Plaintiff’s attorneys appeal overturned $417M talc verdict

Attorneys representing the plaintiff in an overturned $417 million talc verdict filed a petition with the state Supreme Court Monday, arguing the Court of Appeal misread case law over Johnson & Johnson's duty to warn.

The bellwether case went from a $417 million jury verdict to being overturned by the judge on the grounds of insufficient science. This summer the 2nd District Court of Appeal mostly sided with Johnson & Johnson, stating the parent company, which stopped making the powder in 1967, could not held liable for failure to warn. However, the subsidiary that manufactured the product -- Johnson & Johnson Consumer Inc. -- had a duty to warn about an alleged risk and was ordered a new trial with regard to compensatory damages, which was previously $2 million.

"We respectfully disagree with the Court of Appeal's opinion in that regard and believe the California Supreme Court will find that the trial court abused that discretion by weighing evidence and making credibility determinations based upon what the Court of Appeal's opinion shows were errors of law and mistaken assumptions of fact unsubstantiated by the record," wrote plaintiff's attorney Mark P. Robinson of Robinson Calcagnie Inc., who represented deceased plaintiff Eva Echeverria.

The petition hopes the state high court will revisit T.H. v. Novartis, a 2017 state Supreme Court case that was decided after the talc verdict. Robinson believes the appellate court applied a narrow, incorrect reading regarding duty to warn.

"In addition to these straightforward conclusions that there was substantial evidence supporting the findings of a duty to warn, a breach of that duty by JJCI, that genital talc use is likely to be or probably dangerous, and that it caused Ms. Echeverria's cancer, the Court of Appeal rejected numerous arguments made by Johnson & Johnson which apply to virtually any talc case," wrote Robinson.

The company's defense attorneys at Proskauer Rose LLP said there is no scientific basis showing a cancer link between the talc and ovarian cancer. Los Angeles Superior Court Judge Maren E. Nelson agreed with the company.

Robinson argued that his client developed ovarian cancer as a result of repeated perineal talc use.

-- Justin Kloczko