After being denied in its second attempt to resolve talc lawsuits through a bankruptcy ploy, Johnson & Johnson is doubling down on another tactic it has used to negate some of the 30,000-plus claims it faces.
Tuesday, a New Jersey appeals court vanquished a $223 million jury award to four plaintiffs who claimed asbestos in the company’s iconic baby powder caused their cancer. The Superior Court ruled that a lower court should not have allowed jurors to hear the testimony of three scientific experts.
The hefty award was initially set in 2020 at $750 million before a judge reduced it, citing state limits on punitive damages.
“The trial court misapplied the well-established judicial gatekeeping procedures required by our courts and the error was not harmless in regard to the testimony,” the court wrote in Tuesday’s decision (PDF). “Therefore, we reverse and remand for a new trial.”
In May of this year, J&J sued one of the three experts—New York physician Jacqueline Miriam Moline, M.D.—saying her testimony was incorrect. In a separate action, the company also has sued three other experts who have testified in other talc cases.
“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," Erik Haas, J&J’s litigation chief, said in an emailed statement. "The decision appropriately strikes a blow to the heart of the asbestos bar’s improper strategy and its meritless talc litigation."
Two years ago, because of improper expert testimony in a case with one plaintiff, a New Jersey court tossed out a jury award of $117 million which had been handed down in 2018.
The company has stopped selling talc-based baby powder, opting for a cornstarch version of the product.
On Tuesday’s decision, Maryland-based mesothelioma trial lawyer Jon Ruckdeschel called it “disappointing but hardly noteworthy.”
“Ultimately, the court simply held that the trial judge should have held a hearing regarding the challenges to the evidence brought by J&J,” Ruckdeschel said in a statement. “J&J’s attempt to portray the ruling as some sort of indictment of the scientists who testified for the victims is fanciful, at best. We have every expectation that the evidence will be allowed at retrial and that J&J will, once again, be held responsible by the jury."
After J&J in July lost its second attempt to resolve tens of thousands of talc cases through a bankruptcy ploy, the number of lawsuits against the company has been rising quickly, Bloomberg reported last week. At least 11,000 cases have been filed in recent months, Bloomberg reported, citing a court transcript.