Judge overturns $417M verdict over Johnson & Johnson baby powder
A judge has thrown out a $417 million verdict against Johnson & Johnson, which came about when a jury sided with a terminally ill plaintiff who said that Johnson's baby powder caused her ovarian cancer.
On Friday, Los Angeles Superior Court Judge Maren Nelson granted (PDF) J&J's motion for a new trial (PDF). The plaintiff, Eva Echeverria, won $70 million in compensatory damages and $347 million in punitive damages following a trial. Echeverria's trial date was accelerated because of her poor medical condition, and she has since died.
More than 5,000 lawsuits have been filed against J&J alleging that baby powder, which contains talc, is linked to ovarian cancer. The lawsuits typically allege that J&J had a duty to warn consumers about the connection between cancer and baby powder. J&J has maintained that its product is safe and any warning would be misleading.
All of this took place despite the fact that "[n]o published peer-reviewed articles have determined talc to cause ovarian cancer," as the judge wrote in her decision today.
Some case-control studies, based on asking women who have ovarian cancer about their history, have found a slightly increased cancer risk related to talc. But as the American Cancer Society notes, those kinds of studies can be biased because they rely on a person's memory of talc use years after the fact. Two prospective cohort studies, which don't suffer from that type of hindsight bias, found no increased risk.
Talc, a clay mineral found around the world, is often used in powder form as a moisture-absorbing product and is sold as talcum powder. "Baby powder" is a marketing term for cosmetic products that can be made from corn starch, talc, and other powders. Earlier versions of talcum powder sometimes contained asbestos, a known cancer-causing agent. But asbestos hasn't been present in talcum powder in the US since the 1970s.
Dr. Annie Yessaian, Echeverria's personal physician, was the only expert who testified about "specific causation," Judge Nelson noted in her 70-page order. Only two of the four studies she relied on showed that women using talc products had a 50-percent higher chance of developing ovarian cancer compared to women who didn't use it; the other studies showed less of a correlation. When stratified to specify serious ovarian cancer, like Echeverria's, the studies showed less of a correlation.
"[S]ubstantial evidence was not provided by Yessaian to "rule in" talc," wrote Nelson. And Yessaian's "ruling out" of other factors, like age and Echeverria's high number of ovulatory cycles, "amounted to no more than speculation."
Overall, the judge found there was "a lack of any proper testimony as to specific causation," and that was enough to set aside the verdict.
Nelson also found that Echeverria's lawyers improperly used evidence about Johnson & Johnson's lobbying efforts toward national and international agencies that regulate carcinogens, saying the company sought to "prevent regulation."
"[I]f Johnson & Johnson would have just stayed out of it, let the scientists do their work at the US government, the NTP [National Toxicology Program] would have listed talc as a carcinogen as far back as 2000," Echeverria's lawyer said at one point.
Another part of the judge's reasoning had to do with Johnson & Johnson's corporate structure. Johnson's Baby Powder is made by Johnson & Johnson Consumer Inc., a wholly owned subsidiary of J&J. The judge held that the parent company couldn't be held responsible because it doesn't manufacture or market the product, and Echeverria failed to present evidence to show that J&J was responsible for its subsidiary.
The judge also took issue with the jury's damages calculations after taking into account affidavits signed by two jurors who found for the defense, which said that pro-plaintiff jurors agreed to increase compensation after considering that taxes, appeal costs, and expenses would be taken out of Echeverria's compensation.
Finally, the judge found that punitive damages, which constituted the majority of the damages, were unwarranted.
In a statement sent to Ars via e-mail, Echeverria's lawyer Mark Robinson said he plans to file an appeal immediately.
"We disagree with the court’s decision," said Robinson. "A jury of Ms. Echeverria's peers found the Johnson and Johnson defendants liable. We will continue to fight on behalf of all women who have been impacted by this dangerous product."