By Tina Bellon
NEW YORK (Reuters) – Johnson & Johnson has vowed to appeal a $4.7 billion verdict awarded to 22 women who claim asbestos-contaminated talc in the company’s products gave them ovarian cancer by arguing the plaintiffs’ science was flawed and the case should not have been heard in Missouri.
But several legal experts said that even though J&J has been successful in winning appeals of other talc cases in Missouri, it will face a challenging road in appealing the verdict handed down on Thursday in the Circuit Court of the City of St. Louis.
John Beisner, a lawyer for Johnson & Johnson, said, “One of the hardest things will be prioritizing what to appeal first.” He described to Reuters the company’s jurisdictional and scientific arguments for overturning Thursday’s verdict.
In a statement responding to the verdict, J&J reiterated its position that its products never contained asbestos and were not carcinogenic.
Thursday’s verdict is the largest to date arising from lawsuits alleging talc-based products like J&J’s baby powder have caused cancer. The jury reached its decision in less than a day, following five weeks of expert testimony from both sides.
The stakes are potentially high for J&J, which is facing 9,000 cases nationwide over talc. The company has had previous success in overturning large verdicts in talc cases as well as others alleging harm from its products.
But several legal experts said Missouri courts, including at the appellate and supreme court level, were historically plaintiff-friendly and could prove unreceptive to J&J’s arguments.
“J&J has strong arguments, but unless they get to certify this case to the U.S. Supreme Court, which are very long odds, this decision is likely to stand,” said Lars Noah, a law professor at the University of Florida.
He said he expected J&J would go through the appeals process but would ultimately wind up settling the case.
Beisner said he was not aware of any interest in settlement. “Our attention will remain focused on the appeals from this and the other trials awaiting review.”
Beisner said jurisdiction will be one major basis for J&J to appeal Thursday’s verdict. Most of the 22 plaintiffs were not Missouri residents, and he said they should not have been allowed to sue New Jersey-based Johnson & Johnson in St. Louis under a recent U.S. Supreme Court decision that severely restricted state courts’ jurisdiction over injury lawsuits brought by non-residents against out-of-state companies.
J&J seized on that decision to successfully overturn previous talc verdicts in Missouri.
Mark Lanier, the plaintiffs’ lawyer who won Thursday’s verdict, said he was ready for that argument.
Lanier said his team amassed “hundreds of pages of evidence” showing lobbying efforts and baby powder focus groups J&J conducted in the state. He also spotlighted the claim by 15 of his non-resident clients that they used a specific short-lived J&J talc-based product manufactured by Missouri-based contractor.
“I hope they focus their appeal on jurisdiction because I’m confident we’ll win that,” Lanier said. He did say that he expects the punitive damages award to be halved during the appeals process due to a Missouri state law that caps such damages, but is confident the verdict would stand overall.
The $4.69 billion in total damages includes $550 million in compensatory damages and $4.14 billion in punitive damages.
Elizabeth Burch, a law professor at the University of Georgia, said that even under the new Supreme Court guidance, the women’s claim that they used the specific product, if true, provided “a pretty strong link to Missouri.”
At trial J&J had unsuccessfully sought to cast doubt on the 15 women’s claims to have used the same product that was only available for a few months, depicting it as a ruse designed to bypass the jurisdiction issue. Beisner said J&J would make the same argument on appeal.
Along with jurisdictional arguments, Beisner said the company would continue to put forth its case that scientific studies overwhelmingly show talc itself is safe and the company’s talc-based products never contained asbestos.
“None of plaintiffs’ experts were able to put forward a valid theory and there is simply no science to support what they call asbestos in the product,” said Beisner.
J&J says decades of testing by laboratories and independent agencies, including a study by the U.S. Food and Drug Administration, support its position. The company said plaintiffs’ tests showing asbestos contamination were “junk science.”
But Lanier argued that it was the agencies and labs cited by J&J that used flawed testing methods that failed to detect asbestos.
Noah said Missouri judges have historically applied a lower standard than federal court for admitting scientific evidence. Last year the state passed a law requiring its courts to adopt the federal standard, but he said state courts would be interpreting that requirement for years to come.
“Missouri judges aren’t going to suddenly change their tune,” Noah said.
(Reporting by Tina Bellon; Editing by Anthony Lin and Leslie Adler)