Appeals Courts Vacate Half a Billion in Verdicts Against Johnson & Johnson

Johnson & Johnson (J&J) has successfully challenged two talc verdicts and has mitigated nearly $500 million in damages in less than a week. The largest verdict to date, the $417 million  Echevarria verdict, was reversed and a new trial has been ordered. This decision comes at the heels of J&J convincing a St. Louis appeals court to vacate a separate $72 million verdict.

Superior Court Judge Maren Nelson concluded that the evidence presented during Echevaria’s trial didn’t support the large verdict.  Judge Nelson wrote that “reviewing all of the evidence in the light most favorable to Echevarria, the best that can be said is that that there was (and is) an ongoing debate in the scientific and medical community about whether talc more probably that not causes ovarian cancer and thus giving a duty to warn.”

The judge found that a lack of sufficient expert testimony on specific causation linking talcum powder use to the plaintiff’s cancer was a major reason for the decision to overturn the verdict. The only physician who testified regarding the specific causation of the plaintiff’s cancer was her treating physician. According to the order, the appeals judge found that the plaintiff’s physician did not provide enough evidence to “rule in” talc as the specific cause of the plaintiff’s cancer, and that the doctor’s attempts to rule out other potential causes amounted to speculation.

Overall, the judge found there was “a lack of any proper testimony as to specific causation,” and that was enough to set aside the verdict. Judge Nelson also found that Echeverria’s lawyers improperly used evidence about J&J’s lobbying efforts toward national and international agencies that regulate carcinogens, saying the company sought to “prevent regulation.”

Another part of the judge’s reasoning tackled Johnson & Johnson’s corporate structure. Johnson’s Baby Powder is made by Johnson & Johnson Consumer Inc., a wholly owned subsidiary of J&J. The judge held that the parent company couldn’t be held responsible because it didn’t manufacture or market the product, and Echeverria failed to present evidence to show that J&J was responsible for its subsidiary.

The judge also took exception with the jury’s damages calculations after taking into account affidavits signed by two jurors who found for the defense, which said that pro-plaintiff jurors agreed to increase compensation after considering that taxes, appeal costs, and expenses would be taken out of Echeverria’s compensation.

Finally, the judge found that punitive damages, which constituted the majority of the damages, were unwarranted.

This decision obviously represents a significant victory for J&J, which continues to face thousands of other claims and continues to appear willing to fight case by case.  It also should be viewed as a victory by all those who have been concerned about the willingness of other courts to permit these claims to proceed in the absence of sufficient and reliable scientific causation proofs.

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