000 cases there.
The Holland Law Firm, The Lanier Law Firm, and Gray Ritter & Graham, PC represent the plaintiffs.
HeplerBroom LLC; Orrick, Herrington & Sutcliffe LLP; and Shook, Hardy & Bacon LLP represent J&J.
The case is Ingham v. Johnson & Johnson, Mo. Cir. Ct., 1522-CC10417-01, hearing 11/21/18.
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