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After the highest appeals court in Missouri upheld a blockbuster verdict of $2.1 billion in damages awarded to 20 women diagnosed with ovarian cancer from Johnson & Johnson talcum powder, the manufacturer is making one final attempt to overturn the verdict, asking the U.S. Supreme Court to review the claim.
In July 2018, a Missouri jury awarded $4.7 billion to an original group of 22 women who indicated that they developed ovarian cancer following years of applying Baby Powder or other talc-based products for “feminine hygiene”. The jury awarded the landmark verdict after finding that Johnson & Johnson acted with reckless disregard for the health and safety of consumers, by withholding known information about the link between talcum powder and cancer.
The verdict was later reduced, and two of the claims were dismissed. However, the Missouri Court of Appeals ruled last year that Johnson & Johnson must pay $500 million in compensatory damages and another $1.62 billion in punitive to the remaining 20 women, finding that it was a reasonable inference for the jury to conclude from the evidence that the manufacturer’s actions were motivated by profits, and that the staggering damages were justified.
After the Missouri Supreme Court refused to consider a further review of the decision in November 2020, Johnson & Johnson was left with only one last avenue for appeal, asking the U.S. Supreme Court to grant a rare review, which many consider a “hail Mary” attempt by Johnson & Johnson to avoid or delay paying the verdict.
On March 2, Johnson & Johnson filed a Petition for a Writ of Certiorari with the U.S. Supreme Court, which are only granted in about 3% of all civil lawsuit appeals filed with the highest court in the country. In a press release announcing the filing, the company claims mistakes made during the trial should result in the verdict being overturned.
“This was a fundamentally flawed trial in which numerous legal errors allowed a faulty presentation of facts, resulting in an incorrect verdict and arbitrary and disproportionate damages,” the company said in the press release. The crux of their argument appears to focus on the trial involving nearly two dozen different plaintiffs, which the company says obscured difficult causation questions.
Although a number of different state court juries have reached similar conclusions that talcum powder caused cancer, Johnson & Johnson has continued to maintain the products are safe and has indicated it will continue to defend claims at trial. However, the final appeal to the U.S. Supreme Court from this early verdict comes just days after Johnson & Johnson told investors it was setting aside nearly $4 billion to cover expenses to resolve the talcum powder litigation.
There are currently about 25,000 Johnson’s Baby Powder lawsuits and Shower-to-Shower lawsuits filed by women nationwide, each involving similar allegations that regular use of the talc-based powder caused them to develop ovarian cancer and other injuries.
Most of the litigation is currently pending in the federal court system, where the manufacturer is expected to face a series of “bellwether” trials in coming years, unless talcum powder settlements are reached to resolve large numbers of claims or the manufacturer is able to establish that it can consistently defend the safety of its product before juries.