In one of its many legal problems stemming from a rash of product liability cases, Johnson & Johnson is waging an appeal against a multibillion dollar verdict against it in the talc powder litigation. The company is seeking to persuade the Missouri Supreme Court to overturn a lower court verdict for $2.1 billion that was awarded to 22 women who claimed that they got ovarian cancer after long-term use of the product. The case is critically important for Johnson & Johnson, which is facing billions of dollars of liability connected to this product.
 

Plaintiffs Have Claimed that the Product Is Tainted with Asbestos

The specific allegations are that the company's flagship talc powder is tainted with asbestos. The specific issue is that talc and asbestos occur naturally near each other in the ground, and asbestos particles make their way into the talc during the mining. The company has vehemently denied these claims for decades. Plaintiffs have alleged that, despite these denials, Johnson & Johnson has known for years about the dangers of this product. A Missouri jury agreed and awarded the plaintiffs $4.7 billion. This verdict was upheld on appeal, but the damages were reduced to $2.1 billion as often happens after massive awards that include punitive damages.

One of the major issues is how a Missouri state court gained jurisdiction over the case. Many plaintiffs try to file in Missouri because St. Louis area juries are known to be more friendly to plaintiffs. Here, the trial court judge ruled that he had jurisdiction over the case because Johnson & Johnson had briefly used a Missouri supplier to distribute the talc powder. The trial court judge took an expansive view of jurisdiction as many of the plaintiffs had no connection whatsoever to Missouri. The Supreme Court had previously limited an out-of-state party from filing a case against another out-of-state party in a state court.

One of the major issues on appeal was the staggering punitive damages that the jury awarded the plaintiffs. The general standard espoused by the Supreme Court is that punitive damages may be no more than nine times the amount of compensatory damages. Verdicts with massive punitive damages are generally disfavored under the law. Punitive damages may be even less when the trial court has awarded large amounts of compensatory damages.
 

The Appeals Court Found Johnson & Johnson's Conduct to Be Extreme

However, the general standard limiting punitive damages is not an ironclad rule in all cases. Companies may be punished for extreme behavior. This is what happened in the initial jury verdict in the Roundup litigation. Here, the outrageous behavior in the eyes of the jury was that Johnson & Johnson actively took steps to combat the public perception of the danger of its product. Instead of pulling talc powder or adding a warning, the company tried to influence the scientific debate, allegedly knowing the full dangers of the product. The appeals court cited to internal documents that showed that the company knew of the contamination.

The company has also argued that the trial court should not have allowed the plaintiffs to proceed with a common case. According to Johnson & Johnson, the cases should have been required to proceed separately, and there was no reason to allow a single unified litigation. Even though each woman suffered differently, they were each given the same exact amount in compensation. One woman had been in remission from her ovarian cancer for over 30 years.

The company still continues to argue that its product is completely safe in spite of the mounting evidence to the contrary. An FDA test revealed that multiple lots of the product contained some amount of asbestos. In light of the tests, Johnson & Johnson withdrew the product from the U.S. market, claiming that the public opinion of the product was forever changed. The company still fervently denied the dangers of its product. Johnson & Johnson still continues to sell the product internationally.

Johnson & Johnson has had a mixed record in talc powder cases. While the company has won a handful of verdicts from juries, it has had several other verdicts against it over $25 million. There are nearly 20,000 open talc powder cases that are a part of multi district litigation in federal court. One can easily see how the talc powder lawsuits can grow into a major legal headache for a company involved in several major cases.