Retired teacher who won $12M in talc lawsuit dies, canceling punitive damages phase

A retired schoolteacher who won $12 million against Johnson & Johnson in a talc lawsuit has died, prompting the cancellation of a punitive damages phase of the case on the eve of trial.

In June, Alameda County Superior Court Judge Frank Roesch granted a partial retrial on evidence of malice and punitive damages in the case involving Patricia Schmitz, who sued J&J in connection with her fatal cancer she alleged was caused by the company's talc products. Schmitz v. Johnson & Johnson et al., RG18923615 (Alameda County Super. Ct., filed Oct. 5, 2018).

Jury selection was underway when Schmitz developed a large tumor in her heart. Fearing she would risk losing the $12 million judgment if she didn't survive but proceeded with the punitive trial, Schmitz withdrew the pending claims. Roesch signed off on the first phase of judgment, according to her counsel, John L. Langdoc, partner at Oakland-based Kazan, McClain, Satterley & Greenwood APLC. Denyse F. Clancy and Joseph D. Satterley also represented Schmitz.

"It was a potential risk to not have the first phase of judgment entered if she were to pass, so we were forced to dismiss the punitive claims, due to the arcane nature of California law that wouldn't be an issue in most other states," Langdoc said Tuesday.

Spokesperson Kim Montagnino said Tuesday that Johnson & Johnson would appeal the verdict.

According to Langdoc, Schmitz would've lost her $12 million had she died in between the first and second phases of trial. He cited Cadlo v. Metalclad Insulation Corporation, 151 Cal. App. 4th 1311 (Cal. Ct. App. June 11, 2007).

In Cadlo, the plaintiff Anthony Cadlo died from asbestos-related injuries in between the verdict and the entry of judgment, but the verdict resolved all of his issues, allowing him to obtain final judgment on the jury verdict prior to his death had it been entered at that time.

Cadlo died March 24, 2005. Judgment was entered 11 days after his death. The trial court vacated judgment and entered a retroactive nunc pro tunc judgment.

Schmitz couldn't do that because her verdict didn't resolve all her claims.

Deborah R. Hensler, a professor and director of the Law and Policy Lab at Stanford Law School, said many people are surprised to discover that compensation to an injured person's family is limited by comparison to what the victim would receive if she were injured but still alive at the time of trial or settlement.

"There are good policy reasons associated with this -- e.g. the injured person may need years-long care -- but the effect is that the defendant pays less if its behavior killed or contributed to the death of a person than if it simply injured that person," Hensler explained in an email. "This may make economic sense, but to many including victims themselves, it seems unjust. And it can put plaintiffs like Ms. Schmitz in a very difficult position."