By Brendan Pierson
Nov 6 (Reuters) - After a $67.5 million jury verdict against
Johnson & Johnson on Oct. 27 marked its third straight
trial defeat in an onslaught of lawsuits claiming its talc-based
products cause ovarian cancer, the company is hoping to reverse
the trend by having the cases heard in a different court.
All three awards, totaling around $195 million, were handed
down in state court in St. Louis, Missouri, with the same judge
presiding. Women or their families have filed 2,500 similar
claims, the vast majority in the same court, which is one of
several in the United States that attracts consumer lawsuits.
The plaintiffs claim studies show J&J's Baby Powder and
Shower to Shower products, when used in the vaginal area,
increase the risk of ovarian cancer. The company counters that
larger, more comprehensive studies show no such link.
In a court filing in August, J&J argued the case should be
dismissed because plaintiffs' lawyers tainted the St. Louis jury
pool. The company said the other side spent almost $10 million
on national and local television commercials in the previous
year, with a disproportionate share of them running in St.
Louis. The women's lawyers have denied J&J's claim.
The company also contended that, because most of them are
not from St. Louis and the New Jersey-based company has no
strong ties to the area, the cases should not have been heard
there. The judge rejected both arguments.
John Beisner, one of the top lawyers representing J&J, said
the company plans to make the same arguments to the Missouri
Court of Appeals. If the St. Louis court is found not to have
jurisdiction, the cases would have to be refiled elsewhere.
Beisner compared the St. Louis verdicts to a favorable
ruling in September from a state court judge in New Jersey. That
judge, who is presiding over some 200 talc cases, disqualified
the plaintiffs' experts on the grounds that their scientific
testimony was too speculative.
In the same decision, he dismissed the first two cases set
for trial and the ruling is being appealed.
J&J unsuccessfully tried to block the testimony of the
experts in St. Louis on similar grounds. The company will make
the same challenge on appeal, Beisner said.
Last week's $70 million verdict followed Missouri jury
awards of $72 million in February and $55 million in May.
The first big talc verdict in February was won by the family
of Jacqueline Fox, who died in October 2015. Their lawyers said
she used J&J Baby Powder and Shower to Shower Powder daily for
35 years for genital hygiene before she was diagnosed with
ovarian cancer in 2013.
Jere Beasley, whose firm has filed hundreds of talc cases,
including the three Missouri wins and two New Jersey dismissals,
said the verdicts should prompt J&J to make a deal.
"If I were representing them, I would say, folks, we need to
sit down and regroup and start trying to settle these cases," he
said.
LARGE VERDICTS
Large verdicts are relatively common in major product
liability cases, and they are often reduced or overturned on
appeal. One lawsuit against Merck & Co over its recalled
painkiller Vioxx produced a $253 million verdict in 2005, which
was thrown out three years later. Merck eventually settled most
Vioxx cases for $4.85 billion in 2007.
Shareholders in J&J, which had sales of $70 billion last
year, have so far shrugged off the three talc verdicts, the
first of the cases to go to trial. But if the trend continues,
liability could mount. The company has not reported setting
aside any litigation reserve to deal with talc cases, as it has
with previous claims over antipsychotic drug Rispardal and
recalled hip implants.
J&J no longer sells Shower to Shower, which was acquired by
Valeant Pharmaceuticals in 2012. Though not a major seller on
its own, Baby Powder is a recognized symbol of J&J's baby care
line, which brought in $2 billion in revenue in 2015.
Some legal experts said it made sense for J&J to fight on.
"Ordinarily I would say three verdicts like that would
prompt you to think about settlement," said University of
Georgia Law School professor Elizabeth Burch, who researches
product liability cases, but she said J&J's case is somewhat
different.
A settlement would not necessarily cap J&J's liability,
Burch said, because its talc products are still on the market,
unlike companies whose products have been recalled.
Howard Erichson, a professor at Fordham School of Law, said
the company also had valid concerns about the impact of a
settlement on its position in the market.
"This is not Vioxx. This is not asbestos," Erichson said.
"This is a case where the company wants to defend its brand, and
is not going to be anxious to announce a big settlement that
appears to concede that the product is harmful.
(Reporting By Brendan Pierson in New York; Editing by Anthony
Lin, Amy Stevens and Grant McCool)
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