Products Liability Law Daily Wrap Up, CAUSATION—HOUSEHOLD PRODUCTS—Cal. Super.: $417M verdict against Johnson & Johnson in talcum powder case overturned, (Oct 25, 2017)

By Susan Engstrom

A $417-million jury verdict against Johnson & Johnson in a case alleging that its talcum powder products caused a consumer’s ovarian cancer was overturned by a California superior court. The company was granted a new trial on the grounds of insufficient causation evidence, errors in law at trial, jury misconduct, and excessive compensatory and punitive damages (Johnson & Johnson Talcum Powder Cases (Lloyd v. Johnson & Johnson (Echeverria)), October 20, 2017, Nelson, M.).

The consumer testified that she had used Johnson’s® Baby Powder daily on her perineal area from 1965 until 2016. She used the manufacturer’s other talc-containing product, Shower to Shower®, less frequently. In 2007, she was diagnosed with high-grade serious ovarian cancer. She filed suit against Johnson & Johnson (J&J) and Johnson & Johnson Consumer, Inc. (JJCI), asserting that she developed ovarian cancer as a result of using the defendants’ talc-containing products. JJCI manufactures and sells Johnson’s Baby Powder and Shower to Shower, and is a wholly owned subsidiary of J&J. The case was tried on a theory of negligent failure to warn.

The evidence at trial showed that since at least 1982, there has been an ongoing debate in the scientific community as to whether talc usage may cause ovarian cancer or whether the science supported a finding that there was only a statistical association between talc use and cancer. The jury was called on to answer this complex scientific question. The jury instructions required the consumer to show that each defendant manufactured and sold Johnson’s Baby Powder and Shower to Shower to her, and that prior to 2007, the products were dangerous or likely to be dangerous when used in a reasonably foreseeable manner, giving rise to a duty to warn. The jury also was instructed that the consumer must show that exposure to talc was a substantial factor in causing her illness by showing through expert testimony that there was a reasonable medical probability that talc causes ovarian cancer and a reasonable medical probability that it was a substantial factor in causing her cancer.

Verdict. The jury found in favor of the consumer, awarding $68 million in noneconomic damages from J&J and $2 million in noneconomic damages from JJCI [see Products Liability Law Daily’s August 22, 2017 analysis]. The jury assessed $340 million in punitive damages against J&J and $7 million against JJCI. The companies moved for a new trial or for judgment notwithstanding the verdict (JNOV).

JNOV. The court granted the companies’ JNOV motion, finding that the consumer failed to meet her burden of proof to show that her use of Johnson’s Baby Powder and Shower to Shower was the probable cause of her ovarian cancer. In addition, there was no evidence that J&J manufactured these products after 1967 or that it knew prior to 1967 that talc more probably than not caused ovarian cancer, such that any duty to warn of that fact arose at that time. The court next turned to the defendants’ motion for a new trial.

Causation evidence. The court found that the consumer’s evidence of both specific and general causation was insufficient to support the verdict. For example, the consumer’s treating physician, who was the only expert called on specific causation, failed to "rule in" talc as a probable cause of the consumer’s disease and failed to "rule out" other risk factors such as age and number of ovulatory cycles. Moreover, the physician did not consider all available epidemiology and apply it to the facts relative to the consumer except when it favored the consumer. Given the lack of anything other than a hypothesis about causation and the nature of the epidemiological evidence presented, the defendants were entitled to a new trial.

Errors in law. The court also determined that because the physician’s testimony was insufficient to establish specific causation, it should have been stricken. In addition, the court should not have admitted an article stating that there had been concern about talc as an ovarian carcinogen in the medical literature for 50 years and that condom makers removed talc from condoms in the 1990s for that reason. Counsel’s reference to the article was prejudicial and undermined a limiting instruction. Also prejudicial was the consumer’s counsel’s disregard of the limitations on the use of lobbying evidence. These errors provided a basis for a new trial as well.

Jury misconduct. In addition, the jury improperly considered attorney fees and taxes in determining the consumer’s noneconomic damages. This was serious misconduct, giving rise to a presumption of prejudice and requiring a new trial.

Excessive damages. Given the consumer’s testimony, the court was not persuaded that the compensatory damages award against JJCI could be deemed excessive if liability was established. Thus, JJCI’s motion for a new trial on grounds of excessive compensatory damages was denied. As to J&J, however, the court was convinced that the jury should have reached a different verdict. As mentioned previously, there was no evidence that J&J manufactured baby powder after 1967, and there was no evidence that it manufactured Shower to Shower. Nonetheless, the jury apportioned 97 percent of the damages to J&J. Given the misconduct of the jury in considering matters that were not to be included, combined with the other reasons why a new trial was required, a remittitur was not appropriate. With respect to J&J, therefore, a new trial was required on the basis of excessive noneconomic damages.

Finally, the court concluded that the evidence was insufficient to uphold a punitive damages award of any kind. Thus, a new trial was required as to both defendants on that basis.

The case is No. BC628228 (JCCP No. 4872).

Attorneys: Mark P. Robinson, Jr. (Robinson Calcagnie, Inc.) for Echeverria Eva and Lloyd Charmaine. Bart H. Williams (Proskauer Rose LLP) and Michael C. Zellers (Tucker Ellis LLP) for Johnson & Johnson and Johnson & Johnson Consumer Inc. f/k/a Johnson & Johnson Consumer Co., Inc.

Companies: Johnson & Johnson; Johnson & Johnson Consumer Inc. f/k/a Johnson & Johnson Consumer Co., Inc.

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