NEW YORK (Legal Newsline) - A New York judge refused to reverse entirely a $350 million jury verdict against Johnson & Johnson over claims it sold asbestos-contaminated talcum powder, but he slashed it to $120 million including a severe cut to the punitive damages.
Judge Gerald Lebovits otherwise rejected J&J’s complaints that the trial in New York’s specialized asbestos court was marred by unreliable testimony from plaintiff experts and irregularities in the jury room that led one juror to complain there was a “child game” going on with jurors being manipulated into a pro-plaintiff verdict.
In an exhaustive, 61-page decision issued Nov. 11, Judge Lebovits said the jurors heard more than enough evidence to conclude that Johnson’s Baby Powder and Shower To Shower were not only contaminated with asbestos fibers but that plaintiff Donna Olson could have inhaled enough of them to contract mesothelioma, a cancer of the abdominal lining that is associated with asbestos exposure.
Johnson & Johnson argued the plaintiffs’ case depended upon the testimony of experts like William Longo, who claims to have found asbestos fibers in bottles of talc he obtained from plaintiff lawyers who purchased them on eBay and from other sources. Other courts have rejected such evidence as unreliable, given that previously opened bottles easily could be contaminated with the asbestos fibers that are ubiquitous in the atmosphere and particularly common in interior environments.
The Olson case represented a new phase in J&J’s battle against plaintiff lawyers who seized upon talc lawsuits as a way to explain cases of mesothelioma that lacked the traditional connection to industrial exposures that had driven the litigation for decades. By blaming a common consumer product for the disease and bringing the cases before New York’s NYCAL, infamous among defendants for its pro-plaintiff verdicts, lawyers found a rich new environment. Last year, J&J admitted defeat and announced it would remove talc-based baby powder from the U.S. market.
The Olson trial was split into two parts. In Phase One the jury found J&J liable for Donna Olson’s mesothelioma and awarded her and her husband $25 million in compensatory damages but also found J&J liable for punitive damages. In Phase Two the same jury awarded $300 million in punitives, the first time since 1994 that a NYCAL jury ordered punitive damages.
After the judgment J&J moved to set it aside as excessive and not supported by the evidence. The judge rejected outright dismissal but ordered a new trial on damages unless the Olsons agree to reduce the compensatory damages to $15 million and the punitives to $105 million. They promptly agreed to the reduction in a filing with the court.
To set aside the entire verdict as contrary to the evidence, the judge said, state law requires him to conclude “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury.”
Johnson & Johnson argued Olson failed to present any physical evidence she was exposed to asbestos, even though she had several half-used bottles she refused to test. The judge said that the long latency period between exposure and disease meant the opened bottles had probably been used too soon to the onset of her mesothelioma and “it would not have been feasible to locate and test particular bottles of J&J talcum powder” she used in the past. Circumstantial evidence was sufficient, he ruled.
The fact that Longo tested bottles the lawyers who hired him bought on eBay doesn’t mean the jury made an unacceptable leap of faith they were contaminated with asbestos, the judge ruled. J&J argued if Longo found asbestos, it was probably because the fibers are ubiquitous in the atmosphere and contaminated the samples after the bottles were opened.
That theory was “a legitimate topic for cross-examination,” the judge said, but not a reason to discard Longo’s testimony. Similarly, the judge rejected J&J’s claim Longo had perjured himself by testifying he hadn’t previously tested talc for asbestos, saying it was only an “inaccurate statement.”
Most disappointing for J&J was the fact the judge refused to invoke the 2018 Juni ruling by a New York’s highest court, which established tougher standards for establishing specific causation, or proof the defendant’s product caused the plaintiff’s disease. Last year a New York appeals court threw out one talc verdict because the plaintiff failed to “failed to establish a level of exposure sufficient to cause the illness.”
The judge said Longo and other experts provided enough evidence to prove Olson contracted mesothelioma from the talc she used. Scientific studies show there is about one asbestos fiber per 10 liters of ambient air and Longo testified Olson was exposed to 1000 times that level when she used talcum powder. A J&J internal document by its former director of toxicology estimated that an adult would be exposed to 4000 to 9000 fibers per liter of air if it was contaminated with asbestos at a level of 10 parts per million – a level of contamination J&J disputes.
The Juni decision is proving to be a less potent weapon than defense lawyers had hoped. A New York appeals court this year upheld a $2.9 million verdict in a talc case involving most of the same plaintiff experts.
The judge also ruled that the jury could find liability for design defect, even though J&J argued that was impossible since if there was asbestos in its talc that was a direct violation of its “design” specifications. The plaintiff doesn’t have to show the manufacturer intentionally designed its product to be dangerous, the judge ruled, but only that it presented “an unreasonable risk of harm to the user.”
Johnson & Johnson also argued it had no duty to place a warning label on the product because there was no asbestos in it. The judge said the jury could decide plaintiff experts were correct and the product was contaminated with asbestos, even if J&J says that finding is false. Olson testified she threw out all her bottles of Shower to Shower when she learned of a potential connection between talcum powder and cancer (there was no explanation of how this squared with other evidence she had kept partly-used bottles.)
Punitive damages were merited, the judge ruled, because J&J was on notice since the 1950s that it was possible its cosmetic talc was contaminated with the mineral tremolite that could in turn include asbestos fibers. But the company relied on a testing method that couldn’t detect fibers in the parts-per-million range, the judge ruled.
“The jury could rationally conclude on the trial record that J&J deliberately chose to rely on a testing method it knew would not uncover asbestos present in talc at dangerous levels,” the judge wrote.
Finally, the judge rejected J&J’s complaint he should have investigated a juror’s note complaining there was “a child game going on” and two jurors were “manipulating the deliberations.” That juror consistently disagreed with the other five in both phases of the trial and further inquiry into the complaints was “meritless,” the judge ruled.
Johnson & Johnson said the compensatory damages should be reduced to no more than $9 million to be in line with other asbestos cases. The judge said that would be “materially inadequate” because of the amount of time Olson had been suffering from mesothelioma. On punitive damages, he first rejected J&J’s argument it didn’t belong in NYCAL because it didn’t sell “asbestos products” as “creative, but ultimately unpersuasive.” But the judge said New York court decisions set the maximum ratio at 7:1, not the 12:1 the jury ordered. He set the punitives at $105 million.