ALF Urges Supreme Court To Review Junk Science “Talc” Litigation
Personal injury lawyers have been filing thousands of lawsuits against Johnson & Johnson, alleging that its cosmetic talc products, such as Johnson’s Baby Powder, contain asbestos and cause ovarian cancer in women. In one of the most highly publicized talc suits, Ingham v. Johnson & Johnson, the notoriously plaintiff-friendly City of St. Louis state circuit court insisted on holding a single trial before a single jury for 22 dissimilar plaintiffs — each with different personal profiles (e.g., age, occupation, personal habits), genetic characteristics, medical histories, and alleged product usage and exposure patterns, and most with no relevant connection to Missouri.
Despite substantial scientific evidence failing to establish a link between women’s personal use of cosmetic talc products and ovarian cancer, the trial judge allowed the plaintiffs to present unreliable expert testimony to the contrary. The jury awarded each plaintiff $25 million in compensatory damages, and collective punitive damages totaling more than $4 billion – one of the largest product liability awards in U.S. history (an appellate court subsequently reduced the punitive damages to a still-whopping $1.6 billion). The Missouri Court of Appeals affirmed the judgment, and the Missouri Supreme Court refused to hear the case.
Johnson & Johnson now has filed a petition for a writ of certiorari requesting the U.S. Supreme Court to decide whether consolidation of the 22 disparate plaintiffs’ claims, and the excessive punitive damages awards, violated the company’s right to due process of law. ALF has filed an amicus brief discussing how junk science — such as the causation testimony presented by the plaintiffs’ experts — can confuse and mislead a jury and deprive a defendant of due process.
Free Enterprise, Sound Science
Johnson & Johnson v. Ingham, No. 20-1223 (Supreme Court) (petition stage)
Read the Amicus Brief:
1. Whether a court must assess if consolidating multiple plaintiffs for a single trial violates due process, or whether it can presume that jury instructions always cure both jury confusion and prejudice to the defendant.
2. Whether a punitive-damages award violates due process when it far exceeds a substantial compensatory-damages award, and whether the ratio of punitive to compensatory damages for jointly and severally liable defendants is calculated by assuming that each defendant will pay the entire compensatory award.
ALF’s Amicus Brief:
The amicus brief, authored by ALF Executive Vice President & General Counsel Larry Ebner with the assistance of ALF Associate General Counsel Nishani Naidoo, explains that junk science undermines due process by causing or exacerbating jury confusion and prejudice. Although most States, including Missouri, have adopted the principle — established by the U.S. Supreme Court in its Daubert trilogy and now codified in federal and state evidentiary rules — that trial courts must act as gatekeepers to ensure that only reliable expert testimony be presented to juries, the Missouri trial court failed to fulfill that crucial role in this case. As a result, the plaintiffs were permitted to present junk science causation testimony that glossed over the important differences among each of the plaintiffs.
The petition for a writ of certiorari was denied on June 1, 2021.