After Johnson & Johnson hit a setback in a high-profile talcum powder case back in 2019, the company vowed to appeal. Now, that strategy has paid off.
Tuesday, the appellate branch of the New York Supreme Court reversed an earlier decision in favor of plaintiff Donna Olson, who claimed her lifelong use of J&J’s talc caused her to develop mesothelioma. With a win in hand, J&J is also off the hook to pay Olson damages of $120 million, a figure that was reduced from an original award of $325 million.
At trial, the plaintiffs failed "to establish sufficient exposure to a substance to cause the claimed adverse health effect,” the appellate court said in its decision. To prove in court that a toxin like asbestos caused a person’s mesothelioma, plaintiffs need to present expert testimony that provides “a scientific expression of the level of exposure to toxins in defendant’s products that was sufficient to have caused the disease,” the court added.
Olson’s medical expert never met that standard, the court said.
After the case’s original four-month trial in 2019, jurors ordered J&J to shell out $300 million in punitive damages, plus $20 million for Olson’s past and future pain and $5 million to her husband for loss of consortium.
At the time, a J&J spokesperson told Fierce Pharma that the trial "suffered significant legal and evidentiary errors which Johnson & Johnson believes will warrant a reversal on appeal."
Elsewhere in J&J’s complex talc litigation, the company is leveraging a strategy dubbed the Texas two-step to absorb liabilities. Under the strategy, J&J last year spun up the subsidiary LTL management to funnel talc claims and then declared that company bankrupt.
While the strategy has been used by other companies to guard assets and dodge litigation costs, J&J and LTL aren’t in the clear just yet: In May, the Third U.S. Circuit Court of Appeals said it would revisit an earlier decision that backed J&J’s use of the tactic.
J&J, for its part, has continued to argue against claims that its baby powder caused ovarian cancer or mesothelioma. The company no longer markets the product in the U.S. and Canada, and it has recently resisted shareholder calls to halt sales worldwide, too.