An appeals court in Missouri handed 20 women, including two from Texas, a partial but still major $2.11 billion victory Tuesday by upholding a jury’s verdict against a subsidiary of pharmaceutical giant Johnson & Johnson for making and selling asbestos-containing talcum powder products that led to the women being diagnosed with ovarian cancer.
A three-judge panel of the Missouri Court of Appeals unanimously kept intact a significant portion of a St. Louis jury’s verdict in 2018 awarding $4.69 billion to 22 women – half of whom have died from ovarian cancer since the lawsuit was filed – for failing to warn them about the dangers of the product.
In an 83-page decision, the appellate judges stated that Johnson & Johnson subsidiary J&J Consumer Inc. engaged in “reprehensible conduct.”
“Plaintiffs proved with convincing clarity that defendants engaged in outrageous conduct because of an evil motive or reckless indifference,” Appeals Judge Philip Hess wrote.
In a partial win for J&J, the appellate court tossed out the judgments for two of the women because they never used J&J’s talc-based products manufactured in Missouri. Those two plaintiffs would have to file their complaints elsewhere.
In addition, the judges reduced the amount of punitive damages awarded by the jury from $4.14 billion to $1.61 billion.
“We are thrilled,” Houston lawyer Mark Lanier, who represents the 22 women and their families, told The Texas Lawbook on Tuesday. “This is a well-reasoned and very conservative opinion that we think is fair.”
Lanier said that each of his clients would receive $110 million under the appellate court’s decision.
“Every one of my clients would trade every dime of this money in order to get their health and lives back,” he said. “Johnson & Johnson has at long last been held accountable for its misconduct. To their shame, decade after decade, Johnson & Johnson and its subsidiary knowingly manufactured and sold dangerous, life-threatening products.”
Lanier said he would not appeal the decision to the Missouri Supreme Court, but he expects that J&J will appeal. He said he will re-file the lawsuits for the two women dismissed in this case in the state courts of New Jersey.
“We continue to believe this was a fundamentally flawed trial, grounded in a faulty presentation of the facts,” J&J spokeswoman Kim Montagnino told The New York Times. “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.”
J&J faces nearly 20,000 lawsuits related to its talc powder products. Lanier represents about 1,000 of the plaintiffs.
The Missouri appeals court left no doubt how it felt about J&J’s conduct.
“Because defendants are large, multibillion-dollar corporations, we believe a large amount of punitive damages is necessary to have a deterrent effect in this case,” Judge Hess wrote. “We find there was significant reprehensibility in defendants’ conduct.
“The harm suffered by plaintiffs was physical, not just economic,” the judge wrote. “Plaintiffs each developed and suffered from ovarian cancer. Plaintiffs underwent chemotherapy, hysterectomies, and countless other surgeries. A reasonable inference from all this evidence is that, motivated by profits, Defendants disregarded the safety of consumers despite their knowledge [that] the talc in their Products caused ovarian cancer.”
At the April 24 appellate arguments, the plaintiffs were represented by Kevin Parker of the Lanier Law Firm, assisted on the brief by Mark Lanier, Ken Starr, Natalie Armour, Benjamin Major and Megan Waida. Co-counsel on the brief included Eric Holland and Patrick Dowd of Holland Law Firm, and John Torbitzky of Behr McCarter & Potter.