Plaintiffs lawyers who got a $417 million talcum powder verdict last year said the Los Angeles judge who vacated their award did an “about-face” on their experts, according to an appeal brief filed on Wednesday.
The brief, filed before California’s 2nd District Court of Appeal, said Los Angeles Superior Court Judge Maren Nelson allowed the plaintiffs’ expert testimony before and during trial but, after the Aug. 21 verdict, found there was insufficient evidence linking Johnson & Johnson’s baby powder to the plaintiff’s ovarian cancer. Plaintiffs lawyer want the appeals court to reinstate the verdict and reverse Nelson’s order granting Johnson & Johnson’s motions for judgment notwithstanding the verdict and a new trial.
“The trial court did a complete about-face,” wrote Mark Robinson, who represents the plaintiff, Eva Echeverria. “When Defendants moved for nonsuit and for directed verdict, the court had held there was sufficient evidence to go to the jury on whether both J&J and JJCCI [Johnson & Johnson Consumer Companies Inc.] acted with conscious disregard for safety in failing to warn Ms. Echeverria about the risk of ovarian cancer, but after the verdict, the court reached the opposite conclusion.”
In particular, Nelson allowed Echeverria’s gynecologist to testify about how her patient’s decades of talcum powder use was the “most probable” cause of her ovarian cancer, but in a “post-trial turnabout,” the judge found the doctor’s opinion insufficient to prove causation.
Robinson, of Robinson Calcagnie in Newport Beach, California, and Johnson & Johnson spokeswoman Carol Goodrich each declined to comment.
Jurors awarded Echeverria, who was diagnosed with ovarian cancer in 2007, $70 million in noneconomic damages and $347 million in punitive damages. They found that Johnson & Johnson failed to warn about the safety risks of its baby powder.
The verdict was the first talcum powder award to come out of California state court and the largest until July 13, when a St. Louis jury awarded nearly $4.7 billion to 22 women and their families. More than 8,000 lawsuits allege Johnson & Johnson’s talcum powder products caused women to get ovarian cancer; Nelson is overseeing 430 lawsuits in California state courts.
In tossing the verdict on Oct. 20, Nelson also found “serious misconduct” on the part of the jury when it included attorney fees and taxes in its calculation of compensatory damages. She also found the damages were excessive. At a hearing after the verdict, Nelson had raised several questions about whether some of the documents on which plaintiff’s attorneys relied pertained to Johnson & Johnson or Johnson & Johnson Consumer Companies Inc., the subsidiary that manufactured its talc products after 1967. The distinction is important because the jury found Johnson & Johnson liable for $408 million of the verdict, while its subsidiary, another named defendant in the case, faced $9 million.
“The evidence showed that the Defendants were aware of the probable dangerous consequences of their conduct, and that they were exposing thousands of women to ovarian cancer, yet they deliberately failed to warn in order to protect their flagship product,” Robinson wrote. “The Defendants knew of the danger and had a duty to warn, and their deliberate failure to do so constitutes malice.”
Nelson had allowed Echeverria’s case to go to trial first because of her prognosis. (Echeverria died after trial, leaving her daughter, Elisha Echeverria, to represent her on appeal.) Nelson has said she wants to “tee up some bellwether trials” for 2019.
New Jersey-based Johnson & Johnson, meanwhile, filed a motion last month to quash about 100 cases in California state courts by out-of-state plaintiffs based on the U.S. Supreme Court’s ruling in Bristol-Myers Squibb v. Superior Court of California last year. Johnson & Johnson lawyer G. Gregg Webb, a San Francisco partner at Shook, Hardy & Bacon told Nelson at a May 3 hearing that another 600 plaintiffs voluntarily dismissed cases in California in light of Bristol-Myers. Nelson has scheduled a Sept. 21 hearing on the motion.