A federal appeals court tossed out a $223 million jury award to four mesothelioma patients from New Jersey who claimed they developed cancer from using Johnson & Johnson’s baby powder.
In an Oct. 3 ruling, the Superior Court of New Jersey’s appellate division ruled that the Superior Court in Middlesex County should not have allowed jurors to hear improper scientific testimony linking the New Brunswick-based health giant’s talc-based product to the cancers.
In reversing the verdict and ordering a new trial, the three-judge appeals panel wrote that the lower court failed to fulfill its “gatekeeping role” of assessing whether the plaintiffs’ experts based their testimony on sound science. According to the judges’ opinion, the three experts did not explain the facts or methods they used to support their position that the plaintiffs got cancer from being exposed to asbestos in J&J’s talc products.
The jury in the case originally ordered the company to pay $750 million in February 2020; however, the judge reduced that figure, citing state caps on punitive damages.
In a statement following the Oct. 2 ruling, Erik Haas, J&J’s worldwide vice president of litigation, said, “The Appellate Division’s decision … resoundingly rejects – again – the ‘junk science’ advanced by purported ‘experts’ paid by the mass tort asbestos bar.”
“This marks the third time in three years that an appellate court has overturned outsized verdicts that asbestos lawyers secured by confusing and misleading juries with unscientific opinions touting baseless liability theories. The decision appropriately strikes a blow to the heart of the asbestos bar’s improper strategy and its meritless talc litigation,” he said.
The latest ruling comes about three months after J&J’s second attempt to resolve its mass talc liabilities via bankruptcy fell apart when a federal judge dismissed the case, which will return more than 38,000 lawsuits back to the civil tort system.
In rendering his decision in July, Judge Michael Kaplan in Trenton said that LTL Management – a subsidiary created by the New Brunswick health care giant to handle such claims – is not eligible for Chapter 11 because the company is not in financial distress.
LTL’s first bankruptcy filing was dismissed in January by a Third Circuit Court of Appeals panel in Philadelphia, which ruled that neither J&J nor is subsidiary were in dire financial straits.
Three months later, LTL attempted again to use the strategy – which is known as the Texas two-step – filing a second time for Chapter 11 and proposing an $8.9 billion settlement to resolve current and future claims. That sum marked a significant increase from the $2 billion J&J committed during its October 2021 bankruptcy bid.
The company, which has continued to maintain that its products are safe, pulled its talc-based baby powders off the market in the U.S. and Canada three years ago and replaced them with a cornstarch-based version. J&J has also vowed to stop selling all its talc-based baby powders worldwide by the end of 2023.
Reuters noted the lawsuits “have a mixed record of success,” with major plaintiff wins including a $2.1 billion judgement awarded to 22 women with ovarian cancer.
However, J&J has also won reversals of some cases, such as a $117 million verdict in the same New Jersey appeals court and a $120 million verdict in New York.