A Missouri appeals court is pondering whether to overturn a verdict and $4.69 billion award against Johnson & Johnson over claims its talc-based powder caused ovarian cancer.
Arguments were heard before the three judge panel, with the New Jersey-headquartered company arguing that the cases of the 22 women should not have been joined together, particularly as 17 were not from Missouri. The company has successfully argued for the overturning of other verdicts by juries in St. Louis City.
Johnson & Johnson attorney Thomas Weaver, who asked the court to reverse the verdict, said the joining of so many cases prejudiced the jury. Each of the plaintiffs were awarded $25 million, with the jury adding $4.14 billion in punitive damages.
Thomas Weaver
“If this is not an abuse of discretion, if this didn’t warrant separate trials, I can’t imagine a case that would,” Weaver, of Armstrong Teasdale in St. Louis, told the court.
The hearing, one of only a few in-person court proceedings to be held during the COVID-19 crisis, was broadcast on the district's Facebook page. Only two attorneys were allowed in the court.
J&J faces thousands of lawsuits claiming the company's Baby Powder and Shower to Shower products caused ovarian cancer. It is alleged that the products contained asbestos and that the company knew of the dangers but continued to market and sell them.
Many of the cases will be heard by a federal court in New Jersey, where U.S. District Judge Freda Wolfson ruled last week that the cases could move forward but with some limits on the expert testimony that will be allowed. The company had hoped to block any of the experts from testifying.
In a statement following the ruling J&J said the decision "is not a determination by the court on the validity of the plaintiffs' allegations." The company also highlighted the overturning of all verdicts against the company on appeal.
In October, the Missouri appeals court overturned a $110 million verdict, ruling that St. Louis Circuit Court lacked jurisdiction over the claim by a Virginia woman. Overall, in eight cases, a verdict has been overturned by an appeals court or a jury has ruled in favor of the company.
In arguments over the $4.69 billion verdict and award, Weaver told the three judge panel that the awarding of an indentical sum to all revealed that the jury did not consider the merits of each case.
Weaver further argued that the jury returned with a verdict in not much more time that it took the judge to read the instructions.
“It could not have been a fair trial, trying these 22 claims together, however it was tried,” Weaver said. “The prejudice inherent in tying 22 claims together is inescapable in terms of how it’s tried. You’re going to have a jury every day confronted with a courtroom filled of women who have ovarian cancer or the families of women who have had ovarian cancer and died.”
Among the other arguments made by the attorney were that the punitive award was "unconstitutionally excessive" and that the court lacked jurisdiction over the out-of-state plaintiffs.
Plaintiff attorney Kevin P. Parker, of The Lanier Law Firm in Houston, Texas, argued that it was proper that the cases were joined together.
“The case law teaches us that when you have especially in toxic-tort cases when you have overlapping issues, consolidation or a joinder of these claims is proper,” he said, adding that much of the argument during the trial centered on issues affecting all the plaintiffs.
Parker said the awarding of the same amount of compensatory damages was unsurprising because of the common issues, and that the defendants did not argue during trial that the plaintiffs should be treated differently.
The trial was the first where the plaintiffs argued that asbestos fibers caused the cancer. Much of the evidence centered on internal company documents it is claimed reveal that the J&J knew of the contamination of its products since at least the 1970s.
St. Louis Circuit Court Judge Rex Burlison, who has presided over several talc cases, refused to overturn the verdict, a decision that led to the appeals court filing.
In his ruling, the judge said, "Substantial evidence was adduced at trial of particularly reprehensible conduct on the part of defendants, including that defendants knew of the presence of asbestos in products that they knowingly targeted for sale to mothers and babies, knew of the damage their products caused, and misrepresented the safety of these products for decades.”