A “Number That Will Make Them Listen”: Jury Awards $750M in Punitive Damages Against Cosmetic Talc Defendants in Barden, et al. v. Johnson & Johnson

On February 6, 2020, a New Jersey Jury awarded a $750M punitive damages award against Johnson & Johnson and Johnson & Johnson Consumer Companies, the only two defendants at trial. The largest punitive award in a mesothelioma-cosmetic talc trial to date, the verdict was rendered during the second phase of a four-plaintiff consolidated trial, almost five months after a prior jury awarded Plaintiffs a $37.3M compensatory damages verdict. In the three-week punitive damages phase, closing arguments lasted two days, as Plaintiffs’ counsel did not finish his argument by the end of the first day. Jury deliberations took approximately two hours before the $750M verdict was issued. The Court reduced the award to $186.5M pursuant to the New Jersey Punitive Damages Act, which caps punitive damages to five times the amount of compensatory damages awarded or $350M, whichever is greater.

Plaintiffs Will Ronning, D’Angela McNeill-George, Douglas Barden and David Etheridge each filed separate actions against Defendants, alleging they contracted mesothelioma due to exposure to asbestos present in contaminated talc powder applied to them when they were infants. The Court, sua sponte, consolidated the actions for trial based upon shared disease and shared product exposure allegations, despite other factual distinctions and differences in counsel. Plaintiffs were represented by Chris Panatier of Simon Greenstone Panatier PC, Christopher Placitella of Cohen Placitella & Roth PC, and Moshe Maimon of Levy Konigsberg LLP.

Prior to closing arguments, the jury was shown an interrogatory answer from Defendants and video clips of testimony from two of Defendants’ witnesses: Dr. Joanne Waldstreicher from the company’s Office of the Chief Medical Officer and Dr. Susan Nicholson, Vice President of Woman’s Health in the company’s Medical Safety Organization. Plaintiffs presented these as evidence that Defendants’ CEO did not even bother to ask his own employees any questions regarding the alleged risks of asbestos in Baby Powder after Reuters published its December 2018 article.

Defendants’ Closing Arguments

Defendants presented their closing arguments first, represented by Allison Brown of Skadden Arps Slate Meagher & Flom LLP, and Morton Dubin of King & Spalding LLP (separate counsel from the compensatory phase of the trial).

Defendants’ closing arguments were split between Brown and Dubin. The main themes of their defense were the high burden of proof required for punitive damages; the importance of assessing Defendants’ knowledge and intent in determining whether punitive damages can be awarded; and Defendants’ testing, which they argued exceeded industry standards and showed there was no asbestos in their Baby Powder. In their closing, Defendants also addressed and attempted to rebut various internal documents Plaintiffs’ counsel had previously introduced as evidence in support of their case, arguing that the documents were cited out of context or did not support Plaintiffs’ theory that Baby Powder contained asbestos.

Brown began Defendants’ closing by stressing that the prior jury’s findings and award on compensatory damages were not enough to entitle Plaintiffs to punitive damages. Brown argued that the prior jury findings merely indicated that the jury disagreed with Defendants’ talc testing methods and interpretation of talc testing, but the evidence here showed there was no malicious, wanton or willful conduct on the part of Defendants. She told the jury that its task in this phase was to decide whether this is a truly exceptional case where there is “clear and convincing evidence” that Defendants either acted in an “evil-minded” manner, or engaged in a willful or wanton acts or omissions. She explained that willful or wanton conduct requires a showing that Defendants knew their acts or omissions created a high probability of harm to Plaintiffs. Brown emphasized that intent is a crucial requirement for punitive damages.

Brown argued that that talc has been tested for decades by government agencies, independent labs and scientists from major universities, and no one has found that it increases the risk of mesothelioma. She reminded the jury that Defendants brought two independent experts, Dr. Matthew Sanchez (Geologist) and Dr. Gregory Diette (Epidemiologist and lung disease specialist), who established that their Baby Powder was asbestos-free and that there is no adequate evidence that talc increases the risk of mesothelioma. She then emphasized that Plaintiffs failed to bring a single expert witness in support of their case.

Additionally, Brown reminded the jury that after three years of analyzing data and responding to consumer concerns, the U.S. Food and Drug Administration denied a petition to put a warning on Defendants’ cosmetic talc. She stressed that in its studies, the FDA assumed that Defendants’ cosmetic talc contained 0.1% asbestos, which was the worst-case scenario, and still decided it was not even necessary to place a warning on the product. Brown also argued that Defendants’ three witnesses, Dr. John Hopkins (former head of J&J’s Research and Development), Dr. Susan Nicholson (former head of consumer product safety), and CEO Alex Gorsky, showed that Defendants have made every effort to ensure the safety of their cosmetic talc.

