On appeal, the Court has ruled in favor of Johnson & Johnson (“J&J”), overturning large financial judgments awarded to plaintiffs who alleged that the company’s baby power and shower to shower powder products caused their ovarian cancer. One award was to a California woman for $417 million, and another was to an Alabama woman for $72 million. At least 4,800 separate cases are pending against the company in courtrooms across the country. Several are based in California; Echeverria’s was the first to be brought to trial.
On August 21, 2017, we reported that in Lloyd, et al. v. Johnson & Johnson, et al. (Los Angeles Superior Court Case No. BC628228) a jury sided with Plaintiff and awarded $70 million in compensatory damages and $347 million in punitive damages. One of the Plaintiffs, Eva Echeverria (“Echeverria”), contended that she used J&J’s baby powder and other absorbent body powder from the company for more than 50 years; which was a substantial factor in causing her development of ovarian cancer.
On October 20, 2017, Los Angeles Superior Court Judge Maren Nelson (“Judge Nelson”) reversed the jury’s ruling and granted J&J’s motions for a new trial. Judge Nelson said there was an “insufficiency of the evidence as to the causation as to both defendants” and ruled that there was error in law occurring at trial and misconduct of the jury, which led to excessive damages. Echeverria’s attorney, Mark Robinson of Robinson Calcagnie Inc., said Nelson’s decision will be immediately appealed.
The ruling marks a second win in less than a week for J&J after a Missouri appellate court overturned a $72 million jury verdict handed down in February 2016. That case involved another lifelong talc user who had lived in Alabama and died four months before the trial. The Missouri Court of Appeals Eastern District ruled that the case shouldn’t have been tried in St. Louis, as plaintiff Jacqueline Fox claims did not “arise out of J&J’s activities in Missouri.” The family is considering an appeal.
The science on talc and its relation to ovarian cancer has produced mixed results over the years. Judge Nelson describes it as “an ongoing debate in the scientific and medical community” as to whether talc usage may cause ovarian cancer. On one hand the International Agency for Research on Cancer, part of the World Health Organization, classifies the genital use of talc-based body powder as “possibly carcinogenic to humans.”
While on the other hand the US Centers for Disease Control and Prevention does not list talc as an ovarian cancer risk. Some studies have seen a modest risk. The US National Toxicology Program, part of the US Department of Health and Human Services, has not fully reviewed talc as a possible carcinogen, according to the American Cancer Society, which says it isn’t clear whether the products increase a person’s cancer risk.
Some talc-based powders carry a warning label that mentions the possible risk of ovarian cancer after frequent application in the female genital area. Several talc-based powders, including J&J’s products, do not.
Judge Nelson agreed with the defense that plaintiff witness Annie Yessaian incorrectly concluded, based on four scientific studies, that perineal use of talc showed a statistically significant increase of ovarian cancer. Plaintiffs argued that a risk factor of 1.3 was a sufficient link to prove cancer causation. Judge Nelson disagreed, ruling that a ratio of 1.3 is “well below” the standard necessary to show that talc more likely than not causes cancer.
Judge Nelson also ruled the jury’s considerations of taxes and fees in the verdict were improper.
At issue throughout trial and during post-trial motion arguments was whether J&J executives knew about the hazard internally and failed to protect the public. The defense said it was not known that talc was at least likely dangerous when Echeverria was diagnosed with cancer in 2007, pointing to a plaintiff epidemiological witness who said the same. The witness said no studies would show causality.
This led Judge Nelson to question the plaintiff about whether J&J was liable for punitive damages if it was not the manufacturer of the talc after 1967. That liability belonged to the holding company, J&J Consumer Inc., which was held responsible for $9 million of the judgement. In the end the judge said the plaintiff did not put on any evidence of alter-ego liability with regard to the holding company.