Johnson and Johnson have appealed to the Supreme Court to undo the $2 Billion verdict which was passed in favor of women who claimed they had developed ovarian cancer after using the company’s talcum powder. The Supreme Court said that the fate of the appeal would be decided only on Tuesday (June 2, 2021).
The dispute featured fierce legal firepower on both sides, with former acting Solicitor General, Neal Katyal arguing on behalf of the New Brunswick, New Jersey-based pharmaceutical maker, and Ken Starr, the former Whitewater prosecutor, representing women with ovarian cancer who sued the company.
When the matter came up for consideration on June 2, the Supreme Court rejected the appeal and announced through its order that it will not hear the case.
Johnson and Johnson, while citing past Supreme Court decisions, argued that the punitive damage awarded exceeds the actual damage by such a huge number so as to make it unconstitutional. The women contended that the company’s disregard for the health of its customers warranted the punitive damage award.
The company also pointed out that the trial judge at Missouri Court needed five hours to instruct the jury, and the panel deliberated less than 20 minutes on an average for each woman before awarding them identical awards regardless of their circumstances.
“If the due process clause means anything, it means that a defendant cannot be deprived of billions of dollars without a fair trial”, Johnson and Johnson argued.
Starr urged the judges not to review the case and the defendant company, “knew for decades that their talc product contained asbestos, a highly carcinogenic substance with no known safe exposure level”.”They could have protected customers by switching from talc to cornstarch, as their own scientists proposed as early as 1973. But talc was cheaper and petitioners were unwilling to sacrifice profits for a safer product”, he wrote.
Neal Kayatal argued that the reports of health organizations and epidemiological studies suggest “no meaningful association between cosmetic talc use and ovarian cancer”.
The judges set aside the appeal and left in place the Missouri State Court judgment.
The case had been filed by several women who claimed that they had developed ovarian cancer from using Johson and Johnson’s baby powder. Nine of the women have died from ovarian cancer.
The Missouri Court of Appeals, last year, had reduced the compensatory and punitive damages to be paid by the company to $2.12 Billion from $4.69 Billion, as had been originally decided by the Jury.
The Jury found that the company’s talc powder contains asbestos and asbestos-laced talc can cause ovarian cancer. Judge Rex M. Burlison noted that the evidence at the trial showed “particularly reprehensible conduct on the part of the Defendants”.
Johnson and Johson had disputed the claim.
“The matters that were before the court are related to legal procedures and not safety. Decades of independent scientific evaluations confirm Johnson’s Baby Powder is safe, does not contain asbestos, and does not cause cancer”, the company said.
The judgment read, “It is impossible to place a monetary value on the physical, mental and emotional anguish plaintiffs suffered because of their injury caused by the defendants. Because defendants are large, multi-billion-dollar corporations, we believe a large amount of punitive damages are necessary to have an effect in this case.”
Last year, the company had announced that it was discontinuing production of its talc-based baby powder in the US and Canada, in parts due to the constant barrage of litigation advertising over the product.