J&J urges appeals court not to reinstate $417M talc verdict

Johnson & Johnson’s attorneys tried to convince an appeals court Tuesday that there was no evidence its talc products caused a 63-year-old woman’s cancer, and that a trial judge’s reversal of a $417 million verdict should be upheld.

Eva Echeverria was awarded the $417 million in 2017 against the pharmaceutical company. The Los Angeles jury found that J&J failed to warn consumers about the risks associated with its talc products, which Echeverria used for more than 40 years and blamed for her ovarian cancer. Echeverria died a month after the verdict was rendered. Lloyd et. al. v. Johnson & Johnson BC628228 (L.A. Super. Ct., filed July 25, 2016)

Superior Court Judge Maren E. Nelson overturned the jury’s verdict and granted J&J’s motions for new trial and judgment notwithstanding the verdict. The judge rejected the jury’s findings as excessive and based on insufficient evidence. The jury wrongfully relied on misleading testimony from a key plaintiffs’ witness — Echeverria’s treating doctor Dr. Annie Yessaian, Nelson said.

Plaintiffs counsel Kevin F. Calcagnie of Robinson Calcagnie told the 2nd District Court of Appeal Tuesday that Yessaian rightfully concluded talc was more probably than not the cause of Echeverria’s cancer, and had she not repeatedly used J&J’s powder, she wouldn’t have developed cancer.

J&J attorney Mark R. Yohalem of Munger, Tolles & Olson LLP said there was no substantial evidence talc causes cancer. The specific causation lacked evidence, given the consensus of the science community and Yessaian’s testimony, said Yohalem. Yessaian only considered talc as the proposed cause of Echeverria’s cancer, and refused to consider other risk factors, such as obesity, child birth or her ovulatory cycle, Yohalem noted.

The appeal panel was comprised of Judges Rashida A. Adams, Luis A. Lavin and Anne H. Egerton. The panel has 60 days to issue a ruling.