WASHINGTON (Legal Newsline) – Frustrated by the courts system in Missouri, Johnson & Johnson is asking for relief from the nation’s highest court.
The company on March 2 made its plea to the U.S. Supreme Court to review the $2 billion verdict that originated in St. Louis and would be awarded to 22 women who blame the company’s Baby Powder for their ovarian cancer.
Jurors originally awarded $4.7 billion in a battle of the experts. They believed the scientists called on by attorney Mark Lanier to prove there is actually asbestos in the talc used for Baby Powder, which has since been removed from the U.S. market.
An intermediate court of appeals affirmed the liability ruling but trimmed damages to $2.1 billion. It is still the largest verdict in the tens of thousands of lawsuits against the company, and some of them also allege Baby Powder causes mesothelioma.
“If the Due Process Clause means anything, it means that a defendant cannot be deprived of billions of dollars without a fair trial,” lawyers for the company wrote to SCOTUS. “The mass trial of 22 plaintiffs’ claims here obscured plaintiffs’ individual circumstances—and Petitioners’ individual defenses—through the sheer breadth of testimony and instructions thrown at the jury.
“Consolidation obviously had that effect because the jury returned 22 identical verdicts for 22 dissimilar plaintiff families and because each plaintiff received awards that far-outstripped the compensatory verdicts against Petitioners in single-plaintiff Missouri cases.”
In a statement, the company touted its Baby Powder as safe and called the trial “fundamentally flawed.”
Among other things, trial judge Rex Burlison ruled his court had jurisdiction over lawsuits by out-of-state plaintiffs against J&J because the New Jersey company had briefly distributed talcum powder from a Missouri supplier.
The appeals court upheld jurisdiction for most of the cases and rejected J&J’s argument that putting multiple plaintiffs together into a single trial unfairly prejudiced the jury. The state Supreme Court refused to review.
The 2018 had Lanier using props like a block of cheese and a scientifically implausible diagram showing “asbestos baby powder” pushing a woman at high risk of cancer off of a cliff to convince the jury to award $4.7 billion to 22 women or their family members.
Judge Burlison allowed Lanier to bring the out-of-state plaintiffs into his St. Louis court despite a U.S. Supreme Court decision the year before limiting the jurisdiction of state courts over claims against out-of-state defendants arising from actions that also occurred out-of-state. Many of the plaintiffs in the St. Louis trial had no connection with Missouri, yet Judge Burlison asserted jurisdiction because J&J had once licensed the production of a sister product called Shimmer by a Missouri company.
The judge also allowed plaintiff attorneys to make prejudicial arguments such as telling jurors the sole thing the plaintiffs had in common was their use of Baby Powder, J&J said. Given causation was the central issue in the case, the company argued, jurors could be led to believe causation was proved by the mere fact 22 women had cancer and all said they got it from Baby Powder.
Despite widely varying circumstances – one woman had been in remission from cancer for 32 years, and some plaintiffs made claims for loss of consortium or death while others only sought money for their illness – the jury awarded an identical $25 million in each case.
The judge also allowed Lanier to tell the jury the governing “but-for” standard under Missouri law had been “made up” by the defense. This was a key point in the trial, because defense lawyers extracted a concession from a plaintiff expert who couldn’t say the women wouldn’t have gotten cancer if they didn’t use talc.
Defense lawyers raised this in closing arguments, saying the plaintiffs failed to prove their case under Missouri’s but-for standard. But Lanier seized upon the fact “but-for” doesn’t appear in the standard jury instructions to tell jurors it wasn’t the law when in fact it is, J&J said.
The company also argues the punitive damages are excessive under Supreme Court standards limiting them to at most nine times compensatory damages and less when jurors order substantial conventional damages. The appeals court upheld the punitive damages, saying there was ample evidence J&J “engaged in outrageous conduct because of evil motive or reckless indifference,” citing internal documents suggesting some executives thought talc supplies might be contaminated with asbestos fibers.
The company says it tested its products continuously and never found asbestos. The only experts who have found asbestos in cosmetic talcum powder have been paid by plaintiff lawyers, examining samples from previously opened bottles those lawyers say they purchased on eBay and elsewhere. Johnson & Johnson has argued successfully in some jurisdictions old samples cannot be trusted since asbestos is ubiquitous in the air of most structures and could have contaminated the open containers.