Plaintiffs Must Select New Trial for Talc Verdict or Reduced Damage Award
Johnson & Johnson is the defendant in more than 20,000 lawsuits that allege the company’s talcum-based Johnson’s Baby Powder and Shower-to-Shower caused plaintiffs to develop mesothelioma and ovarian cancer. In one such case, Olson v. Brenntag N. Am., Inc., plaintiffs Donna Olson and Robert Olson thought they had won big in their suit. In May 2019, a jury decided that Johnson & Johnson would have to pay the plaintiffs $25 million in compensatory damages, as reported by Insurance Journal. The jury further awarded the Olson’s $300 million in punitive damages.
Johnson & Johnson moved to either set aside the verdict or for a new trial on liability and damages.
The Supreme Court of New York County decided to uphold the compensatory damages awarded to the Olson’s, agreeing with the plaintiffs’ claim of Johnson & Johnson’s liability for defective design and failure-to-warn. According to the court, trial evidence supported the claim that by using Johnson’s Baby Powder and Shower to Shower products, the plaintiff suffered exposure to asbestos. Expert testimony further supported the claim that this exposure would have been sufficient cause for Olson’s mesothelioma.
The design defect claim in Olson’s lawsuit got somewhat tangled in whether cornstarch powder would have served as a feasible alternative to asbestos-tainted talcum powder, as the plaintiffs argued. This point speaks to the requirement that the plaintiff prove not only that the defendant’s product was harmful, but also that there were alternative design options that would have been safer. The defendants argued corn starch would not have appealed to consumers the same as talcum did, but the court declared this to be irrelevant, with the only material issue being that the corn starch did present a safer alternative to talcum for the company’s product.
Johnson & Johnson also jumped on the fact that Ms. Olson failed to recall what was written on the powder’s warning label—presenting this foible as proof that failure to warn did not cause the plaintiff’s illness. However, Ms. Olson also testified that she immediately discarded all her talcum products when she first heard about the links to mesothelioma and ovarian cancer. The court interpreted this action as clear indication that had the plaintiff been warned about these risks by the defendant, she would have chosen not to use their products.
The court further upheld the plaintiff’s loss-of-companionship claim.
Furthermore, defendants will be held to paying punitive damages, due to their “reckless and reprehensible” behavior.
Johnson & Johnson did manage to eek one win from the court, which agreed that the amount of compensatory damages awarded to the Olson’s was excessive. This leaves the plaintiffs with a choice: they can agree to accept reduced compensatory awards as follows:
- $10 million, rather than $20 million for pain and suffering
- $3.5 million for future pain and suffering
- $1.2 million, rather than $5 million for loss of companionship
- $105 million, rather than $300 million, for punitive
Olson, like so many women of her generation, had been using Jonson’s Baby Powder from the age of 8 to well into her marriage. She described the cloud of powder that formed whenever shea applied the product—a familiar image to many of us. For Olson, breathing in the talc/asbestos powder proved particularly dangerous, with devastating results.