Missouri Court Slashes $4.7 Billion Award in Baby Powder Case

ST. LOUIS (CN) — A Missouri appeals court on Tuesday upheld a jury verdict against Johnson & Johnson over damages caused by its talcum powder products, but reduced the award from $4.7 billion to $2.1 billion.

The unanimous decision by the Missouri Court of Appeals’ Eastern District came in the case of 22 women who claimed they developed ovarian cancer from using Johnson & Johnson’s talc-based baby powder.

Slashing the jury award down from $4.69 billion, the court revised it to $500 million in actual damages and $1.62 billion in punitive damages.

(AP Photo/Jeff Chiu, File)

“I’m pleased that all three judges agreed,” plaintiffs’ attorney Eric Holland said in an interview. “I’m also pleased that they so carefully looked at the evidence and I was so impressed with how they were able to dive into what amounted to a 6,000-page record in what was a six-week trial and come up with what happened here. Very impressive work.”

Johnson & Johnson announced on May 19 that it would stop selling its talc baby powder in the United States and Canada. The New Jersey-based pharmaceutical and medical products giant faces more than 19,000 lawsuits regarding its talc powder products, according to Reuters.

“We are grateful to the court for their time; however, we continue to believe this was a fundamentally flawed trial, grounded in a faulty presentation of the facts, and will pursue further review of this case by the Supreme Court of Missouri,” Johnson & Johnson spokeswoman Kim Montagnino said in an emailed statement. “We deeply sympathize with anyone suffering from cancer, which is why the facts are so important. We remain confident that our talc is safe, asbestos free, and does not cause cancer.”

But the three-judge panel of the Missouri Court of Appeals found differently in its 83-page opinion.

The court noted that expert testimony showed Johnson & Johnson knew that its talc baby powder contained asbestos “since the 1970s or earlier” and that its talc supplier Rio Tinto Minerals warned that there was no safe level of asbestos exposure and that any presence of asbestos in its talc “would be a serious problem.”

The ruling noted that plaintiffs’ evidence “further showed defendants worked tirelessly to ensure the industry adopted testing protocols not sensitive enough to detect asbestos in every talc sample.” It also showed that Johnson & Johnson knew of alternative, more reliable methods for detecting asbestos but “aggressively recommended” that the Food and Drug Administration adopt less reliable standards to promote its own interests.

Presiding Judge Philip M. Hess wrote that “there was significant reprehensibility in defendants’ conduct.”

“The harm suffered by plaintiffs was physical, not just economic,” Hess wrote. “Plaintiffs each developed and suffered from ovarian cancer. Plaintiffs underwent chemotherapy, hysterectomies, and countless other surgeries. These medical procedures caused them to experience symptoms such as hair loss, sleeplessness, mouth sores, loss of appetite, seizures, nausea, neuropathy, and other infections. Several plaintiffs died, and surviving plaintiffs experience recurrences of cancer and fear of relapse.”

The judge added that the jury’s finding “supports that defendants’ exposure of consumers to asbestos over several decades was done with reckless disregard of the health and safety of others.”

Judges Kurt S. Odenwald and Lisa P. Page concurred.

“They nailed the conduct of Johnson & Johnson that supported the jury’s finding of punitive damages,” Holland, the plaintiffs’ attorney, said in an interview. “They pointed out the long, long history of Johnson & Johnson’s knowledge that there was asbestos in the product, their extensive efforts at rigging the tests so the tests would not show it, and their attempts to influence the regulators and basically hide the evidence from people that there was asbestos in the product.”

The original damages figure was reduced after the appeals court ruled that the trial court erred in not granting Johnson & Johnson’s motion for dismissal on two of the plaintiff’s claims due to lack of jurisdiction. Holland said he is reviewing all the legal options available with those plaintiffs.

While he is happy with the ruling, Holland called it a bittersweet day because 11 of the 22 plaintiffs did not live to see the ruling. He said he spoke to several of those families after the ruling was issued.

“It’s an important day for them,” the attorney said. “It’s an important day for the surviving family to see that it has come to this point now.”

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