The latest happenings in the ongoing talc-ovarian cancer suits against Johnson & Johnson aren’t good news, particularly for two plaintiffs whose cases were already decided. The corporation recently succeeded in its efforts to have two of the larger verdicts (one of which is the largest verdict) reversed.
The latest happenings in the ongoing talc-ovarian cancer suits against Johnson & Johnson aren’t good news, particularly for two plaintiffs whose cases were already decided. The corporation recently succeeded in its efforts to have two of the larger verdicts (one of which is the largest verdict) reversed.
According to a story published by Insurance Journal, J&J asked for and was granted a hearing as it alleged, among other things, that “three jurors were excluded by fellow panelists from the decision-making process.” Other allegations include judicial error, evidentiary deficiencies, and of course, the size of the verdict. The hearing was held Thursday, October 19, and the ruling was handed down the next day.
The hearing over Mrs. Eva Echeverria’s case resulted in the reversal of the country’s fourth-largest jury award in 2017, a total of $417M. Earlier in the same week, the $72M verdict in Mrs. Jacqueline Fox’ case was reversed on jurisdictional issues.
Mrs. Fox, an Alabama resident, was awarded her verdict – $10M in actual damages and $62M in punitive damages – in February 2016 after her case was heard by the Missouri Eastern District Court. There is a good chance the verdict would have stood the test but for a U.S. Supreme Court case decided this summer.
The SCOTUS issued a ruling in favor of Big Pharma company Bristol-Myers Squib (BMS) in a challenge to jurisdiction in a case over its blood thinning drug, Plavix. In essence, the ruling said there must be a connection between the state in which a suit is filed and the plaintiff filing the suit. It’s common practice for larger, multiple-plaintiff suits to be filed in a jurisdiction that may be more favorable to plaintiffs, even when some of the joined plaintiffs may not live in that jurisdiction.
Such was the case with Mrs. Fox, who unfortunately passed away in 2015, mere months before her case went to trial. Of the 64 other plaintiffs in that case, only two were Missouri residents.
The BMS ruling has sent shock waves through the plaintiffs’ bar, as it basically puts an end to non-resident plaintiffs being joined in suits unless they can be shown to have enough of a connection to the state where the case is being heard. The SCOTUS ruling is so new still that its effects haven’t become completely clear.
Regarding Mrs. Echeverria’s case, J&J’s appeal, filed in California Superior Court, alleged judicial error when the trial court allowed the jury to consider that Mrs. Echeverria’s cancer could have had “multiple causes,” but that J&J’s talc was the biggest. The multiple causes theory was also the cause of the alleged problems with certain jurors being excluded from discussions.
During deliberations, the twelve-member jury was evenly split as to J&J’s liability until one juror mentioned the multiple causes theory. It was then that the vote became 9-12 in Mrs. Echeverria’s favor. Following this shift, J&J alleged that the majority excluded the other three from participating in discussions over the amount of the award.
According to J&J, the foreperson (one of those in the minority) and one of the other two jurors told the same story of being excluded. However, Mrs. Echeverria’s lawyer, Mark Robinson, told a different story. According to Mr. Robinson, all of the jurors participated in the damages discussion. As to how they deliberated and reached the verdict, he said such things cannot be used to second-guess the results.
These issues aside, Judge Maren Nelson ultimately sided with J&J and reversed the verdict. The basis for her decision was part business and part evidence.
Business-wise, Judge Nelson agreed with J&J’s argument that it (the parent company) couldn’t be held liable as it wasn’t the entity making and selling the powder. Instead, Johnson & Johnson Consumer Inc. (a separate entity from J&J) has been making baby powder for years, long before the first study in 1982 suggested a talc-ovarian cancer connection.
Judge Nelson reversed the verdict as regards J&J (parent company), as well as finding neither it nor J&J Consumer, Inc. should pay punitive damages since no persuasive evidence existed showing that either entity acted with malice. The judge went on to reverse the compensatory damages award against J&J Consumer, Inc. based on evidence that was, in her opinion, partly speculative.
She said, “The best that can be said is that there was, and is, an ongoing debate in the scientific and medical community about whether talc more probably than not causes ovarian cancer and thus giving rise to a duty to warn. Clear and convincing evidence of malice is lacking.”
Of course, J&J is happy with this turn of events. An email statement from J&J spokesperson Carol Goodrich said, “The science is clear and we will continue to defend the safety of Johnson’s Baby Powder as we prepare for additional trials in the U.S.”
The company will have ample opportunity to do so, with over 1,000 pending cases and an appeal of Judge Nelson’s ruling.
Mr. Robinson said via email, “We disagree with the court’s decision. A jury of Ms. Echeverria’s peers found the Johnson & Johnson defendants liable. We will ask the appellate court to uphold this jury’s verdict. We will continue to fight on behalf of all women who have been impacted by this dangerous product.”
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