The U.S. Supreme Court will likely decide next month whether to review a decision to allow a more than $2 billion verdict against J&J over claims its talc products caused ovarian cancer.
J&J has asked for the review, claiming the award to 22 women was excessive and is arguing that the court in Missouri was wrong to allow plaintiffs from outside the state to join the action.
Following a trial before St Louis City Circuit Court, a jury awarded the women $4.7 billion, later reduced to $2.1 billion, finding their use of Baby Powder and Shower to Shower, talc-based products, was linked to their ovarian cancer. An appeals court upheld the verdict and award, which was affirmed by the Missouri Supreme Court.
J&J has filed its application for a review, while along with amicus briefs in support following, with plaintiffs' due to answer by May 5. A decision is expected later in the month.
Cory L. Andrews, general counsel for the Washington Legal Foundation, a free enterprise legal and policy center, said his organization's brief in support focuses on the size of the punitive damages.
"More than a decade has passed since the Supreme Court last addressed the issue of constitutionally excessive punitive damages," Andrews told the St. Louis Record.
"Since then, the due process defects identified by the Court—such as a lack of fairness, a lack of consistency, and cumulative punishment—have only increased in severity.
"These changes are fueled by an increase in the size of mass tort actions, coupled with many courts’ reluctance to rein in constitutionally excessive punitive damages awards.
"The J&J award is just one of many, but it offers the Court an attractive vehicle to revisit the issue."
In a SEC filing, J&J stated it has set aside $3.9 billion to "primarily talc-related reserves and certain settlements," according to a recent report by Bloomberg, which added that the company faces 25,000 lawsuits, a 39 percent year-on-year jump.
"The fact that J&J has funds set aside to cover the verdict has no real bearing on whether the Supreme Court decides to grant review," said Andrews.
“Missouri, one of the most conservative courts in the nation, upheld a verdict because J&J killed countless women by maliciously hiding the asbestos in their baby powder,” Mark Lanier, plaintiffs' attorney told Bloomerg. “Now J&J wants a get out of jail free card. A responsible company would pay their debts."