Talc-ing Nuclear Verdicts

Pharmaceutical and products giant Johnson & Johnson (J&J) received devastating news on June 1, 2021, when the U.S. Supreme Court refused to hear the company’s appeal of a $2.2 billion verdict in its ongoing baby powder battle.

While this will likely force J&J to pay the massive verdict without hope for a future appeal, the award is half of the original $4.7 billion Missouri jury verdict due only to the fact that the number of plaintiffs was reduced, and not because there was a reduction in the punitive or economic damages the jury awarded. Despite the reduction, this $2.2 billion award is just one of many recent nuclear verdicts—jury verdicts in excess of $10 million—sweeping the nation.

Could J&J have avoided this result? This case demonstrates how juror anger results in nuclear verdicts and what defense attorneys should do to defuse anger and stop runaway verdicts.

How Did Plaintiffs’ Lawyers Do It?

The suit originated when several women claimed that they developed ovarian cancer due to asbestos in J&J’s baby powder. According to plaintiffs, J&J knew about asbestos in the company’s baby powder but did not alter its formula or warn consumers of potential dangers.

Plaintiffs argued that J&J took illegal steps to conceal this information, lobbied to change existing talc regulations, and lied to government officials about the asbestos. They also accused J&J of providing the FDA with favorable test results showing no asbestos in its baby powder and concealing results indicating dangerous levels of asbestos.

Throughout trial, plaintiffs’ counsel argued that the defendants “knew of the presence of asbestos in products they knowingly targeted for sale to mothers and babies, knew of the damage their products caused, and misrepresented the safety of these products for decades.” Plaintiffs’ counsel argued that awarding significant damages against J&J would send “a clear message to the rich and powerful: You will be held to account when you cause grievous harm under our system of equal justice under law.”

The jury’s final verdict awarded plaintiffs $4.7 billion dollars, primarily in noneconomic damages. Plaintiffs’ counsel later characterized this nuclear verdict as a “victory for justice.” Was justice served, or was this another case of juror anger driving the dollar award?

What Caused This Nuclear Verdict?

Anger is the primary motivator of runaway jury verdicts in America. Based on plaintiffs’ counsel’s arguments, it is easy to see why jurors were enraged by J&J’s conduct and awarded plaintiffs billions of dollars in punitive damages. Was their rage justified? Unsurprisingly, the true events were far more complex than the plaintiffs’ attorneys described.

The defense presented highly technical arguments to the jury, including various studies concluding talcum powder was safe. Previous juries were convinced by this evidence in related trials across the country, too, since at least three juries found J&J’s baby powder did not contain asbestos, and others were unable to find a verdict against J&J. Why were jurors in this case unconvinced, and what could the defense have done differently? Here is where things went wrong.

The defense failed to accept responsibility. Throughout trial, the defense focused on the things that J&J did not have a responsibility to do. The defense said J&J did not have a responsibility to report outlying test results, to remove its baby powder from stores, or to take any other action based on available information. This only entrenched plaintiffs’ argument that J&J was shirking responsibilities to the public. Accepting responsibility is an effective method for defusing juror anger. When juror anger is defused, reasonable and rational thinking takes over. Had the defense accepted responsibility, a nuclear verdict could have been averted.

The defense failed to give a number. While plaintiffs’ attorneys threw out numbers throughout the trial, defense counsel did not provide its own number, instead pinning its hopes on the jury finding no liability. This leaves the jury to decide if the case is worth what the plaintiff is asking for or if it is worth nothing—there is no in between. Once jurors are angry, they will sway toward a plaintiff’s astronomical number. Giving a defense number early and often in trial primes the jury to return a reasonable and fair verdict instead of a nuclear verdict.

The defense failed to personalize the corporate client. The defense relied on studies and procedures to show that J&J technically did everything right, while plaintiffs’ counsel consistently portrayed J&J as a greedy corporation that put profits ahead of people.

As in this case, plaintiffs’ counsel often manipulates greed to fuel juror anger, while the defense’s fact-based interpretation lacks humanity. Jurors are people who relate to others, not multi-national conglomerates. It becomes a David vs. Goliath match up—the little guy facing the big, bad beast. Had the defense humanized the company at trial, jurors could have related to the employees behind J&J—the hard workers who care about people. The jurors should have learned about J&J’s contributions to the advancements in medical science throughout its 135-year history. It is harder for a jury to award a nuclear verdict against a personable corporation than a faceless one.

