A Missouri appeals court upheld a jury verdict against Johnson & Johnson over cancer caused by its baby powder, but the court reduced the award from $4.7 billion to $2.1 billion.
“Plaintiffs proved with convincing clarity that defendants engaged in outrageous conduct because of an evil motive or reckless indifference,” the court said. “There was significant reprehensibility in defendants’ conduct.”
The court said in an 83-page opinion that the plaintiffs had proven that J&J concealed for decades that the talc products contained asbestos, “worked tirelessly” to ensure that testing protocols would not detect asbestos in all talc samples and, published articles downplaying the safety hazards of talc.
“The harm suffered by plaintiffs was physical, not just economic,” Judge Hess wrote. “Plaintiffs each developed and suffered from ovarian cancer. The plaintiffs underwent chemotherapy, hysterectomies, and countless other surgeries. These medical procedures caused them to experience symptoms such as hair loss, sleeplessness, mouth sores, loss of appetite, seizures, nausea, neuropathy, and other infections. Several plaintiffs died, and surviving plaintiffs experience recurrences of cancer and fear of relapse.”
The unanimous decision by the Missouri Court of Appeals’ Eastern District came on June 22, 2020, in the case of 22 women who developed ovarian cancer from using J&J’s talc-based baby powder. The case is Robert Ingham v. Johnson & Johnson, Case No. No. ED107476, with Presiding Judge Philip M. Hess.
The court rejected Johnson & Johnson’s bid to throw out the 2018 jury verdict in favor of women. Facing 19,000 lawsuits, J&J stopped selling its cancer-causing baby powder in the US and Canada.
Chief US District Court Judge Freda L. Wolfson in New Jersey is overseeing 17,609 cases MDL 2738, IN RE: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation.
Slashing the jury award down from $4.69 billion, the court revised it to $500 million in actual damages and $1.62 billion in punitive damages.
J&J said it would appeal to the Missouri Supreme Court.
Mark Lanier, the lead lawyer for plaintiffs, called the decision “a clarion call for J&J to try and find a good way to resolve the cases for the people who have been hurt.”
Plaintiffs’ attorney Eric Holland added, “I’m pleased that all three judges agreed. I’m also pleased that they so carefully looked at the evidence, and I was so impressed with how they were able to dive into what amounted to a 6,000-page record in what was a six-week trial and come up with what happened here. Very impressive work.”
J&J a bad actor for 50 years
J&J has faced intense scrutiny of its baby powder’s safety following a 2018 Reuters investigation that found it knew for decades that asbestos lurked in its talc.
• Internal company records, trial testimony, and other evidence show that from at least 1971 to the early 2000s, J&J’s raw talc and finished powders tested positive for asbestos.
• Its talc supplier Rio Tinto Minerals warned that there was no safe level of asbestos exposure
• J&J has been the target of a federal criminal investigation into the safety of its talc products, as well as an investigation by 41 states of its baby powder sales.
• The company has also faced an investigation by a congressional subcommittee on the health risks of asbestos in consumer products containing talc.
11 of the 22 women plaintiffs did not live to see the ruling.