Dubin then took over to discuss the rigorous testing Defendants conducted to demonstrate that Defendants took immediate action in response to concerns of asbestos hazard in their cosmetic talc. He argued that the fact that Defendants hired the best and most qualified scientists and researchers to test their talc demonstrates that they acted appropriately in response to consumer concerns about the presence of asbestos in their cosmetic talc. He explained that Defendants hired Fred Pooley as a researcher to test talc from its Italian mine in the 60s and 70s and shared those results with the FDA. He advised the jury that Pooley studied samples dating from 1949 to ensure there was no asbestos in Defendants’ cosmetic talc. He also cited to a 1976 study by Mount Sinai Hospital in support of Defendants’ arguments that their cosmetic talc was safe then and is safe now.

Further, Dubin went over studies of Defendants’ Vermont and China mines, which showed there was no asbestos in its talc. He discussed detection limits used in Defendants’ testing, explaining that they are a common and necessary approach among regulatory bodies to protect against “false positives.” He explained that without limits, scientists would miss the very things tests are designed to identify. Dubin also stressed that Defendants used geological methods, XDR and PLM, and then incorporated testing with highly sensitive microscopes to ensure its cosmetic talc was safe.

Dubin referred to a 1979 study by the National Institute for Occupational Safety and Health (NIOSH) and Harvard, which indicated that there was no asbestos in Defendants’ cosmetic talc. Dubin then urged the jury to ignore testing cited by Plaintiffs, arguing that it was based on methods rejected by the scientific community. He also urged the jury to question why the boards that Plaintiffs showed earlier during this phase of the trial did not mention testing results that came out negative for asbestos.

With respect to Defendants’ mine in China, Dubin told the jury that Dr. Sanchez tested that mine before Defendants started using it and even issued a recall before testing, in an overabundance of caution, to ensure its talc did not contain asbestos.

Addressing Plaintiffs’ allegations that Defendants’ Baby Powder contained tremolite, Dubin drew a distinction between asbestos and non-asbestos tremolite, stressing that the FDA clarified in the 1970s that non-asbestos tremolite is not harmful. He referred to internal company documents indicating there was no asbestos in Defendants’ cosmetic talc. He also criticized the XRD method of testing, arguing that it is incapable of distinguishing tremolite asbestos versus non-asbestos tremolite.

As she completed the last third of Defendants’ closing, Brown attempted to discredit Dr. Seymour Lewin’s statements that certain testing techniques showed asbestos in Defendants’ Baby Powder. She emphasized that Dr. Lewin retracted his initial statements, and that Defendants ran six tests using the same methodology Dr. Lewin had used in his testing and obtained negative asbestos results. She also stressed that the International Agency for Research on Cancer, which is part of the World Health Organization, tested talc and concluded there was inadequate evidence to classify non-asbestos talc as carcinogenic. She cited studies by additional experts as well and argued that studies of Vermont cosmetic talc miners followed for over 35 years showed that talc did not increase the risk of mesothelioma. In concluding, she emphasized that Defendants reasonably relied on studies they fully believed in and which indicated there was 99.9% certainty there was no asbestos in their cosmetic talc and, as a result, there was no basis for a punitive damage award.

Plaintiffs’ Closing Arguments

Placitella and Panatier delivered Plaintiffs’ closing arguments. Although Panatier repeatedly stated that this was not a “grand conspiracy case,” the idea of conspiracy did come across as a major theme in Plaintiffs’ closing. Placitella argued that the evidence showed that the companies’ leadership was aware that Defendants’ cosmetic talc had asbestos, knew that asbestos created an increased health risk to consumers, and instead of substituting talc with cornstarch, it concealed the truth about the safety of Baby Powder. Placitella argued that through willful actions and omissions, Defendants recklessly deprived Plaintiffs of their right to freedom from pain, right to pursuit of happiness and enjoyment of life. Throughout their closing, Plaintiffs’ attorneys emphasized that the jury was not being asked to find that regular workers of Defendants were to blame for Plaintiffs’ injuries, but it had a duty to hold accountable the dozen of executives who were allegedly controlling and guiding Defendants in the wrong direction.

Placitella started Plaintiffs’ closing arguments and focused on summarizing Plaintiffs’ medical history and treatment for mesothelioma. He reminded the jury that one of the plaintiffs, Ronning, passed away after the compensatory damages phase of the trial, and told the jury that the other Plaintiffs awaited the same fate.

He argued that this portion of the trial was about restitution and that the jury had a duty to punish Defendants if it found it had acted in a malicious manner, or engaged in wanton or willful conduct. He argued that Plaintiffs were not required to prove that Defendants deliberately intended to hurt Plaintiffs.

He attempted to discredit Defendants’ closing by stating that defense counsel employed “lawyer tricks” to misrepresent information and improperly cast doubt on the other jury’s finding during the compensatory damages phase of the trial without providing all of the evidence that jury was given. (Brown later moved for an instruction for the jury to disregard Panatier’s comments about “lawyer tricks.”)

Panatier and Placitella asked the jury to question why the labels in Defendants’ Baby Powder did not provide a complete list of the product’s ingredients. They claimed the powder contains tremolite, which is not mentioned anywhere in the labels. Panatier copiously repeated that examinations of Defendants’ ore from 1974 found asbestos in their cosmetic and industrial mines.

