New Jersey based pharmaceutical, medical and consumer goods giant Johnson & Johnson has found itself at the center of national litigation conversation over the last few years due to explosive verdicts rendered against it over allegations that its talcum powder causes ovarian cancer and asbestos-related respiratory illnesses. In 2016 and 2017, Johnson & Johnson saw four verdicts in St. Louis ovarian cancer cases alone, with verdicts rendered in favor of the female plaintiffs of approximately $55 million, $70 million, $72 million and $110 million. Perhaps most shocking, however, was a $4.69 billion verdict obtained by twenty-two (22) different women suffering from ovarian cancer. In addition to $550 million in compensatory damages, the jury ordered Johnson & Johnson to pay $4.14 billion in punitive damages. Despite the trial itself exceeding six weeks, the St. Louis jurors reportedly reached their conclusion and verdict in less than one day. A Los Angeles jury ordered Johnson & Johnson to pay a California woman $417 million in damages in 2017, including $347 million in punitive damages.
Despite the number and seemingly exorbitant amount of these verdicts, Johnson & Johnson has successfully negated its liability in the ovarian cancer realm through the appellate process. In July 2019, a California appeals court ordered a retrial in the 2017 case that resulted in the $417 million verdict, noting the evidence whether the Johnson & Johnson products caused ovarian cancer was in “significant conflict.” Missouri appellate courts have overturned four of the five Missouri verdicts, excepting the $4.69 billion verdict which remains under appeal. However, all four verdicts were reversed on personal jurisdiction challenges, with none of the appeals addressing substantive issues related to the historical, medical or scientific evidence presented in the cases.
By 2018, Johnson & Johnson and other talc defendants were also commonly named defendants in thousands of lawsuits claiming that asbestos-contaminated talcum powder and baby powder caused plaintiffs to develop traditional asbestos-related diseases such as mesothelioma. Johnson & Johnson was hit with large verdicts in numerous cases throughout the country in 2019.
In March 2019, an Oakland jury awarded Teresa Leavitt $29.5 million in compensatory damages in a mesothelioma case. A few months later in May 2019, a New York state jury found Johnson & Johnson liable to Donna Olson and her husband to the tune of $25 million dollars, with $300 million in punitive damages being awarded thereafter. Four mesothelioma plaintiffs were awarded a total of $37.3 million by a New Jersey jury in September 2019. In those cases, punitive damages were reserved for further trial, meaning Johnson & Johnson may face an additional punitive damages award approaching or exceeding $100 million. Furthermore, that was the second verdict rendered against Johnson & Johnson in its home state of New Jersey, following an April 2018 verdict for a mesothelioma plaintiff and his wife for $117 million, including $80 million in punitive damages. In that case, Johnson & Johnson was ordered to pay 70% of the damages and talc supplier Imerys Talc America the remaining 30%. In June 2019, an Alameda County jury in California found Johnson & Johnson and co-defendant Colgate-Palmolive both 40% liable to a female mesothelioma plaintiff in a case where a total of $12 million in compensatory damages were awarded. More recently, a Los Angeles jury awarded an Idaho plaintiff and her spouse $40.3 million in compensatory damages in September 2019.
However, Johnson & Johnson and other talc defendants have had a great deal of success at the trial court level as well. In May 2019, a South Carolina unanimously ruled in favor of Johnson & Johnson, finding that its products did not contain asbestos or cause the female plaintiff’s mesothelioma. In post-trial remarks, a Johnson & Johnson spokesperson touted their widespread successes, noting that it was “the fifth verdict in favor of Johnson & Johnson in recent months, and the two cases finding in favor of the plaintiff this year have suffered significant evidentiary errors which we believe will warrant reversal on appeal.” Johnson & Johnson and co-defendant Colgate Palmolive Inc. also received a defense verdict in a deceased mesothelioma case in Kentucky in August 2019. Despite the two verdicts entered against it, Johnson & Johnson has also received two defense verdicts in its home state of New Jersey. It’s most recent New Jersey win occurred in March 2019 after a nearly one-month trial, where the jury deliberated for just half of a day before rendering a unanimous defense verdict in a living mesothelioma case. This defense verdict came on the heels of a similar verdict in New Jersey from October 2018, where jurors needed less than 30 minutes to unanimously conclude that the female plaintiff’s mesothelioma was not caused by inhaling asbestos from Johnson & Johnson Baby Powder.
Johnson & Johnson claims that its products never contained asbestos and have always been safe for use, whereas plaintiffs have claimed that Johnson & Johnson talcum powder and baby powder have contained asbestos for years and that the company knowingly tried to conceal this fact. Johnson & Johnson touts its successful appeals of all verdicts rendered against it in talc litigation, though multiple appeals remain pending. Furthermore, it remains to be seen what will come of verdicts overturned and cases dismissed purely on jurisdictional issues. Clearly, there is a battle being waged over whether talcum powder causes ovarian cancer, whether talcum powder contained or contains asbestos and whether asbestos-contaminated talcum powder can cause traditional asbestos-related respiratory illnesses such as mesothelioma. Jurors in certain venues appear more readily inclined to find for plaintiffs on all the historical, medical, scientific and causation issues, whereas jurors in other venues, as well as judges in multiple venues throughout the country, appear inherently doubtful regarding the validity of plaintiffs’ claims. Furthermore, despite staunch denials that its products never contained asbestos, Johnson & Johnson voluntary recalled a batch of its baby powder in October, following the discovery of trace amounts of chrysotile asbestos after EPA ordered testing. However, Johnson & Johnson has disputed the validity of these findings, claiming that the testing performed by the FDA’s contractor was performed improperly, leading to contaminated sampling. It remains to be seen how this evidence, and all other evidence, will be viewed and understood by future juries, judges and appellate courts.