COLUMBIA, S.C. (Legal Newsline) – Johnson & Johnson is seeking judgment notwithstanding the verdict or a new trial outright, in the case of a man who won a $63 million verdict against it for talc-related asbestos exposure claims – claims which the company says were not properly substantiated at trial and erroneously allowed to proceed.
J&J, LLT Management, LLC, Johnson & Johnson Holdco (NA), Inc. and Kenvue Inc. filed an Aug. 26 motion in the Richland County Court of Common Pleas in South Carolina to overturn a jury’s finding just 11 days earlier that the defendants were liable for Michael L. Perry’s development of mesothelioma – a fatal cancer of the chest lining that is typically associated with industrial levels of exposure – related to what they argued was their exposure to asbestos-contaminated talc powder.
The jury awarded Perry $3.8 million in economic damages, $19.3 million for pain and suffering, $9.6 million to his spouse Lonnie L. Long for loss of consortium and $30 million in punitive damages. The jury also ordered J&J’s co-defendant American International Industries to pay him $760,000.
Asbestos lawsuits in South Carolina more than doubled after its state Supreme Court picked Judge Jean H. Toal, a former Chief Justice, to serve as judge for all of the state’s asbestos cases in 2017.
The increase coincided with an influx of cases brought by the firm representing Perry, Dean Omar Branham Shirley, which also won a $260 million talc verdict in Oregon against J&J.
The American Tort Reform Association counted South Carolina among its “Judicial Hellholes” largely because of Judge Toal, who it said has a record of precluding defense evidence, imposing severe penalties on defendant companies and increasing jury awards.
J&J’s counsel contended that is what happened in Perry’s case, where Toal did not permit jurors to hear about Perry’s workplace exposure. It is one of several grounds J&J is pursuing in its appeal of the verdict.
Toal also denied several of J&J’s motions to present evidence that would have undermined the plaintiff’s theory that stray asbestos fibers in cosmetic talc caused his mesothelioma.
J&J Counsel Assert That Errors of Law Contributed to the Blockbuster Verdict
In their Aug. 26 motion for judgment notwithstanding the verdict and/or a new trial, J&J and their co-defendants argued that numerous errors of law were made by Judge Toal before and during the trial and allowed to proceed.
“This Court should reject the runaway verdict of the jury, which resulted from: 1) Plaintiffs’ counsel’s successful efforts to inflame and incite the jury to make a decision based on matters other than evidence and on inappropriate evidence and arguments; 2) the introduction of improper evidence relating to third-party harm; 3) improper arguments describing the law of causation in a toxic tort case, not cured by court instruction,” according to the motion.
“4) Failure of proof of causation and the jury’s substitute of speculation respecting causation, and 5) rulings which precluded the J&J defendants from putting on their defenses. The verdict is shocking to the conscience, and thus requires a new trial absolute, if JNOV/directed verdict is not awarded. Failing that, the verdict should be reduced by way of new trial nisi remittitur.”
The defendants elaborated on why a new trial should be ordered.
“J&J defendants submit that each of the errors claimed and argued entitle them to a new trial. Alternatively, they are entitled to new trial because of the cumulative effect of this Court’s errors. These errors included evidentiary errors, errors in the jury instructions, errors by counsel in closing argument and erring by refusing to sever [American International Industries] from J&J defendants. The combined effect of these errors was to deprive J&J defendants of a fair trial, making it virtually impossible to present a successful defense,” per the motion.
“The combined effect of this Court’s errors in, instructing the jury on causation – by not charging ‘but for’ and ‘specific causation’ and failing to define ‘substantial factor’ causation – meant that the definition of causation in a toxic tort case put before the jury was significantly less robust (and significantly more plaintiff friendly-essentially anything more than zero causation) than South Carolina’s law of substantial factor causation. For all of these reasons, J&J defendants are entitled to a new trial absolute.”
Barring any of that relief, J&J asks that the verdict be remitted substantially, and the punitive damages award be done away with.
“The evidence simply does not support the massive loss of consortium award to Mr. Long. Nothing unusual about his loss of services of explained to in detail to justify a $9M loss. Again, there is no attempt here to deny that he has suffered loss. But the jury’s award is grossly excessive or, failing that, overly liberal. The award to Mr. Perry is also shockingly excessive and, failing that, overly liberal,” J&J’s motion stated.
From Legal Newsline: Reach Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com