In August, a Los Angeles jury ordered Johnson & Johnson to pay $417 million to 63-year-old Eva Echeverria, a woman who is now in the terminal stage of ovarian cancer due to having used the company's talc-containing Baby Powder since puberty.
It was the most recent, and by far the largest, verdict against the New Jersey-based health care products company, which is currently defending itself against 4,800 similar lawsuits citing the product as the cause of action. Last week, attorneys for Johnson & Johnson filed motions asking the court to vacate the judgment and requesting a new trial, citing “jury misconduct” and “irregularities in the proceedings.”
According to the filings, members of the jury were frustrated by the inability to decide the case after two days of deliberations. According to the jury foreperson, one member actually turned away and started writing a note informing the judge that she “no longer wanted to participate.” A second juror angrily demanded that that a verdict be reached.
Deliberations continued through the weekend. By Monday, the jury decided in favor of the plaintiff by a 9-3 vote (jury verdicts in California civil cases do not have to be unanimous). However, in the motion, counsel for Johnson & Johnson said that the three who had sided with the defense had been excluded from the discussion over the amount of damages.
The defendant further claims that the jurors included “improper costs” when calculating non-economic damages (i.e., taxes and legal costs), basing them on the company's net worth. The defense considers the punitive damages to be “excessive,” attributing the decision to “improper evidence,” statements from plaintiff's counsel, and an expert witness whose testimony should have been inadmissible. In the motion, Johnson & Johnson lead counsel Bart Williams wrote,
“The size of the verdict, contrasted with the serious deficiencies in the evidence offered at trial, raise a broader concern about runaway juries imposing staggering liability based on speculative science—a concern that is amplified by the fact that this is only one of more than a thousand talc-related cases pending nationwide...The verdict is seriously flawed in so many respects that it cries out for this court’s intervention.”
The defense argued that there was insufficient evidence to link Echeverria's cancer with her use of Baby Powder, that the company had failed in its duty to warn consumers of said risks, or that Johnson & Johnson executives had acted with deliberate malice.
So far, the company itself has had no comment. However, in addition to a number of studies showing a causal association between the genital use of talc and ovarian cancer, Johnson and Johnson has a track record of covering up information related to its products. In a related story, recently unsealed company documents have revealed that Johnson & Johnson was aware of the presence of asbestos fibers in talc for several decades, despite having made the claim that asbestos “has never been found and it never will” be found in its Baby Powder.
The court is scheduled to rule on the defendant's motion by October 20th.