Johnson & Johnson and Johnson & Johnson Consumer Inc. (together J&J) have asked the nation’s high court to review several errors they claim a Missouri state appellate court made in affirming the consolidation of nearly two dozen personal injury cases for trial, and in upholding a $1.6 billion punitive damages award. The personal injury case centers on the consumers’ allegation that the defendants’ talc products, like baby powder, were contaminated with asbestos and caused the plaintiffs to contract ovarian cancer.
The petition for certiorari, filed last week, argues that J&J’s talc products, sold nationwide for decades, are safe. The plaintiffs’ contrary claims reportedly counter “the vast weight of scientific evidence,” and hinge upon “a winning formula” captained by certain plaintiffs’ lawyers. The attorneys’ purported strategy works by putting dozens of plaintiffs on the stand to discuss their experiences with cancer in plaintiff-friendly forums, to the detriment of mass tort defendants like itself, J&J contends.
Previously, the filing recounts, the Missouri trial court consolidated 22 plaintiffs’ personal injury claims, both varying in severity and arising under many different states’ laws, before a single jury. This “prejudicial joinder,” J&J claims is evinced by a damages award of $25 million for each plaintiff. In addition, because the court reportedly failed to mind “the fact that 17 plaintiffs brought into this mass trial did not reside in Missouri, did not purchase or use Petitioners’ products in Missouri, did not rely on any Missouri advertising in making their purchasing decisions, and were not injured in Missouri,” J&J asserts that its due process rights were infringed.
J&J also challenges the Missouri Court of Appeals’ confirmation of the ten-figure punitive damages award, which far exceeds the 1:1 ratio of punitive to compensatory damages set by some state and federal courts. The petition invites the Supreme Court to resolve the “disagreement” between courts by setting a standard ratio. The pharmaceutical company presents information reflecting how wildly the ratio varies across jurisdictions, and claims that consistency is needed to protect defendants from such constitutionally impermissible unpredictability.
In turn, J&J asks the justices to take up the case to “curb due-process abuses in mass-tort suits and ensure that state courts give mass-tort defendants the same rights as everyone else.” The respondents’ filing is due Apr. 5.
J&J is represented by Hogan Lovells US LLP and Orrick, Herrington & Sutcliffe LLP.
