Appeals court overturns $117 million Johnson & Johnson baby powder verdict

Mike Deak
MyCentralJersey.com

NEW BRUNSWICK – An appeals court has reversed a $117 million award on an Essex County couple's claim that the husband developed cancer after his long-term exposure to asbestos in Johnson & Johnson’s talcum powder-based products.

A Superior Court jury in Middlesex County awarded Stephen Lanzo III and his wife Kendra Lanzo, of Verona, $80 million in punitive damages and $37 million in compensatory damages from J&J and Imerys Talc America in an April 2018 trial.

But a state appellate court on Wednesday overturned the award and ordered new trials in the case.

J&J welcomed the court's opinion.

“The Appellate Division’s careful opinion is consistent with decades of independent scientific testing confirming our talc is safe, does not contain asbestos and does not cause cancer," the company said in a statement. "The court struck at the core strategy of the plaintiffs’ bar, concluding that paid experts are not allowed to present junk science that purports to find asbestos where there is none. These unproven theories have been the centerpiece of the talc litigation, and today’s opinion marks an important rejection of that approach."

The company added that "we deeply sympathize with anyone suffering from cancer, which is why the facts are so important."

The attorneys for the Lanzos were not immediately available for comment.

In December 2016, the Lanzos filed suit, claiming that Stephen Lanzo contracted mesothelioma from long-term use of Johnson Baby Powder and J&J's Shower to Shower talcum powder. Alleging the products contained asbestos, they filed suit against J&J and Imerys, a talc supplier, under the New Jersey Products Liability Act.

Mrs. Lanzo claimed loss of her spouse's services, society and consortium.

During the trial, J&J and Imerys asked Superior Court Judge Ana Viscomi to bar testimony from experts for the Lanzos. But the judge denied two requests and limited testimony from a third expert witness.

Toward the end of the trial, attorneys for the Lanzos asked the judge to impose sanctions on Imerys because it failed to produce certain talc samples and test data, plus its destruction of talc samples.

J&J then requested the judge to sever the claims against them and Imerys and asked for a mistrial. The judge refused.

Instead, Viscomi decided that she would give the jury an adverse inference as a sanction for Imerys' evidence. The judge told the jury it could "infer that the missing evidence may have been helpful to the (Lanzos’) case to the detriment of Imerys."

The judge also instructed the jury that J&J was not involved in the wrongful conduct.

The jury awarded Mr. Lanzo $30 million in compensatory damages and $7 million to his wife. The jury assigned 70% responsibility of the compensatory damage awards to J&J and 30% to Imerys.

Visomi then denied motions to dismiss the punitive claims. After evidence was presented, the jury awarded the Lanzos punitive damages of $55 million against J&J and $25 million against Imerys.

In its appeal, J&J argued that the judge had allowed unreliable expert testimony and had "undermined" its defense by denying a separate trial from Imerys.

J&J also argued that there was insufficient evidence to find that Mr. Lanzo's condition was caused by talcum powder and that the judge, in her instructions to the jury, limited their consideration of other potential causes for his illness.

In its 70-page decision, the appellate court focused on J&J's argument that it should have received a separate trial from Imerys.

The court ruled that Visomi's instruction was "unduly prejudicial" to J&J.

"We are convinced…that once the jury was permitted to draw an adverse inference that Imerys' talc was contaminated with asbestos, it would be difficult, if not impossible for the jury to make the same finding as to (J&J)," the court ruled. "We therefore conclude that the trial court erred by failing to sever the claims."

The appellate court did not rule on the other arguments of J&J's appeal.

In May 2020, J&J ended sales of its Johnson’s Baby Powder in the U.S. and Canada, where demand has dwindled amid thousands of lawsuits claiming it has caused cancer.

J&J has been faced with more than 19,000 lawsuits alleging its talcum powder caused users to develop ovarian cancer, through use for feminine hygiene, or mesothelioma, a cancer that strikes the lungs and other organs.

As of May 2020, of the cases that have been tried, J&J has had 12 wins, 15 losses and seven mistrials. All the losses have either been overturned on appeal or were in the appeal process.

Contributing: The Associated Press

Email: mdeak@mycentraljersey.com

Mike Deak is a reporter for mycentraljersey.com. To get unlimited access to his articles on Somerset and Hunterdon counties, please subscribe or activate your digital account today.