Defense attorneys defend overturned $417M talc verdict in appeal

Opposing briefs on the appeal of an overturned $417 million jury verdict against Johnson & Johnson over its baby powder's alleged role in the plaintiff's ovarian cancer have been filed from both sides, setting the stage for the next act in a national saga over whether the product is toxic.

Last year in a bellwether trial, a Los Angeles County jury awarded the verdict to plaintiff Eva Echeverria, who died a month later. Echeverria claimed that her perineal use of talcum powder over four decades led to her ovarian cancer.

In October 2017, Superior Court Judge Marin Nelson overturned the verdict and ordered a new trial. In her decision, Nelson wrote that the verdict was based on shaky science and that the plaintiff failed to show direct causation.

Attorneys representing Elisha Echeverria, Eva's daughter who was substituted in as plaintiff after her mother's death, appealed the ruling.

"This post-trial turnabout was an abuse of discretion in that it was premised upon not only a misinterpretation of controlling law, but also on factual findings that are demonstrably unsupported and contradicted by the record," wrote Mark P. Robinson of Robinson Calcagnie Inc. for the plaintiff in a July 18 appeal brief.

ROBINSON

"The trial court correctly concluded that plaintiff failed to introduce substantial evidence to establish 'specific causation' -- i.e., that talc was the likely cause of Echeverria's ovarian cancer," wrote Mark R. Yohalem of Munger, Tolles & Olsen LLP in his defense brief filed Nov. 20 asking that the trial court ruling be upheld.

The key testimony cited in Nelson's ruling was that of plaintiff's expert Dr. Annie Yessaian. The judge agreed with the defense that Yessaian incorrectly concluded from four studies that the perineal use of talc showed a statistically significant increase in ovarian cancer.

Bart H. Williams of Proskauer Rose LLP, arguing for the defense, had claimed the expert ignored relevant data when determining the link.

"Yessaian's testimony wholly failed to exclude alternative causes of Echeverria's ovarian cancer," Yohalem wrote in the brief. "The undisputed evidence was that most ovarian cancer is idiopathic, i.e., caused by as-yet-unknown factors. The trial court held that Yessaian's testimony provided no basis -- other than speculation -- for concluding that Echeverria's cancer was not itself idiopathic."

Robinson argued that Nelson's ruling misunderstood both Yessaian's testimony and the legal standard the testimony needed to satisfy.

"Dr. Yessaian opined that talc more probably than not caused Ms. Echeverria's ovarian cancer, and that it is more probable than not that Ms. Echeverria would not have developed the cancer but for her use of talc," he wrote.

Nelson also questioned punitive damages against Johnson & Johnson on the basis that company executives allegedly knew talc powder caused cancer and did not warn the public. The plaintiffs cited a 1964 memo that mentioned talc failing to absorb safely into the vagina.

NELSON

The defense contended that talc was not known to be at least likely dangerous when Echeverria was diagnosed in 2007. They pointed to a plaintiff's witness who said no studies had shown causality.

"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 warning," wrote Nelson after post-trial arguments.

The original verdict included $70 million in compensatory damages and $347 million in punitive damages. Echeverria v. Johnson & Johnson and Johnson & Johnson Consumer Inc., B286283 (2nd AppCal. App. 2nd Dist., Dec. 18, 2017).

After Nelson's decision, Williams said the ruling echoed that of a New Jersey judge who threw out plaintiffs' scientific evidence on the eve of trial in a similar case.

In September 2016, that judge wrote that the plaintiffs' experts could not adequately support their theories tying talcum powder and ovarian cancer, according to Williams.

In this case, Johnson & Johnson is fighting to preserve another win after two Missouri verdicts were previously overturned.