Court lowers $4.7B talc verdict but cites J&J's 'evil motive'
A Missouri appeals court concluded Johnson & Johnson’s conduct was 'outrageous because of evil motive or reckless indifference.'
A Missouri appeals court has sliced a $4.7 billion talcum powder verdict to $2.1 billion but refused to wipe out punitive damages, concluding that the evidence at trial showed Johnson & Johnson’s conduct was “outrageous because of evil motive or reckless indifference.”
In a Tuesday order, the Missouri Court of Appeals sided with Johnson & Johnson in reversing the jury award entirely as to two of the 22 women and their families who alleged that prolonged use of its baby powder, which contained asbestos, caused them to get ovarian cancer. The unanimous panel, which heard oral arguments earlier this year, also reversed the awards against Johnson & Johnson as to another 15 women who used Shower to Shower, another talcum powder product, because they were not from Missouri and, as such, lacked personal jurisdiction to bring their claims in St. Louis City Circuit Court.
But, rejecting one of several of Johnson & Johnson’s arguments, the panel refused to toss punitive damages altogether.
“Viewing the evidence in the light most favorable to the verdict, we find plaintiffs proved with convincing clarity that defendants engaged in outrageous conduct because of an evil motive or reckless indifference,” the opinion says. “A reasonable inference from all this evidence is that, motivated by profits, defendants disregarded the safety of consumers despite their knowledge the talc in their products caused ovarian cancer.”
Because it reversed some of the jury’s award, the appeals court lowered the $4.14 billion in punitive damages to $715.9 million against Johnson & Johnson and $900 million to its subsidiary, Johnson & Johnson Consumer Companies Inc., neither of which was the 1:1 ratio the defendants had insisted was constitutional.
“We find there was significant reprehensibility in defendants’ conduct,” the appeals court said. “Because defendants are large, multi-billion dollar corporations, we believe a large amount of punitive damages is necessary to have a deterrent effect in this case.”
Mark Lanier, of The Lanier Law Firm in Houston, who handled the trial, and whose firm partner, Kevin Parker, argued the appeal, said the plaintiffs would not challenge the ruling, which he anticipated the Missouri Supreme Court would affirm if necessary.
“A well-reasoned, 80-plus page opinion has got to be noted I would think by the Supreme Court when they decide whether or not there’s a problem here,” he said.
A spokeswoman for Johnson & Johnson, which was represented by Thomas Weaver of Armstrong Teasdale in St. Louis on appeal, did not respond to a request for comment.
The verdict remains the largest talc award against Johnson & Johnson, which announced last month it would discontinue sales of talc-based baby powder.
The jury, in 2018, awarded $25 million in compensatory damages to each plaintiff, for a total of $550 million. Half the women in the case died of ovarian cancer, according to the plaintiffs—six before trial, and five since the trial ended.
On appeal, Johnson & Johnson argued that personal jurisdiction doomed the claims of the 20 non-Missouri plaintiffs under the U.S. Supreme Court’s 2017 decision in Bristol-Myers Squibb v. Superior Court of California. In Bristol-Myers, the Supreme Court found that plaintiffs who sued over injuries attributed to blood thinner Plavix had failed to establish specific jurisdiction because there wasn’t enough of a link between their claims and California, where they brought their case.
The plaintiffs attempted to establish jurisdiction by presenting evidence of a Missouri talc supplier, Pharma Tech Industries, which served as a distributor to Johnson & Johnson. In Tuesday’s opinion, the panel upheld the verdict as to the 15 non-Missouri plaintiffs who used a Shower to Shower product called Shimmer, manufactured at Pharma Tech’s Missouri plant, against Johnson & Johnson Consumer Inc., the unit of Johnson & Johnson that contracted with Pharma Tech.
“JJCI’s activities with Pharma Tech Industries firmly connect JJCI’s activities in Missouri to the specific claims of the non-resident plaintiffs and thus provide an adequate basis to exercise specific jurisdiction over JJCI,” the appeals court opinion says.
But it did not upheld those same awards as to Johnson & Johnson, the parent corporation.
“When you put all that together, what that means is that the $500 million in actual damages for those 20 women is upheld by the court of appeal,” Lanier said. “We can collect all of that from the subsidiary. We could choose to collect up to $125 million from the parent company, but the total actual damages of $500 million are collectible and upheld.”
In all other respects, the appeals court affirmed the verdict.
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