By Peter Loftus, MarketWatch
A New Jersey state jury has ordered Johnson & Johnson to pay $750 million in punitive damages to four people who said their use of the company’s talcum powders caused a rare cancer, the latest legal loss for the health-care giant. The judge presiding over the trial, Ana C. Viscomi of New Jersey Superior Court, citing state law, said she planned to reduce the punitive award to $186.5 million, or about five times the $37.3 million in compensatory damages awarded by a separate jury in the first phase of the case last year.
The trial was notable because it was the first in which J&J Chief Executive Alex Gorsky testified in a courtroom in litigation over the safety of Johnson’s Baby Powder and another talc-containing powder that J&J used to market, Shower to Shower. Mr. Gorsky in late January appeared in court a few blocks away from J&J’s New Brunswick, N.J., headquarters and testified the company took steps to ensure that its talc-containing powder was safe and didn’t contain asbestos.
The jury, however, voted last week that J&J’s conduct caused harm to the plaintiffs, who got mesothelioma, a cancer of the lining of the lungs, and that the conduct was either malicious or in wanton and willful disregard of their rights. The verdict “was a loud repudiation of J&J’s decades of excuses,” including by Mr. Gorsky, said Moshe Maimon, one of the attorneys for the plaintiffs. Plaintiffs’ lawyers have argued that the powders contained asbestos and that J&J didn’t sufficiently warn consumers of the risk.
J&J said Thursday it will appeal the verdicts in both phases of the trial, citing “numerous legal errors that subjected the jury to irrelevant information and prevented them from hearing meaningful evidence.” The company said it has acted responsibly, and that more than 40 years of independent testing have confirmed that Johnson’s Baby Powder is safe, doesn’t contain asbestos and doesn’t cause cancer.
About 16,800 plaintiffs have filed lawsuits against J&J in U.S. state and federal courts alleging the company’s talcum powders caused ovarian cancer or mesothelioma, and J&J failed to properly warn consumers of this risk. The $37.3 million awarded in the first phase of the trial last year was intended to compensate the plaintiffs for the harm they suffered. The second phase of the case started in January before a different jury, to decide whether J&J should pay the plaintiffs additional, punitive damages as punishment for the company’s conduct.
Mr. Gorsky, who has worked at J&J most of his career and has led the company since 2012, has publicly defended the safety of one of the company’s best-known products, Johnson’s Baby Powder, since litigation over the topic began to mount in recent years. Mr. Gorsky said during the trial he has relied on the company’s experts who have expressed confidence in the methodologies the company has used over the decades. Mr. Gorsky also said he didn’t read all of the historical company documents related to the safety of the company’s talc powder.
J&J has won some talc trial verdicts including several late last year, but has also had some costly losses in others, such as a 2018 verdict by a St. Louis jury ordering the company to pay $4.7 billion to 22 women and their families who alleged the women’s use of J&J’s powders caused ovarian cancer. J&J is appealing that verdict and other losses.The question of whether J&J’s talc powder contains asbestos flared up again last fall. In October, the U.S. Food and Drug Administration said a contract laboratory detected trace amounts of asbestos in a bottle of Johnson’s Baby Powder. J&J recalled about 33,000 bottles from the same lot as a precautionary measure, but said subsequent testing by other labs the company hired found no asbestos in the same bottle and lot.
The company also is facing tens of thousands of lawsuits over the safety and marketing of a range of products including opioids, the antipsychotic Risperdal and surgical mesh devices.