(Photo: Mike Mozart/Flickr)

A Los Angeles Superior Court judge is weighing whether alleged juror misconduct and trial exhibits that Johnson & Johnson says failed to prove punitive damages necessitate tossing a record $417 million talcum powder verdict.

At a hearing on Thursday, Judge Maren Nelson asked both sides whether granting a new trial was “mandatory under existing case law” should she find juror misconduct tainted the Aug. 21 verdict. She appeared to focus specifically on Johnson & Johnson’s allegations that jurors shouldn’t have included attorney fees and taxes into their calculation of damages.

But the judge spent the vast majority of the hearing questioning the origins of specific documents that plaintiff’s attorneys used at trial to establish punitive damages, which was $347 million of the jury’s award.

Juror misconduct is one of several allegations Johnson & Johnson has asserted to toss the 9-3 verdict. In a motion for new trial, its lawyers submitted the declarations of two of the three jurors who sided with the defense, including the foreman, who described a tense deliberations process in which they were cut out of the discussion on damages. They also insisted that the jury improperly considered attorney fees and taxes in its calculation of compensatory damages.

The misconduct allegations reflect that jurors failed to follow the court’s instructions and that the “jury was inflamed,” Johnson & Johnson attorney Manuel Cachán, a Los Angeles partner at Proskauer Rose, said at Thursday’s hearing.  

Plaintiffs attorneys have moved to strike the juror declarations as impermissible evidence under California law.

“But even if they were admissible, they’re not enough to show misconduct or prejudice warranting a new trial,” said Mark Robinson, of Robinson Calcagnie Inc. in Newport Beach, California. He represented Eva Echeverria, who claimed her prolonged use of talcum powder caused her to be diagnosed with ovarian cancer in 2007 and that Johnson & Johnson failed to warn about the known health risks. She died after the trial.

At Thursday’s hearing, Nelson raised several questions about whether some of the documents on which plaintiffs 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.

“Is it fair to say there is nothing in the record that shows that J&J manufactured or marketed the product after 1967?” she asked, repeatedly asking Robinson to show her that evidence.

“I think a jury had a right to find that J&J stayed involved here,” Robinson said. “They had a duty to warn Ms. Echeverria. The duty did not stop because they hired somebody to make it for them.”

Whether the evidence was sufficient to warrant the jury award was the crux of a separate motion that Johnson & Johnson filed for judgment notwithstanding the verdict, which Nelson also considered on Thursday.

“We are truly sensitive to the tragedy of Ms. Echeverria’s death,” Johnson & Johnson attorney Bart Williams, another Proskauer Rose partner in Los Angeles, said on Thursday. But “we believe the evidence simply doesn’t support this verdict—or any verdict.”

In the alternative, he asked Nelson to “significantly reduce” the punitive damages.

The trial is the latest to come out of the talcum powder litigation, which involves thousands of women with claims primarily in Missouri, New Jersey and California. Previous verdicts, all in Missouri, have totaled $300 million in awards.

The next talcum powder trial is scheduled for Oct. 16 in Missouri. The family of Shawn Blaes, a Missouri resident who died in 2010, claims her prolonged use of Johnson & Johnson’s baby powder and Shower to Shower caused her to get ovarian cancer in 2008. The Blaes family originally went to trial in June along with the families of two other plaintiffs, neither of whom was from Missouri. But 22nd Circuit Court Judge Rex Burlison declared a mistrial in the case  after the U.S. Supreme Court’s June 19 ruling in Bristol-Myers Squibb v. Superior Court of California, which made it harder for plaintiffs to sue in states outside of their own.

Another case against Johnson & Johnson is set to be the first trial over claims that its talcum powder products caused mesothelioma. It began on Oct. 6, but on Tuesday, Los Angeles Superior Court Judge C. Edward Simpson declared a mistrial after a witness mentioned ovarian cancer, which was prohibited. A new trial in the case is expected to start next week, according to Chris Panatier, a shareholder at Simon Greenstone Panatier Bartlett in Dallas . He represents Tina Herford, who claims she got mesothelioma from breathing in baby powder and Shower to Shower, which contained asbestos. In 2015, Panatier got a $12.4 million verdict in a similar case against Colgate-Palmolive.