An image used by plaintiffs counsel alleging J&J’s talcum powder led to ovarian cancer. J&J said the image “served one purpose only: to inflame the jury.”

 

Johnson & Johnson’s refusal to warn consumers its baby powder might cause ovarian cancer, despite four decades of knowing about the risk, created a “perfect storm of highly reprehensible conduct” that warranted a $4.7 billion verdict in Missouri.

That’s according to the plaintiffs’ attorneys, who filed court documents Wednesday seeking to uphold the July 13 award, the largest verdict over talcum powder. Eric Holland, partner at Holland Law Firm in St. Louis, noted in his opposition to a motion for new trial on damages that while rare, “all factors support a large punitive damage award.”

“Defendants knew there was asbestos in what they marketed as ‘baby’ powder, but they deliberately targeted mothers and women in general with advertising misrepresenting the safety of their talc product,” Holland wrote.

Johnson & Johnson has moved to toss the award, calling it unconstitutional and excessive. It also alleges misconduct against the plaintiffs’ lead trial counsel, Mark Lanier. Among other things, the company claims Lanier referenced stillborn babies in his opening statement, changed words on his website in midtrial and showed the jury a drawing of a woman pushed over a ledge into ovarian cancer by Johnson & Johnson’s asbestos-containing baby powder.

“It is hard to conjure a more emblematic example of inflammatory and prejudicial statements at trial than statements about dead babies,” wrote Johnson & Johnson attorney Beth Bauer, a partner at HeplerBroom in Edwardsville, Illinois, in a Sept. 20 motion for a new trial. “The image of defendants pushing a woman off a cliff served one purpose only: to inflame the jury.”

Bauer was joined in the motions by Orrick, Herrington & Sutcliffe and Shook, Hardy & Bacon. Johnson & Johnson also filed a motion for a new trial on damages and a motion for a judgment notwithstanding the verdict.

It’s not the first time Johnson & Johnson has gone head-to-head against Lanier. In April, the U.S. Court of Appeals for the Fifth Circuit reversed a $502 million hip implant award against its subsidiary, DePuy Orthopaedics, in part due to Lanier’s “unequivocally deceptive” conduct.

“Such deceptive tactics have no place in a courtroom and further warrant new trials of each plaintiff family’s claims,” Bauer wrote.

Lanier, in the plaintiffs’ responses on Wednesday, acknowledged he mistakenly referred to stillborn babies in his opening statement but did so only in reference to a study, not to allude that Johnson & Johnson’s baby powder caused their deaths. The plaintiffs’ lawyers also defended the drawing, over which Johnson & Johnson never objected during trial.

“Such attacks are typical for these defendants, and they have launched them repeatedly in the media against both the court and the jury,” Holland wrote in opposing a motion for a new trial, joined by The Lanier Law Firm and Gray Ritter & Graham in St. Louis. “Defendants’ repetitive and vindictive ad hominem attacks on Mr. Lanier are a PR stunt and do not advance the litigation. Litigants who lose and disapprove of opposing counsel’s trial tactics are not for that reason entitled to a new trial.”

A St. Louis jury awarded $550 million in compensatory damages and $4.05 billion in punitive damages. The trial was the first talcum powder case for Lanier and the first ovarian cancer award in a case alleging Johnson & Johnson’s talcum powder contained asbestos, a known carcinogen.

Johnson & Johnson’s posttrial motions argued that the plaintiffs’ attorneys failed to provide sufficient evidence that its baby powder caused ovarian cancer or that it caused the disease in each individual plaintiff. They criticized the testimonies of the plaintiffs’ experts and said the plaintiffs’ attorneys misconstrued Missouri’s law on causation, an allegation opposed on Wednesday.

In its motion for a new trial on damages, Johnson & Johnson suggested that the compensatory damages be no more than $3 million per plaintiff. The company also challenged the use of a coordinated trial of 22 women because it was “inherently unfair” and “highly prejudicial,” an approach borrowed from its arguments in the  hip implant verdicts.

Six plaintiffs died from ovarian cancer, several had spouses with additional claims, and each differed in their talcum powder use and prognoses.

“The proof is in the results: After five hours of jury instructions, the jury deliberated for only eight hours—less than 20 minutes per plaintiff,” Bauer wrote in the new trial motion. “Each family received the same $25 million in total compensatory damages, without any apparent regard for the individual circumstances of any particular plaintiff. The excessive and unconstitutional $4.14 billion punitive damage award highlights the combined effect of these rulings. Simply put: The trial was not fair, and the court should grant new trials for each individual plaintiff family.”

In responding, the plaintiffs’ lawyers turned to the U.S. Court of Appeals for the Eleventh Circuit’s 2017 ruling upholding a $27 million verdict in a consolidated trial of four women against Boston Scientific Corp. over its pelvic mesh products.

The $4.7 billion verdict came in the first talcum powder trial since the U.S. Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court of California, which made it harder for nonresident litigants to pursue claims in lawsuits with multiple plaintiffs.

In its motion for a judgment notwithstanding the verdict, Johnson & Johnson, based in New Jersey, continued to cite Bristol-Myers, noting that 17 of the 22 plaintiffs were not from Missouri. The plaintiffs’ attorneys wrote on Wednesday that a Missouri talc supplier had established jurisdiction.