On July 12, a St. Louis jury awarded a group of women and their families almost $4.7 billion in damages in a product liability case. See, e.g., Associated Press, “Nearly $4.7 awarded in Johnson & Johnson baby powder lawsuit,” reprinted in Chicago Tribune, Jul. 13, 2018. The litigation involved allegations that baby powder sold by Johnson & Johnson contained asbestos and may have caused ovarian cancer. See id.The case is significant for a number of reasons: the size of the verdict, the jury’s decision to award punitive damages, and because this is the first case against Johnson & Johnson that “focused on asbestos in the powder.” Id.This article examines the issues in the lawsuit as well as certain factors concerning product liability litigation.
The Johnson & Johnson case is relevant not only because of the reasons enumerated above, but also because the company stated its intent to appeal the verdict, so the litigation may continue for a protracted period in the near future. See id.Some of the issues that were addressed in the recent trial are as follows:
(1). Forum: According to the defendant, the plaintiffs should not have been permitted to bring suit in Missouri because many of them were not residents of that state. See id.The plaintiffs demonstrated to the court’s satisfaction that they had sufficient contacts with Missouri to bring suit there, but such determinations often involve expert witness input. For example, experts can assess where a suit can or should be brought based on various rules of procedure that pertain to jurisdiction and venue. On appeal, experts in such matters may be important as consultants for attorneys writing briefs and as testifying witnesses who can offer evidence in support of either side’s claims.
(2). Causation: To prevail, the plaintiffs had to prove that there was a significant link between the combination of the mineral talc and asbestos in the baby powder the plaintiffs used and their injuries. See id.Causation must be established for a plaintiff to prevail in a lawsuit, and in product liability cases, this requires evidence from experts. See, e.g., id.In the Johnson & Johnson trial, medical experts helped establish causation. See id.
In addition, experts in product liability and specifically, asbestos litigation are indispensable, as their depth of knowledge can be the key to preventing a claim from being dismissed at summary judgment and obtaining a favorable verdict. In the Johnson & Johnson case, “[m]edical experts testified during the trial that asbestos, a known carcinogen, is intermingled with mineral talc, which is the primary ingredient in Johnson & Johnson’s Baby Powder and Shower to Shower products. The plaintiffs’ lawyers said asbestos fibers and talc particles were found in the ovarian tissues of many of the women.” Id.
In the case at hand, the plaintiffs expressed their hope that the attention their claims received would result in obtaining notice from “the J&J board and that it will lead them to better inform the medical community and the public about the connection between asbestos, talc, and ovarian cancer.” Id.In this way, experts may be able to assist companies, the media, medical providers, and others by informing people of potential dangers and preventing potential injuries. This educational role could result in improved health and save lives. Regardless of whether the defendant should be held liable, the spotlight on this lawsuit may lead to more precautions and safer products.
(3). Damages: In the case at hand, the jury awarded punitive damages, based on an argument the plaintiffs’ attorney made that “Johnson & Johnson knew its products contained asbestos and didn’t warn consumers.” Id.In order to bolster this allegation, certain evidence was produced to establish prior knowledge. To obtain an award of punitive damages, parties must generally prove that the defendant acted in such a way as to be reprimanded. If, in fact, the defendant knew its product might have been harmful but did not notify the public, such information might be sufficient grounds for punitive damages. Expert witnesses can play an important role in the damages phase of product liability lawsuits. Those in the field can discuss what industry standards are, whether they were adhered to in a specific case, and what kinds of damages should be awarded, if any. Even with compensatory damages, expert evidence is integral to success—the figures requested and potentially awarded must be rooted in a clear and just calculation. Jurors often rely heavily on expert witnesses to determine what amount should be awarded if they decide a party has proven the necessary elements of a case.
For those in the product liability field, it may be helpful to follow the Johnson & Johnson lawsuit and pay close attention to the rationale behind the jury verdict and pending appellate decision. In this way, litigators can better assess the strengths and weaknesses of their own cases and work with experts to solidify their positions.