Saying there is no proof Johnson & Johnson willingly sold baby powder and other talc products it knew contained asbestos, a Los Angeles County judge has tossed much of a blockbuster $966 million verdict a jury had earlier ordered the company to pay to the family of woman who died of a cancer normally caused by asbestos exposure.
On March 13, Los Angeles County Superior Court Judge Ruth A. Kwan ruled that the jury had improperly and unconstitutionally ordered pharmaceutical and personal care products maker Johnson & Johnson to pay nearly $1 billion to the family of Mae Moore.
Moore had died in 2021 at the age of 88 after contracting the lung cancer known as mesothelioma.
In the ruling, formally known as a judgment notwithstanding the verdict (JNOV), Kwan specifically said the evidence did not back the jury’s decision to award $950 million in so-called punitive damages against J&J.
“A review of the entire record read in context and even in a light most favorable to plaintiffs reveals little, if anything, to suggest that J&J actually knew asbestos existed in its products,” Kwan wrote. “Without having clearly and convincingly established that J&J had such knowledge (and failed to act), malice cannot be found.”
Specifically, the judge said the evidence in the case indicated “hundreds of test results showed no asbestos in Johnson’s Baby Powder,” while other “studies claiming to have found asbestos … were retracted, could not be duplicated, or were otherwise debunked or questionable.”
And the judge said the evidence showed “when J&J learned that asbestos might be present, it acted to address those findings,” using the best available technology and rigorous methods to do so, despite the claims to the contrary from the plaintiffs’ lawyers suing them.
“In sum, despite plaintiffs’ attempt at showing J&J knew asbestos existed in its products, the record does not support a high probability that J&J actually knew, believed, and willfully and deliberately disregarded the presence of asbestos in its products,” the judge wrote.
The judge also rejected the plaintiffs’ contention the punitive damages award could be backed by a claim J&J somehow “concealed” the presence of trace amounts of asbestos from customers and the public.
The judge did not disturb the $16 million in actual damages the jury awarded to Moore’s children, saying the jury could reasonably conclude Moore’s illness could have been the result of exposure to trace amounts of asbestos in talc.
But the judge said plaintiffs needed more to support the massive punitive damages award.
“Independent of establishing by clear and convincing evidence that J&J knew its products contained asbestos, plaintiffs must also establish by clear and convincing evidence that J&J knew that there was enough asbestos in its products to ’cause a high probability of injury,'” Kwan wrote. “In reviewing the record as a whole, the Court finds no such showing.”
In response to the ruling, Erik Haas, J&J’s Worldwide Vice President of Litigation, released a statement, saying: “The trial court appropriately threw out the $950 million punitive damages award secured by the plaintiff lawyers’ misleading presentation, as it was devoid of evidentiary support and patently unconstitutional.
“After reviewing the full trial record, the trial court correctly concluded that decades of extensive testing showing Johnson & Johnson’s cosmetic talc products did not contain—and the Company had no reason to be believe they contained—any asbestos. As matter of law, therefore, the punitive damages cannot stand, which is the same reasoning and conclusion that applies to any punitive award rendered against the Company.”
J&J pledged to appeal “all remaining claims in this case.”
Attorneys representing Moore’s family said they also will appeal.
“We respect the jury and the court, but respectfully disagree with the trial court’s opinion and intend to appeal,” said Danny Kraft, an attorney with the firm of Dean Omar Branham Shirley, in response to questions from The Record.
Kwan’s ruling comes about five months since the L.A. County jury grabbed headlines around the world with the $966 million total verdict.
In the verdict, the jury awarded Moore’s family $16 million in actual damages, but tacked on $950 million in so-called punitive damages, or a payout ordered as a way of punishing a defendant for their alleged misconduct and to make an example of them.
Moore’s family’s lawsuit was one of thousands lodged against J&J in recent years, all claiming that the plaintiffs or their family members were exposed to asbestos within talc allegedly contained within the baby powder manufactured and sold for decades by J&J.
J&J has repeatedly claimed the lawsuits were based on “junk science” studies that have been withdrawn, discredited or debunked.
Nonetheless, litigation has continued against J&J in California and elsewhere in the U.S. and the United Kingdom over claims J&J’s baby powder products had allegedly caused mesothelioma.
J&J has noted it has prevailed in court in “the vast majority” of such talc cancer claims, based on the allegedly false studies.
J&J baby powder products no longer use talc, as the company has transitioned to a corn starch-based product instead.
Despite the outcomes in other courts, the L.A. jury came down heavily in favor of Moore’s family.
In response, J&J called on Judge Kwan to dump the jury verdict, calling it “egregious” and the result of a “jury process gone awry.”
They asserted the verdict was both unconstitutional and the product of an unfair trial and a jury that disregarded the actual evidence in the case at trial, rendering a verdict that should be disallowed under existing California state appeals court precedent.
Judge Kwan largely agreed, vacating the punitive damages award entirely.
In addition to noting the evidentiary issues supporting her decision to scrap the $950 million punitive damages award, Kwan agreed the punitive damages greatly exceeded constitutional limits, particularly in light of the evidence concerning J&J’s “malice.”
She said, at best, punitive damages could have been limited to $6 million in the case.
The judge further said, if she had not granted the JNOV, she also would have ordered a new trial on the question of punitive damages because she agreed plaintiffs’ lawyers had ignored some court rulings concerning evidence when arguing their case to the jury, jeopardizing J&J’s ability to receive a fair trial.
Moore’s family has been represented in the case by attorney Kraft and others with the DOBS firm, of Dallas, Texas.
J&J has been represented by attorneys Sabrina H. Strong and Esteban Rodriguez, of the firm of O’Melveny & Myers, of Los Angeles; and John L. Ewald, of Kirkland & Ellis, of New York.
