By Pamela C. Maloney, J.D.
A jury in New Jersey added $80 million in punitive damages to the $30 million in compensatory damages awarded on April 5 to a consumer who developed mesothelioma after using J&J’s talc baby powder, which contained asbestos. The jury also had awarded $7 million in loss of consortium damages to the consumer’s spouse. The compensatory award of $37 million was apportioned between Johnson & Johnson Consumer Inc. (J&J) and its talc supplier, Imerys Talc America, Inc., with 70 percent of the fault being assigned to J&J and the remaining 30 percent to Imerys. Following a separate hearing on the consumer’s request for punitive damages, the jury determined that evidence of both companies’ wanton and willful disregard for the consumer’s rights warranted punitive damages. In its verdict, the jury assessed $55 million in punitive damages against J&J and $25 million against Imerys (Lanzo v. Johnson & Johnson Consumer Inc., April 11, 2018).
According to the complaint, the consumer had regularly and frequently used and was exposed to J&J talc powder products since his birth in 1972, and his exposure to respirable asbestos fiber generated by the dust from those products caused him to develop mesothelioma. The complaint stated claims for product liability design defect and failure to warn, negligent failure to warn, negligent supply of a defective product, breach of express and implied warranties, and strict liability in tort. Charging that the defendants were jointly and severally liable for his injuries, the consumer sought compensatory and punitive damages and his wife sought damages for loss of consortium.
In support of his product liability claims, the consumer alleged that the ordinary and foreseeable use of asbestos-containing talc products constituted a dangerous and ultrahazardous activity and created an unreasonable risk of injury to users and bystanders. The complaint also stated that these products were incapable of being made safe for their ordinary and intended use and that the companies had failed to give any warnings or adequate and sufficient warnings or instructions about the risks, dangers, and harm associated with the use of these products.
The punitive damages claim was supported by allegations that J&J and Imerys willfully, wantonly, and intentionally withheld information from the consumer and the general public concerning (1) the known hazards associated with the use of and exposure to asbestos-containing talc and asbestos in general, and (2) the fact that inhalation of asbestos fibers could be fatal. The complaint further alleged that the defendants disseminated false product safety information and prevented the dissemination of information concerning the hazards and dangers of these products.
In awarding compensatory damages, the jury found that the risk of harm posed by these products outweighed their usefulness, and that J&J and Imerys had failed to adequately warn consumers that J&J’s talc baby powder contained asbestos. The jury further found that J&J and Imerys failed to prove, by a preponderance of the evidence, that they did not know about the risk of harm posed by these products and that there was no practical or feasible alternative design. Finally, the jury determined that the defective design of asbestos-containing talc powder and the failure to warn consumers about the risks associated with these products were substantial factors in causing the consumer’s mesothelioma.
According to a press release issued by the law firm representing the consumer, newly revealed confidential company documents showed that J&J knew as early as 1969 that its talc baby powder contained asbestos. Imerys company documents showed that asbestos had been discovered in Vermont talc mines in 1975, yet the company proceeded with its purchase of those mines and then sold the talc from those mines to J&J for use in its baby powder. The press release also pointed out that a safer alternative design using cornstarch instead of talc was available to J&J.
The case is Docket No. L-7385-16.
Attorneys: Joseph Satterley and Denyse Clancy (Kazan, McClain, Satterley & Greenwood, P.C.) for Stephen and Kendra Lanzo; Robert Brock (Kirkland & Ellis, LLP) for Johnson & Johnson. Scott Elder (Alston & Bird, LLP), Eric Falk (Rawle & Henderson, LLP) and John McMeekin (Rawle & Henderson, LLP) for Imerys Talc America, Inc.
Companies: Johnson & Johnson Consumer Inc.; Imerys Talc America, Inc.
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