Pandemic Won't Stop Arguments In J&J's $4.7B Talc Appeal

Law360 (March 26, 2020, 6:55 PM EDT) -- Despite the coronavirus pandemic, a Missouri appeals court on Wednesday set an April date to have a limited number of attorneys appear in person for oral arguments in Johnson & Johnson’s appeal of a $4.69 billion verdict on claims that asbestos in J&J’s talcum powder caused ovarian cancer.

Although the Missouri Supreme Court canceled all April arguments due to the coronavirus, the Eastern District Court of Appeal granted J&J’s motion to schedule oral arguments in its appeal and set them for April 24 at 10 a.m.

On March 16, the Supreme Court of Missouri ordered that all oral arguments during April would be canceled and those cases submitted on the briefs, as part of efforts to limit the spread of the novel coronavirus. The clerk for the appellate court overseeing J&J’s appeal issued an order that same day saying the parties could file a request to reschedule oral arguments if they still wished to hold them.

In a single-paragraph order, the appellate court on Wednesday held that only two lawyers for J&J and two lawyers for the plaintiffs who won the verdict will be allowed in the courtroom. The arguments will be livestreamed on the court’s Facebook page and recorded for posting on YouTube, according to the order.

The court also partially granted J&J’s request for additional time for its arguments, holding that both J&J and the women will get 30 minutes for their principal argument, and J&J will get six minutes for rebuttal.

J&J released a statement on Thursday saying the company remains confident that its products do not contain asbestos and do not cause ovarian cancer.

“We are grateful to the court for their time and look forward to a full appellate review,” J&J said. “We believe the trial was fraught with legal and evidentiary error and look forward to presenting those arguments to the court.”

Mark Lanier of Lanier Law Firm, who represented the plaintiffs at trial, said via email on Thursday that he was pleased to be going forward with the oral arguments. 

"The court has made a measured and responsible decision weighing the seriousness of [COVID]-19 with the truth that several plaintiffs have already died post trial, and those still alive are entitled to a just review of their cases," he said. 

Lanier said he did not know which two attorneys would be attending the arguments for the plaintiffs.

Those plaintiffs — a group of 29 people including women who got ovarian cancer, several of their husbands, and representatives for women who died of the disease — won the record-setting $4.69 billion verdict in July 2018 following a six-week trial in St. Louis Circuit Court. There were 22 women’s claims in the trial.

The jury unanimously held both J&J and its subsidiary J&J Consumer Inc. liable for strict liability and negligence as to all of the plaintiffs' injuries, awarding each woman suing on her own roughly $25 million, and awarding women who sued with their husbands roughly $12.5 million each. The total verdict amount was $550 million.

The jury awarded $4.14 billion total in punitive damages — $3.15 billion against J&J and $990 million against J&J Consumer.

The trial was the first time J&J had to face allegations that its talcum powder products both contained asbestos and caused ovarian cancer. The first wave of suits over the product alleged that the powder itself causes ovarian cancer, and were followed by a separate slew of suits alleging that asbestos in the product gave consumers the asbestos-related cancer mesothelioma.

In its 143-page opening appeal brief, J&J argued that when presented with 22 “heartrending stories,” it was easy for a lay jury to succumb to the “sophistry” of the plaintiffs’ counsel and overlook the scientific evidence.

“That 22 women who used the powders also developed cancer does not mean that the powders caused their cancer — any more than 22 people catching the flu after watching the Super Bowl means that the Super Bowl caused their flu,” J&J argued.

J&J argued on appeal that the trial should not have been allowed to proceed with so many plaintiffs. That the jurors awarded identical compensatory damage awards to each plaintiff despite their various unique circumstances demonstrates that the trial was unfair, according to J&J.

The plaintiffs are represented on appeal by Eric D. Holland, R. Seth Crompton and Patrick R. Dowd of Holland Law Firm LLC and Thomas K. Neill of Gray Ritter & Graham PC. There were represented at trial by Mark Lanier of Lanier Law Firm.

J&J is represented by E. Joshua Rosenkranz, Peter A. Bicks, Lisa T. Simpson, Naomi J. Scotten, Matthew L. Bush, Edmund Hirschfeld, Robert M. Loeb and Robbie Manhas of Orrick Herrington & Sutcliffe LLP and Thomas B. Weaver, William Ray Price Jr. and Paul Brusati of Armstrong Teasdale LLP.

The case is Ingham v. Johnson & Johnson et al., case number ED107476, in the Missouri Court of Appeals for the Eastern District.

--Editing by Alanna Weissman.

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