The past few years have seen a significant increase in toxic tort litigation against Johnson and Johnson, alleging their talcum powder products, mainly Baby Powder and Shower to Shower, cause mesothelioma and ovarian cancer. Some of these suits have resulted in significant damage awards against Johnson and Johnson. For instance, in California, an Alameda County jury rendered a $29.4 million verdict on March 13, 2019 to 52 year old mesothelioma plaintiff. On May 28, 2019, a Manhattan jury awarded $25 million in compensatory damages and $300 million in punitive damages to a 66 year old mesothelioma plaintiff who used Johnson’s Baby Powder. On September 11, 2019, in a consolidated case, a New Jersey Middlesex County jury awarded $37.3 million to two men and two women diagnosed with peritoneal mesothelioma. Notwithstanding these large verdicts rendered in jurisdictions around the country, Johnson and Johnson has, in some cases, mounted successful defense strategies.
On October 1, 2019, in Georgia, a three week ovarian cancer trial against Johnson and Johnson ended in a mistrial. Juries in Georgia must reach unanimous verdicts in civil cases. After three days of deliberations, the Fulton County jury was deadlock 10-2 in favor of the Plaintiff, Diane Brower, who passed away in 2016. She claimed to have applied Johnson and Johnson’s talcum powder products on her perineal area for more than 15 years before stopping around 1980. This matter was especially interesting as it did not follow the traditional methodology that the malignancy was caused by the contaminated of asbestos in talc. Here, a pre-trial order prohibited any reference to the term “asbestos” at trial. Therefore, the majority of trial’s focus was on the alleged carcinogenicity of Johnson and Johnson’s talc. Counsel for Plaintiff argued that Johnson and Johnson knew, as early as the 1950s, of the danger of talc fibers and that cornstarch was a safe alternative. For its part, Johnson and Johnson argued that there was no valid scientific study proving that talc could make its way from a woman’s perineal area to her ovaries and Plaintiff most likely suffered from a genetic predisposition to ovarian cancer.
In September of 2018, the trial of Carolyn Weirick, et al., v. Johnson and Johnson ended in a hung jury. Just over a year later, on October 9, 2019, a Los Angeles County jury rendered a defense verdict for Johnson and Johnson in a re-trial by a count of 10-2. This defense verdict came less than two weeks after another L.A. County jury awarded a $40.3 million to a pleural mesothelioma plaintiff, Nancy Cabibi. While both cases were tried in Los Angeles County, the significant difference in results underscores the human element in trying cases, i.e. the jury pool. Notably, Weirick was tried in Torrance, California, a venue that is believed to be “defense friendly” as the jury pool is more likely to be comprised of engineers and more conservative jurors. However, Cabibi was tried in downtown Los Angeles where the jury pool is more eclectic and unpredictable.
In addition to trial level victories, Johnson and Johnson has also had success reversing large jury verdicts on appeal. On October 15, 2019, the Court of Appeals of Missouri in Slemp v. Johnson & Johnson & Johnson & Johnson Consumer Cos., No. ED106190, 2019 Mo. App. LEXIS 1642 (Ct. App. Oct. 15, 2019) overturned a $110 million verdict based on allegations that Johnson and Johnson’s talcum products caused Ms. Slemp’s ovarian cancer. However, this verdict was not reversed on the merits. The appeal was based on the argument that the trial court lacked personal jurisdiction over Johnson and Johnson because Plaintiff was not a Missouri resident, the exposures and product purchases all occurred outside of Missouri. The underlying case was brought by 62 Plaintiffs, only one of which was a Missouri resident. Ms. Slemp, a native of Virginia and one of the non-resident Plaintiffs, had her claims tried separately. Her exposure to Johnson’s products occurred in Virginia and the products she used were manufactured in Georgia.
The Missouri Court of Appeals agreed with Johnson and Johnson and vacated the underlying verdict due to the United State Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court of Ca., 137 S.Ct. 1773 (2017) (BMS) which clarified the existing law on specific personal jurisdiction requiring the trial court have personal jurisdiction over the defendants with regard to each claim, rather than establishing personal jurisdiction by allowing non-residents to join similar claims with those of Missouri residents. It may be that Johnson and Johnson will use the precedent of BMS to prevent similar forum-shopping consolidation from occurring in other jurisdictions where it is named in a significant number of cases and the Plaintiff’s claims have no meaningful connection to the forum state. That said, Johnson and Johnson, as indicated above, has sustained substantial adverse verdicts in its home state of New Jersey.
For more information on this topic, and on talc litigation generally, please contact MKC&I’s Joel Clark, Pooja Patel or Caitlin Bodtmannin our Florham Park, New Jersey office at (973) 822-1110.