Judge overturns $417M jury verdict in talc cancer trial

LOS ANGELES — A Los Angeles judge has rejected a bellwether jury’s $417 million baby powder liability verdict against Johnson & Johnson and granted the company a new trial.

Superior Court Judge Maren Nelson granted Proskauer Rose LLP defense motions for new trial and judgment notwithstanding the verdict in a 70-page tentative ruling issued late Friday that largely rejected the jury’s findings as excessive and based on insufficient evidence.

In siding with the defense, Nelson agreed that the jury wrongly determined malice based on internal company documents, engaged in misconduct, and relied on misleading testimony from a key plaintiff’s witness during the August trial. Lloyd v. Johnson & Johnson, BC628228 (L.A. Super. Ct., filed July 25, 2016).

“In short, there was simply no evidence that Johnson & Johnson knew in the 1965-67 time period that talc more likely than not caused ovarian cancer, giving rise to a duty to warn, much less that a managing agent acted with requisite malice in failing to give the warning,” Maren wrote in the ruling delivered eight days after post-trial arguments.

The jury delivered $70 million in compensatory damages and $347 million in punitive damages to plaintiff Eva Echeverria, who alleged chronic use of the company’s baby powder over 41 years led her to develop ovarian cancer. She died a couple of weeks after conclusion of the trial, which delivered more in damages than the previous four of five jury verdicts against the company in Missouri state courts.

“Reviewing all the evidence in the light most favorable to Echeverria the best that can be said is that there was (and is) an on-going debate in the scientific and medical community about whether talc more probably than not causes ovarian cancer and thus giving rise to a duty to warn,” Nelson ruled.

The ruling marks a second win for Johnson & Johnson after a Missouri appellate court overturned a $72 million jury verdict.

In a statement, lead Proskauer Rose trial counsel Bart Williams said the judge’s ruling echoes that of a New Jersey judge who threw out scientific evidence at the eve of trial.

“We are sensitive to the tragedy of Ms. Echeverria’s death from ovarian cancer. We feel for anyone who has faced a cancer diagnosis,” Williams said in an emailed statement. “But Judge Nelson’s order is consistent with the science, research, clinical evidence and decades of studies by medical experts around the world that continue to support the safety of cosmetic talc.

The New Jersey judge, in September 2016, “ruled that the plaintiffs’ experts could not adequately support their theories that talcum powder causes ovarian cancer,” Williams said. “Both those dismissals and Judge Nelson’s order highlight the lack of credible evidence behind the plaintiffs’ claims in the talc cases.”

Echeverria’s attorney, Mark Robinson of Robinson Calcagnie Inc., said Nelson’s decision will be immediately appealed.

“A jury of Ms. Echeverria’s peers found the Johnson & Johnson defendants liable. We will ask the appellate court to uphold this jury’s verdict. We will continue to fight on behalf of all women who have been impacted by this dangerous product,” Robinson said in an email.

Nelson agreed with the defense that plaintiff witness Annie Yessaian incorrectly ruled, based on four scientific studies, that perineal use of talc showed a statistically significant increase of ovarian cancer. “She ignored specific data when ruling talc in,” Williams told the judge during arguments this month.

Williams contended that studies showing a risk factor of two — which means below 50 percent — tend to actually disprove cancer causation. Plaintiffs said a relative risk factor of 1.3 was sufficient for a link.

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. “The court is persuaded that Yessaian’s opinion is insufficient as a matter of law to support the verdict,” Nelson ruled.

Nelson also ruled the jury’s considerations of taxes and fees in the verdict was improper.

At issue throughout trial and during post-trial motion arguments was whether Johnson & Johnson executives knew about the hazard internally and failed to protect the public, as the plaintiff asserted, referencing a 1964 company memo that mentioned talc doesn’t absorb safely into the vagina.

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, Jack Siemiatycki, said no studies would show causality.

This led Nelson to question the plaintiff about whether Johnson & Johnson was liable for punitive damages if it was not the manufacturer of the talc after 1967. That liability belonged to the holding company, Johnson & Johnson Consumer Inc., which was held responsible for $9 million of the judgment.

“What relevance is its knowledge if it’s not the manufacturer? The duty to warn is the manufacturer’s duty,” Nelson said during arguments.

“Johnson & Johnson had responsibility. These documents show Johnson & Johnson kept responsibility over J&JCI,” Robinson said.

In the end, the judge said the plaintiff did not put on any evidence of alter-ego liability with regard to the holding company.