NEW YORK (Legal Newsline) – The first result for plaintiffs lawyers banking on talcum powder lawsuits in New York City’s controversial asbestos court is a positive one, as a jury has hit Johnson & Johnson with a $25 million verdict.
Plus, still possible after Tuesday’s verdict are punitive damages. Next week, jurors will reconvene to decide whether to award punitive damages in a New York City asbestos case for the first time since the 1980s.
Defendants who claim the procedures in the court, known as NYCAL, are unfair have appealed an order that reinstated those damages, but have not been successful so far.
Johnson & Johnson has had mixed results fighting lawsuits around the country that allege its baby powder caused mesothelioma and ovarian cancer. Most troubling for the company was a $4.14 billion verdict in Missouri awarded to 40 women that it is appealing.
Donna Olson’s mesothelioma lawsuit was one of four talcum powder cases that were scheduled for trial in NYCAL in the early part of 2019 and the first to go to verdict.
Court records showed that the company attempted to make an issue out of the testimony of plaintiffs expert William Longo. J&J called his testimony the “cornerstone” of Olson’s case.
“This trial suffered significant legal and evidentiary errors – one of the most egregious being the demonstrably false testimony from the plaintiff’s central expert, which prompted us to move for mistrial,” the company said in a statement.
“As the jury was prevented from being made aware of the falsities in his testimony, we believe these errors will warrant a reversal on appeal.”
Longo has admitted that he has made more than $30 million through the years by offering mostly pro-plaintiff testimony.
His testing formed the bases of the opinions of two other experts, the company said on May 5, but Longo lied about where he obtained some of the sources of his baby powder samples.
The company argued in the Olson case and in another that some of those samples actually came from the relative of a plaintiffs lawyer who files these lawsuits. Judge Gerald Lebovits turned down the company’s argument.
Longo also testified he hadn’t tested for asbestos in cosmetic talc before 2017 when he had actually tested some earlier this century and found it didn’t contain asbestos, the company wrote when it unsuccessfully attempted to strike Longo’s testimony.
“J&J’s accusation is not only slanderous, it was made in bad faith,” attorneys at Levy Konigsberg wrote in response.
“J&J accuses Dr. Longo of misleading the Court and concealing the connection between Mr. Berkness and the Kazan firm. However, J&J knew at the time it filed this motion that Dr. Longo did not learn of Mr. Berkness’ familial relationship until March of this year.
“Not only has J&J thoroughly examined Dr. Longo about these samples and his testing of them, J&J has had a full and fair opportunity to examine the samples. Despite ample opportunity to produce new evidence that the samples were compromised, J&J has not done so.”
The possibility of punitive damages remains because of a contested case management order issued in 2017, when Justice Peter Moulton granted plaintiffs attorneys’ request to reintroduce punitive damages in NYCAL. An intermediate appellate court affirmed his decision after defendant companies appealed.
In at least one case, plaintiffs attorneys asked for $50 million in punitive damages.
Combined with the practice of consolidating lawsuits for trial, defendants claim they are placed at a disadvantage in the court.
NYCAL has long been considered a “Judicial Hellhole” by a national tort reform group that puts out annual rankings of jurisdictions in which it feels defendants aren’t treated fairly.
But a Court of Appeals decision last year that rejected asbestos lawyers’ argument that every exposure to asbestos, no matter how small, contributes to illness was a rare positive outcome for defendants.
Talcum powder litigation has forced the company Imerys into bankruptcy, creating an opportunity for Johnson & Johnson to remove cases to federal court.
Plaintiffs lawyers have lost a number of cases, including an Oregon trial in September 2018, several California trials and a New Jersey defense verdict in March of this year.
But there have been successes too, like the $4.14 billion verdict in St. Louis.