In the recent talcum powder jury verdict against J&J, the company was hit with the largest verdict by a 9-3 jury vote. The claims against J&J allege that the company’s baby powder caused ovarian cancer in women. In the recent filing, the company claims that jury misconduct necessitates an overturning of the verdict in this instance and requires a new trial on all issues. Although, settlement negotiations are rarely made public, it is quite possible that the reason this case went to trial in the first place was because a settlement could not be reached. And now the company is unhappy with the enormous verdict. Thousands of other women are part of claims primarily in Missouri, New Jersey, and California.
Usually jury deliberations are secretive and what is said inside the room cannot be heard by judges or attorneys. However, after the trial the jury in this case was split with 3 holdouts who were not sure that the defendant was responsible for anything. One juror allegedly began writing a letter to the judge trying to recuse herself from participating. By all accounts, passions were running high. J&J alleges that the three holdout jurors were excluded from the later portion of the discussion regarding the calculation of damages. Attorney fees, taxes and even the company’s net worth were allegedly discussed when coming up with a final award.
Johnson & Johnson filed an additional motion for judgment notwithstanding the verdict on September 15, 2017 and argued that there was not enough evidence at trial that the talcum powder caused the plaintiff’s cancer or that J&J failed to warn about known risks. It is not surprising that the company continues to deny such evidence given the size of this verdict, as well the lawsuits still looming on the horizon. Even if the likelihood of success on the merits on the motion filed by the company is low, there could still be a strategic advantage to filing the motion in an attempt to sway public opinion in the future. If the company can persuade the American public to believe that the evidence linking the powder to the cancer is weak then J&J is more likely win future cases. The truth of the science linking their product to cancer is of course presented at the trial for the jury to decide.
While this verdict set the record, other verdicts on the same issue were still quite high, summing to $300 million, the highest of which was $110 million. During the plaintiff’s opening remarks to the jury the defense counsel raised objections. He even moved for a mistrial based on how the California standard for negligent failure to warn was described to the jury in the Plaintiff’s opening statement. Defense attorneys argue that misstatements likely confused the jury. Internal documents dating back to 1964 were presented at trial that allegedly showed the company knew of the health risks from the powder.
This case is unlikely to be resolved for several years, as J&J will surely pursue all available appeals, due to the size of this verdict.