Amicus Brief Urges Supreme Court To Review Junk Science “Talc” Litigation

April 5, 2021

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.  The Atlantic Legal Foundation (ALF) has filed an amicus brief, authored by Capital Appellate Advocacy founder and ALF Executive Vice President & General Counsel Larry Ebner, with the assistance of ALF Associate General Counsel Nishani Naidoo, 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.

Issue AreasSound science in the courtroom; free enterprise; civil justice

CaseJohnson & Johnson v. Ingham, No. 20-1223  (Supreme Court)

Questions Presented:

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 BriefThe amicus brief 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.          

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The Atlantic Legal Foundation is a national, nonprofit, nonpartisan, public interest law firm whose mission is to advocate for individual liberty, free enterprise, property rights, limited government, sound science in judicial and regulatory proceedings, and school choice.

Capital Appellate Advocacy founder Larry Ebner serves as Executive Vice President & General Counsel of the Atlantic Legal Foundation.