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Calif. judge reverses $417 million award in talc powder case

Legal Newsline, October 26, 2017

By: Jessica Karmasek

A California judge last week reversed an award of more than $400 million to a woman who claims Johnson & Johnson’s talc powder caused her ovarian cancer.

Judge Maren Nelson for the Los Angeles Superior Court issued her ruling late Friday, reversing the $417 million award a jury granted in August.

Specifically, Nelson granted Johnson & Johnson’s motions for judgment notwithstanding the verdict, or JNOV, and the defendant company’s motions for a new trial -- as to both parent company Johnson & Johnson and Johnson & Johnson Consumer Inc., the subsidiary that actually manufactures and markets Johnson’s Baby Powder.

Nelson, in her 51-page order, said she is “of the firm view” that the plaintiff’s expert on specific causation “ruling out” of age and ovulatory cycles “amounted to no more than speculation.”

“Her testimony that it was ‘probable’ the cause of the cancer was unknown, but then putting a ‘less than 50 percent chance’ on same (with no reasoning) likewise amounted to mere speculation,” the judge wrote.

“Those facts show that the expert did not properly employ the methodology she espoused and independent of the fact that there was no evidence of substance to rule talc ‘in,’ persuade the Court that JNOV must be granted to JCCI and Johnson & Johnson on the basis that no specific causation was shown.”

Nelson said in her order that “insufficient” evidence on both sides and various errors led to an award of “excessive” damages. She also noted there was some jury misconduct during the trial.

Johnson & Johnson, headquartered in New Jersey, said it was pleased with the judge’s ruling.

“Ovarian cancer is a devastating disease -- but it is not caused by the cosmetic-grade talc we have used in Johnson’s Baby Powder for decades,” according to a company statement.

“The science is clear and we will continue to defend the safety of Johnson’s Baby Powder as we prepare for additional trials in the U.S.”

Mark P. Robinson Jr. of Robinson Calcagnie Inc., based in Newport Beach, California, represented the plaintiff, Eva Echeverria.

He said in a statement he would file an appeal immediately.

“We will continue to fight on behalf of all women who have been impacted by this dangerous product,” Robinson said.

The $417 million verdict returned against Johnson & Johnson in August included $70 million in compensatory damages and $347 million in punitive damages.

Echeverria, 63, said she contracted ovarian cancer in 2007 after using the company’s powder for more than 40 years.

The trial -- the first talc bellwether trial in California and the first outside of St. Louis -- began in Los Angeles July 10 and lasted four weeks, culminating in the single largest award to date in a talc lawsuit.

Last year, a Missouri jury found Johnson & Johnson liable for injuries resulting from the use of its talc powder, awarding the family of an Alabama woman $72 million.

Last week, a Missouri appellate court threw out the jury verdict, ruling that the case should not have been tried in St. Louis.

Like Echeverria, Missouri plaintiff Jacqueline Fox used Johnson’s Baby Powder for feminine hygiene for decades. Fox, who was diagnosed with ovarian cancer in 2014, died shortly before the trial began, in October 2015, at age 62.

Echeverria claimed Johnson & Johnson was aware of numerous studies linking talc-based powders with ovarian cancer, but chose not to warn women.

Thousands of similar lawsuits are awaiting trial across the country, including hundreds in California courts.

Johnson & Johnson says science supports the safety of its product.

It points to the National Cancer Institute’s Physician Data Query Editorial Board, which wrote in April: “The weight of evidence does not support an association between perineal talc exposure and an increased risk of ovarian cancer.”