Products Liability Law Daily Wrap Up, EXPERT EVIDENCE—HOUSEHOLD PRODUCTS—Ga. App.: New-trial order against Johnson & Johnson upheld in baby powder induced ovarian cancer case, (Jun 4, 2026)

By Pankhuri Bhatnagar, B.A. LL.B.

A defense verdict was not warranted because the parties presented conflicting expert testimony on whether asbestos-contaminated talc can cause ovarian cancer.

In an asbestos exposure action brought against two baby powder makers by the estate of a woman who died from ovarian cancer allegedly caused by prolonged use of the talc, the Georgia Court of Appeals affirmed an order granting a new trial. The court found that the manufacturers waived their constitutional challenge to Georgia’s appellate review statute by failing to raise it in their interlocutory appeal application, that the lower court applied the correct legal standard, and that the trial court’s order satisfied Ga. Code Ann. § 5-5-51 by expressly finding that the verdict was contrary to the evidence and the principles of justice and equity (Johnson & Johnson v. Monroe, A26A0410 (Ga. App. June 1, 2026)).

Background. A woman allegedly used Johnson’s Baby Powder for many years and later developed terminal ovarian cancer. Following her death, her daughter/estate sued Johnson & Johnson and Johnson & Johnson Consumer Inc., alleging that asbestos in the baby powder caused her cancer. After a lengthy trial in 2021, the jury returned a defense verdict. The estate moved for a new trial under Ga. Code Ann. §§ 5-5-20 and 5-5-21. The trial court granted the motion, finding that the verdict was contrary to the evidence and the principles of justice and equity and decidedly and strongly against the weight of the evidence. The manufacturers obtained interlocutory review and appealed.

Constitutional challenge. The manufacturers argued that Ga. Code Ann. § 5-5-50, which limits appellate review of a first grant of a new trial, violated their constitutional right to a jury trial. The court declined to consider the argument, noting that a constitutional challenge must be raised at the earliest opportunity. State v. Herrera-Bustamante, 304 Ga. 259, 263 (2018). Although a challenge to an appellate procedure statute may sometimes arise for the first time on appeal, as in In the Interest of A.C., 285 Ga. 829, 832 (2009), the manufacturers failed to identify any constitutional issue in their interlocutory appeal application. Their application raised only issues concerning the new-trial order, the proper application of Ga. Code Ann. §§ 5-5-20 and 5-5-21, and whether the evidence demanded a defense verdict. Discretionary review is “necessarily limited to the errors actually enumerated in the application.” Zekser v. Zekser, 293 Ga. 366, 369(2) (744 SE2d 698) (2013). Because the constitutional challenge was not included among the issues presented for interlocutory review, it was not timely raised and was not properly before the court. The argument therefore provided no basis for reversal.

Adequacy of new-trial order. The manufacturers next argued that the trial court failed to provide sufficient reasoning for granting a new trial and that Ga. Code Ann. § 5-5-51 required individualized findings explaining why the verdict should be set aside. The court disagreed, explaining that the section requires only that a trial court granting a new trial on discretionary grounds must set forth the reasons for exercising that discretion. The manufacturers urged the court to overrule a “similarly bare-bones new trial order” given in Jackson National Life Ins. Co. v. Snead, 231 Ga. App. 406 (1998). But that case properly clarified that an order satisfies Ga. Code Ann. § 5-5-51 when it expressly states that the verdict is unfair, unjust, contrary to the evidence, or against the weight of the evidence. Likewise, the trial court here expressly stated that it had reviewed the applicable law, the evidence, the parties’ submissions, witness credibility, witness demeanor, conflicts in the evidence, and the weight of the evidence before concluding that the verdict was contrary to the evidence and the principles of justice and equity and strongly against the weight of the evidence. Accordingly, the order complied with Ga. Code Ann. § 5-5-51.

Legal standard. Johnson & Johnson also argued that comments made by the trial judge during the hearing suggested that she applied the wrong legal standard. The court disagreed, noting that a reviewing court must presume that a trial court properly understood and exercised its discretion unless the record affirmatively shows otherwise. Wilson v. State, 302 Ga. 106, 108 (2017). Nothing in the record demonstrated that the trial court misunderstood the governing standard. This argument therefore failed.

Supporting evidence. Finally, the manufacturers argued that the trial court abused its discretion because the law and facts required the defense verdict to stand. Under Ga. Code Ann. § 5-5-50, a first grant of a new trial may be reversed only where the evidence absolutely demands the verdict rendered. Bhansali v. Moncada, 275 Ga. App. 221, 222 (2005). Johnson & Johnson asserted that judgment was warranted in its favor based on the estate’s pathologist’s testimony that he did not believe the epidemiological evidence was sufficient to establish that asbestos causes ovarian cancer, together with epidemiological studies allegedly showing no meaningful causal relationship between cosmetic talc use and ovarian cancer. However, two other experts testified that asbestos causes ovarian cancer, that the decedent’s use of Johnson’s Baby Powder caused or contributed to her cancer, and that asbestos-contaminated talc is a known human carcinogen. Construing the evidence and all reasonable inferences in favor of the estate, the court held that the evidence did not demand a defense verdict. Because conflicting expert testimony existed on causation, the trial court did not abuse its discretion in granting a new trial.

The case is No. A26A0410.

Judge: Rickman, B.

Attorneys: Colin Kamrath Kelly (Shook, Hardy & Bacon LLP) and Jason Stephen Allard (Greenberg Traurig LLP) for Johnson & Johnson and Johnson & Johnson Consumer Inc. Roy E. Barnes (Barnes Law Group) for Charvette E. Monroe.

Companies: Johnson & Johnson; Johnson & Johnson Consumer Inc.

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