Ultimately, the defense relied on dry facts in a failed attempt to shift juror perception of the case rather than defuse juror anger. Plaintiffs’ emotional narrative proved to be more compelling for the jury.

The Trend Sweeping Our Justice System

Litigation trends show nuclear verdicts have become normalized in talcum powder cases. As of Feb. 17, 2021, over 27,000 lawsuits were pending in federal court regarding the use of talcum powder. Some of the largest verdicts from recent years include:

·     One plaintiff received a $417 million jury verdict after life-long talcum powder use.

·     One man was awarded $117 million after using talcum powder.

·     A St. Louis jury awarded $110 million to a woman who used talcum powder.

·     California juries awarded $29 million and $25 million to two women who used talcum powder.

·     Another jury awarded $72 million after a woman complained of health complications related to talcum powder use.

This is not just about baby powder. One report from The Wall Street Journal, “The Specter of Social Inflation Haunts Insurers,” showed that, across industries, nuclear verdicts have increased by 300% in the last 10 years. Plaintiffs’ attorneys are increasingly using manipulative tactics to prey on jurors’ emotions and fuel anger, deeming these new methods a “revolution” in the book, “Reptile: The 2009 Manual of the Plaintiff’s Revolution,” by David Ball and Don Keenan.

Takeaways

Most defendants realize the threat posed by nuclear verdicts and plaintiffs’ attorneys’ juror manipulation. Most agree that nuclear verdicts are unjust and dangerous. Still, a small number of defendants express doubt that juries and judges will allow a nuclear verdict. Some defendants and defense attorneys believe appellate courts will ultimately save the day.

The U.S. Supreme Court’s recent decision in the J&J case serves as a reminder that defense attorneys must not rely on appeals courts to clean up trial mistakes. Defense attorneys must revolutionize the way they defend cases to combat plaintiffs’ attorneys’ techniques. The following methods can be used to defuse juror anger and prevent nuclear verdicts:

Accept responsibility. When the defense denies all responsibility in a case, the jury looks for holes in the defendant’s argument. By accepting responsibility, defendants improve their credibility. One recent study by Freightwaves, entitled, “Are Nuclear Verdicts Out of Control?” looked at juror behavior and concluded that nuclear verdicts “typically occur because the jury determines that the defendant is willfully or purposely denying any responsibility or involvement in the accident.”

J&J could have accepted responsibility without admitting liability for:

·     Producing a safe product.

·     Rigorously testing that product.

·     Ensuring testing is representative of the product, rather than an outlier result.

·     Following laws and safety standards for its products.

·     Reporting or recalling any products known to be unsafe.

Always give a number. Defense attorneys often avoid providing a defense number during trial based on the fear that juries will refuse to deliver a defense verdict. This approach is flawed. Defense counsel who confront damages issues early and often at trial can, and do, obtain defense verdicts. In fact, studies have shown that juries do not see the presentation of a defense number lower than plaintiff’s number as a concession of liability. Contrary to popular belief, giving a number will not make the jury more likely to find liability; it will only work to decrease any potential damages award.

Personalize the corporate client. We live in a consumer-driven society. Despite the focus on brands and products, people do not consider what or who is behind these companies. Each company has employees, visions, and backstories of how the businesses transformed their communities. Here is what the jury should have known about J&J:

·     In 1886, when J&J was created, the founder established a credo stating that the company’s first responsibility was to customers. J&J still upholds this responsibility today.

·     J&J supplied first aid and assistance to first responders, troops overseas, and the Red Cross.

·     J&J is committed to health care industry innovation, and invests in young scientists and start-ups to provide customers cutting-edge medical technology.

·     J&J sponsored treatments for HIV and other illnesses, research to prevent disorders in children, and research regarding the prevention of cancer in women.

The J&J verdict is one example of how nuclear verdicts are on the rise nationwide. Appellate courts are not the answer to reversing these awards. Defense attorneys must change the way they argue a case before a jury and employ trial strategies to defuse juror anger by accepting responsibility, giving a number, and personalizing the corporate client to prevent nuclear verdicts and achieve justice for all.