COLUMBIA, S.C. (Legal Newsline) - Plaintiffs dismissed a pair of talc lawsuits against Johnson & Johnson before the question of whether they should be combined in a single trial was presented to the South Carolina Supreme Court, postponing a decision on a practice defendants say unfairly prejudices them with jurors.
Neither side would comment on the reason for the dismissal of lawsuits, which involved a 19-year-old woman who had been diagnosed with a form of mesothelioma and a 70-year-old man who died of the disease. Johnson & Johnson maintains its Johnson’s Baby Powder is safe, but it announced plans to withdraw talc-based powder in May and it has paid to settle cases before.
The company reportedly agreed to pay $2 million in January to settle a talc case mid-trial in plaintiff-friendly Oakland, Calif., and another talc case in Connecticut in March. The company disclosed $600 million in litigation expenses, mostly related to talc, in the first six months of 2020. In June, a Missouri appeals court reduced a $4.7 billion jury verdict in a 2018 trial to $2.1 billion. Johnson & Johnson is appealing to the state’s highest court.
Johnson & Johnson had a 3-0 record of defense wins in talc lawsuits in South Carolina when Judge Jean Toal in Charleston combined lawsuits by Terran Dupree and the survivors of Robert Devey for a single trial. The company argued in an Aug. 17 brief to the South Carolina Supreme Court that the two cases had little in common other than claims both plaintiffs had used Johnson’s Baby Powder, which might lead jurors to believe the product was to blame.
Devey died of pleural mesothelioma at age 70 and had occupational exposure to asbestos, which is associated with his disease. His lawyers claimed he also used Johnson’s Baby Powder for 55 years. Dupree is a 19-year-old woman with peritoneal mesothelioma, a cancer of the abdominal lining that is not usually associated with asbestos.
She was diagnosed at age 14 and was apparently successfully treated for her disease. Lawyers have invested tens of millions of dollars in advertising for female clients in talc lawsuits, which provide a way to sue over mesothelioma cases that can’t easily be attributed to industrial exposure.
The U.S. Chamber of Commerce, insurers and tort-reform groups objected to the trial plan in an amicus brief to the South Carolina Supreme Court. While it makes sense to combine lawsuits that stem from the same occurrence, such as a plane crash or toxic chemical leak, the organizations said, it is improper to combine dissimilar lawsuits because the stronger cases can prejudice the jury toward defendants in weaker cases.
Jurors may assume that because all the plaintiffs are blaming the same product for their injuries, that product must be to blame, defendants argue. They cited several academic studies showing plaintiffs win more money in consolidated trials, including in New York’s asbestos court known as NYCAL, where juries awarded 250% more per plaintiff in consolidated trials than in individual ones.
They also disputed the idea consolidated trials save time and money, since they take longer and typically require more involved jury instructions and procedural maneuvering by both sides. Defendants also believe they inspire plaintiff lawyers to file more suits, confident they can use stronger cases to coerce settlements of weaker ones.
Several states have barred or limited consolidations, including Michigan, Mississippi, Texas and Georgia. If South Carolina declines to follow their lead, the organizations said, it should at least limit consolidated trials to cases involving plaintiffs who held similar occupations, the same disease and the same extent of exposure.
"Consolidations of dissimilar cases are unfair and jurisdictions across the county have banned or sharply limited them in asbestos cases,” said Mark Behrens with Shook, Hardy & Bacon, who represents the amici. “We had hoped that the South Carolina Supreme Court would have the opportunity to provide much-needed clarity to litigants and the circuit court and to make clear that fairness should never be sacrificed for expediency in litigation. “