COLUMBIA, S.C. (Legal Newsline) – Johnson & Johnson's perfect 3-0 trial record in South Carolina is in serious jeopardy if two separate cases – which have little to do with each other, the company says – are bundled as one and presented to a jury.
Johnson & Johnson is fighting a South Carolina order that approved a multi-plaintiff trial, which is one of the favorite strategies of asbestos lawyers. The company is facing thousands of asbestos lawsuits over the talc in its Baby Powder and, like defendants before it, claims multi-plaintiff trials are unfair considering the unique factors of causation that each plaintiff brings.
In this instance, the company can’t see why these two cases would be grouped together. One plaintiff represents a late man who contracted mesothelioma in his lungs at age 69 after working around asbestos but blames Baby Powder, while the other plaintiff is a 20-year-old woman with mesothelioma in her abdomen.
A trial judge in Charleston nevertheless put them together despite noting their differences. J&J is prepared to argue Robert Devey’s mesothelioma was caused by exposure to asbestos during his employment history and that Terran Dupree’s cancer was caused by genetic errors.
“Each plaintiff has dramatically different – and substantial – obstacles to overcome in proving causation,” J&J’s Aug. 17 brief to the Supreme Court says.
“However, if the jury hears the claims of both plaintiffs who used Johnson’s Baby Powder and subsequently developed a form of mesothelioma, they may well assume that there must be something to the plaintiffs’ allegations.
“In other words, consolidation would allow plaintiffs to bolster their claims by stacking allegations before the jury.”
Defendants elsewhere have resisted consolidation for the same reasons. Notably, they started a battle years ago in New York City’s asbestos docket after complaining that the average verdict in a consolidated trial per plaintiff was much higher than solo trials.
Spanning trials that occurred from 2010-14 in New York City, data showed individual plaintiffs who won at trial received nearly $28 million combined for an average award of nearly $7 million.
In consolidated cases, however, that figure jumped to an average award of $24.1 million per victorious plaintiff. Thirteen plaintiff verdicts produced a total of $313.5 million.
The highest award was $190 million to five plaintiffs in 2013. The highest individual verdict was $11 million to a plaintiff in 2014.
But the NYCAL defendants have not defeated the case management order that allows both consolidation and punitive damages, though plaintiffs who are seeking punitive damages can not take part in consolidated trials.
Defense lawyers contend the practice of consolidation is being used as a mechanism to force defendants into settling cases, but plaintiffs attorneys say it can help promote judicial economy by utilizing fewer resources and taking less of the court’s time.
When it works for plaintiffs lawyers, it really works. J&J was nailed with a $4.7 billion verdict in a consolidated St. Louis trial – a verdict later reduced to $2.1 billion and is still the subject of an appeal from the company.
Jurors awarded each of the 40 plaintiffs the same amount of money - $25 million – despite the differences in their circumstances (one plaintiff had been in remission for 32 years).
Consolidation was a big battleground in Baltimore, too, where Peter Angelos’ law firm unsuccessfully asked judges and lawmakers alike for help with the thousands of cases it had that were idling on the docket.
The Angelos firm is now dismissing hundreds of individual cases each month rather than continue with the hope of bundling them with others.
Rulings in Michigan and Ohio prohibited consolidation unless all parties agreed to it, and Mississippi requires "a distinct litigable event linking the parties" after the state Supreme Court found that questionable consolidation would “unavoidably confuse the jury and irretrievably prejudice the defendants."
Now, the South Carolina Supreme Court is asked to put a stop to the practice of consolidation in that state, which is home to the influential asbestos firm Motley Rice. The company included a chart of differences between the two plaintiffs like their ages at diagnosis (69 for Devey, 14 for Dupree) and their different diagnoses (pleural mesothelioma for Devey, peritoneal mesothelioma for Dupree).
J&J’s defense will also argue Baby Powder, which it pulled from U.S. shelves under the threat of even more lawsuits, does not contain asbestos, despite testimony from plaintiffs experts that it does.
“The risks of confusion are especially potent in cases, like these, involving complex and unfamiliar theories of scientific causation,” the brief says.
“Understanding the science is made exponentially harder when the jurors are forced to grapple with different scientific theories and evidence for multiple plaintiffs simultaneously.”