As expected, Johnson & Johnson has appealed a $2.1 billion judgment over allegations that its talcum powder causes ovarian cancer to the highest court in the land.

The company petitioned the Supreme Court on March 2 to review the multi-billion dollar verdict issued last June by the Missouri Court of Appeals for the Eastern District. In an accompanying release, the company asserted that the trial was “fundamentally flawed” and yielded an “incorrect verdict and arbitrary and disproportionate damages.”

The move was long expected, as the company has been threatening to do so since November, when its appeal of the verdict to the Missouri Supreme Court was denied. In anticipation of the costs associated with this and thousands of other cases alleging that the company’s talcum products were tainted with asbestos, Johnson & Johnson has set aside $3.9 billion for litigation costs, according to a company filing last month.

Two Products and 22 Cases

Missouri’s Ingham case — named for one of the plaintiffs — involved 22 women who claimed they developed ovarian cancer after continued use of two Johnson & Johnson talcum products: Johnson’s Baby Powder and Shower to Shower.

The plaintiffs also contended that the company had known for decades that their products were contaminated with asbestos and other carcinogens, but “mounted a concerted effort to avoid warning government regulators and public health officials, the scientific and medical community, and the public of the contents of the products.”

“The jury was confronted with 22 different plaintiffs with dramatically different cancer-risk profiles, prognoses, and talc use. The mass trial papered over these differences, allowing the jury to overlook significant weaknesses in individual plaintiffs’ claims — and to infer causation from the number of plaintiffs before it.” — J&J petition

Johnson & Johnson has long denied these allegations, something it reiterated in its March 2 release. “The Ingham verdict is ... at odds with decades of independent scientific evaluations confirming Johnson’s Baby Powder is safe, is not contaminated by asbestos and does not cause cancer.”

The trial judge in the Missouri appeals case ultimately awarded the plaintiffs more than $500 million in actual damages and a whopping $1.6 billion in punitive damages.

Due Process

Johnson & Johnson’s high court petition raised many points of law it views as worthy of Supreme Court review, but foremost among its concerns was due process.

The company contended that it was fundamentally unfair for all of the plaintiffs in the case to be joined together in a mass trial, arguing that such trials “obscure difficult causation questions.” They also alleged that the mass trial process effectively creates a “perfect plaintiff” by combining the most dramatic features of different cases to achieve maximum effect.

Different Strokes for Different Folks?

“The jury was confronted with 22 different plaintiffs with dramatically different cancer-risk profiles, prognoses, and talc use,” the petition stated. “The mass trial papered over these differences, allowing the jury to overlook significant weaknesses in individual plaintiffs’ claims — and to infer causation from the number of plaintiffs before it. For example, if Ms. Ingham’s case had proceeded individually, the jury would have heard about her year with cancer, how she went into full remission, and how she spent the next 32 years cancer-free.”

According to the company, there’s no theoretical limit on the number of cases that could be consolidated together for trial, “so long as the jury was instructed to consider each case individually. That is no way to assure a fair trial,” it argued.

“The [high] court has repeatedly sought to curb abuses in class-action litigation; it should do the same for mass-tort litigation,” the petition concluded.

Many of these same points were rejected by the Missouri appellate court, which noted that the various plaintiffs’ allegations “arose out of the same basic injuries, same defect, same alleged duty, and same causes of action.”

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