The Real Reason Baby Powder Verdicts Are Being Tossed Out

A Los Angeles Superior Court Judge tossed out a monumental $417 million talc award on Friday, citing jury misconduct, trial errors, and excessive damages. The judge’s decision marks the second baby powder lawsuit to be flipped within five days after a Missouri judge overturned a $72 million verdict on October 17.

Problems with Echeverria’s Trial

Eva Echeverria won her case in August, in which she accused Johnson & Johnson of failing to adequately warn consumers about the potential cancer risks of using talcum powder for feminine hygiene. Johnson & Johnson argued that the verdict should be thrown out for several reasons.

  1. The Judge’s Decision — Initially the jury was split, but the judge allowed jurors to consider “multiple causes” for Echeverria’s cancer. The final decision was 9-3 against. J&J claims the judge’s decision was a mistake.
  2. Excluded Jurors — The three dissenting jurors were excluded from deliberations for damages, which J&J claimed resulted in an inflated award. Johnson & Johnson asserted in a statement: “It is established that jurors who vote against liability should still deliberate as to damages. The jury’s misconduct shows that passion and prejudice tainted the verdict.”

The plaintiff’s lawyer disputed the claims that jurors were excluded from any part of the process, and reiterated that the “Defendants did not lose because of something the jury did, the court did, or plaintiff’s counsel did. They lost because the evidence showed what they did.”

Problems with Fox’s trial

Jacqueline Fox’s verdict was tossed out last week by a Missouri court of appeals for a different reason: trial location. In this case, Johnson & Johnson argued that neither the plaintiff nor the defendant had any connection with the state of Missouri, and therefor the court did not have jurisdiction to hear the case. This argument was based upon a prior U.S. Supreme Court decision over the summer.

Impact on other talc lawsuits

While these recent rulings may seem like bad news for talc litigation, it’s important to note that neither decision called into question the link between talc and ovarian cancer. Both appeals made by J&J were rooted in the proceedings of the trial, and not evidence presented.

It’s also important to note that neither of the most recent decisions is the last word on the issue. For one thing, both of these decisions come from one step in the legal system above the trial courts, and there are still other levels of appeals that may still be open to the plaintiffs – all the way up to and potentially including the Supreme Court. Alternatively, the cases may face retrial or even a new trial to address the problems brought up by the appeals court decisions.

With the average talc award reaching nine figures and juries overwhelmingly siding with women, it doesn’t look like there’s an end in sight to the talcum powder rollercoaster. If anything, these procedural verdict reversals will strengthen the cases of plaintiffs as lawyers learn to close the legal loopholes that J&J is finding.