Last month, Johnson & Johnson petitioned the U.S. Supreme Court to take up a case tried in July 2018, in Missouri, in which 22 women were initially awarded $4.7 billion for damages allegedly caused by applying J&J talc baby powder. That award was later reduced in June 2020 by a Missouri State Appeals Court to $2.1 billion. (Two of the 22 plaintiffs were dismissed.)
In response to the petition by J&J, the plaintiffs, which all developed ovarian cancer, are urging the nation’s high court to let the award stand.
In a brief filed last week, the plaintiff’s attorneys, says Reuters, asked the high court to reject J&J’s arguments that the consolidation of 22 cases for trial in a Missouri state court violated its due process rights.
According to the brief, the attorneys said, “Consolidation in tort cases is commonplace, an essential practice for preserving the resources of courts and parties when common issues – such as the product’s safety and the defendant’s knowledge of its danger – predominate, as they did here.”
That by bringing in 17 of the 22 plaintiffs from out of state, and by the Missouri Circuit Court’s decision to consolidate the cases, the jury became confused and prejudiced, argued J&J. In its petition to The Supreme Court, J&J argued, “This was a fundamentally flawed trial in which numerous legal errors allowed a faulty presentation of the facts, resulting in an incorrect verdict and arbitrary and disproportionate damages.”
In November 2020, the Missouri Supreme Court refused to review the $2.1 billion verdict, hence J&J’s petition to the U.S. Supreme Court in early March.
J&J argues that each of the plaintiffs were erroneously awarded the same compensatory damage—$25 million—even though each woman’s circumstance and level of injury was unique.
However, plaintiffs’ attorneys dismissed the accusation that this was evidence of prejudice.
“Given each respondent’s similar pain and suffering and a likely future death from ovarian cancer, the jury had ample reason to conclude that one respondent’s suffering was not worth less than another’s,” they said.
J&J has also argued that the punitive damages were excessive and disproportionate. In response, plaintiffs’ attorneys said the punitive damages accurately reflect the “extraordinary reprehensibility” of the company’s conduct, which has been well-documented in a Reuters investigation, which revealed that for decades J&J was aware that its talc powder could become contaminated with asbestos, a known carcinogen.
In May 2020, J&J announced it would no longer sell talc-based baby powder in North America. The company is facing 25,000 talc powder lawsuits. It has settled approximately 1,000 talc lawsuits for $100 million. In a regulatory filing, the company disclosed it was setting aside nearly $4 billion for litigation, most of which will cover talc suits.