A Talcum Powder Tort Blowout

A California judge tosses out a jury verdict based on little evidence.

 
 

Johnson's baby powder remains stocked at a supermarket shelf in Alhambra, Calif., Aug. 22.
Johnson’s baby powder remains stocked at a supermarket shelf in Alhambra, Calif., Aug. 22. PHOTO: FREDERIC J. BROWN/AFP/GETTY IMAGES
 

Plaintiff lawyers are hoping to make talc torts the next asbestos racket, but their dreams of mega-payoffs may have been shattered last week when a judge in California tossed a $417 million jury award against Johnson & Johnson .

The case was brought by a 63-year-old woman with advanced ovarian cancer who had used baby powder for more than 40 years. She claimed the talc caused her cancer and that J&J knew the product was carcinogenic but failed to warn consumers. A Los Angeles jury in August awarded the plaintiff $70 million in compensatory and $347 million in punitive damages.

Johnson & Johnson appealed the verdict and requested a new trial, which California superior court judge Maren Nelson granted after ripping apart the plaintiff lawyers’ arguments and evidence. 

For instance, trial lawyers tried to foist liability on Johnson & Johnson even though its subsidiary JJCI had manufactured baby powder after 1967. The judge noted that “the law is well established that ordinarily a holding company cannot be held liable for the acts of its wholly owned subsidiary” absent evidence that the consumer unit was an agent of the company, which the lawyers did not show.

The judge also deemed the plaintiff’s evidence lacking. No causal link has been established between talc and ovarian cancer, as even one plaintiff expert testified. Lawyers sought support from an epidemiologist, but the judge noted that the “expert did not properly employ the methodology she espoused.”

While the plaintiff attorneys then sought “to argue that epidemiological studies are not required to establish causation,” the judge determined this is “not persuasive given [the studies] were utilized for such a purpose.” The judge also dismissed the plaintiff’s unscientific contention that the condom industry’s discontinuation of talc after 1994 demonstrated its carcinogenic risk.

“The documents and testimony, granting all evidence in favor of [the plaintiff] do not support liability . . . much less support a finding of clear and convincing evidence that a punitive damage was appropriate,” the judge concluded, adding that the “compensatory verdict is plainly excessive.”

After the Los Angeles jury verdict, plaintiff attorneys had been anticipating a potential global settlement for talc claims that could be worth tens of billions of dollars. But they may get little or nothing if this is all the evidence they have.

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