Panatier sought to discredit Defendants’ expert, Dr. Diette, by saying that he does not specialize in asbestos and he did not review internal company documents, which purportedly demonstrated that Defendants were aware that their Baby Powder has asbestos. Panatier drilled the idea that there is no safe level of asbestos for babies or children, although he did not cite to any studies or scientific material in support of that assertion. He discredited any studies indicating that asbestos levels in Defendants’ Baby Powder were well below OSHA guidelines, arguing that OSHA guidelines were meant for workers in the workplace, not children or babies. He stated that even if Defendants’ Baby Powder had small amounts of asbestos, the defense failed to address the effects of increased exposure to asbestos over time.

Additionally, Panatier sought to discredit J&J’s CEO by implying that he was hiding behind experts, and portrayed Dr. Sanchez as biased, implying that Defendants own him because they have retained him over 100 times. He stated that doctors have been saying since 1959 to “knock off the Baby Powder” but Defendants deliberately chose to ignore them. He then proceeded to accuse Defendants of lying at least three times, claimed that Defendants used the same mines to extract minerals used for both cosmetics and roofing materials, and stated that Defendants’ leadership “fixed the [asbestos] tests so they could pass them.” He claimed Defendants lied by (1) making statements that regulators never found asbestos, (2) backdating reports to conceal information, and (3) deleting information from reports regarding levels of tremolite and chrysolite found in their Baby Powder. He argued that Defendants’ asbestos tests for their cosmetic talc were designed to pick up a 0.5% level of asbestos only, ignoring any amount below that level. He further stated that Defendants lied by telling the public they had a “zero tolerance” policy towards asbestos and that their Baby Powder was asbestos-free.

He showed the jury internal documents discussing that the asbestos concentration testing technique could not be used because it was not in Defendants’ “worldwide interest.” The tests, he argued, were not designed to identify chrysolite at all. He also ridiculed Defendants’ tests, telling the jury that the total amount tested over years was the size of a mint, and Defendants only tested a pinch from 650 tons of talc every two weeks.

Panatier then claimed that at one point, Defendants started using chemical additives to get rid of asbestos in their cosmetic ore. Instead of using additives that would reduce asbestos levels by 20, Panatier claimed, Defendants chose to use an additive that reduced asbestos concentration by 7 times. He claimed Defendants chose the less aggressive method to avoid raising suspicion from government agencies and distrust from the public. He told the jury that Defendants targeted the most vulnerable population: innocent mothers and their babies.

On the second day for closing arguments, Panatier argued that each gram of Defendants’ Baby Powder had 13M fibers of asbestos, but instead of doing a recall, Defendants decided to keep this quiet. Panatier stated that Defendants stopped sharing information with the FDA after 1972. He said that instead of facing tests indicating that chrysolite asbestos were found in their Baby Powder, the company came up with a way to discredit the tests by claiming that the samples tested were contaminated. He claimed that Defendants’ “contamination theory ignored the laws of physics,” as the samples were kept under air hoods that pulled up contaminants.

He concluded by emphasizing that the purpose of punitive damages is to deter malicious, willful or wanton behavior. He argued that the evidence showed that Defendants at the very least recklessly disregarded Plaintiffs’ rights in failing to warn about the risks of using their cosmetic powder. Panatier urged the jury to issue a punitive damage award that would “make them listen,” and then provided the jury with Defendants’ alleged value: $73B in net worth, $155B in total assets, $2.6B in cash and $16B in cash equivalents. He then argued that although Defendants would have suffered almost no cost if they had just stopped producing Baby Powder, their priority was to protect their “golden egg” equity, which was the marketing of their brand based on the bond of trust between a mother and her child.

Jury Reactions and Deliberations

While the jury generally appeared attentive during Defendants’ closing argument, it visibly demonstrated a greater interest in Plaintiffs’ arguments. The jury appeared captivated by Plaintiffs’ counsel’s PowerPoint presentation, which highlighted sections of materials purported to be internal company documents, and also included slides with fictional text conversations between DEFENDANTS and the FDA, which basically implied that Defendants did not care to provide the FDA with information necessary to make an accurate assessment of the safety of their Baby Powder. Many jurors took notes during their closing and appeared very interested by the alleged internal documents Plaintiffs’ counsel showed.

Pursuant to Brown’s request, the jury was instructed to ignore Panatier’s argument that Defendants’ counsel used “lawyer tricks” to misrepresent information provided in their closing. The jury deliberated for almost two hours and unanimously found that Defendants engaged in conduct that was malicious, or willful and wanton. Eight out of ten jurors awarded $93.75M to each of the four plaintiffs as against each of the two defendants, amounting to a total award of $750M. After dismissing the jury, Judge Viscomi reduced the awards as follows, pursuant statutory limitations under New Jersey law: $36,250,000 for Plaintiff Barden, $47,250,000 for Plaintiff Etheridge, $73,500,000 for Plaintiff McNeil, and $29,500,000 for Plaintiff Ronning.

After the trial ended, Panatier told a news reporter that the jury conveyed a loud and clear message to Defendants’ leadership, after considering evidence which he believes clearly showed that at best, their leadership did not know what they were talking about and recklessly disregarded the safety of their consumers.