Unreliable Expert Opinion Does In California Talc Verdict

We are sure you all heard about the $417 million verdict returned recently against a talcum powder manufacturer in Los Angeles, and we are equally sure you heard about the trial court's order setting the verdict aside a couple of weeks ago and entering judgment in favor of the defendants. See In re Johnson & Johnson Talcum Powder Cases, No. BC628228, 2017 WL 4780572 (Cal. Superior Ct. Oct. 20, 2017). We will repeat that result because it's really important: The trial court did not just grant a new trial. It found that there was no substantial evidence to support the verdict and entered judgment for the defendants. Not another trial; a complete win on a post-trial motion, which is relatively rare under California procedure.

It is an important order for many reasons. In today's world of mass litigation, we often see cases involving the same products and similar allegations result in verdicts that vary—and sometimes they vary substantially. In cases alleging that talc products cause ovarian cancer, the results have been striking—ranging from a defense verdict in one case to the aforementioned nine-figure wreck in another.

What gives? Well, the trial court's order vacating the verdict paints a pretty clear picture of what happened in Los Angeles: The jury, goaded by improper argument from the plaintiff's counsel, ignored its instructions and spun out of control. We will explain the court's order in some detail below, but consider these nuggets:

The jury assessed 97 percent responsibility and $408 million in damages against a holding company for negligent failure to warn even though the company never made or sold one of the two products at issue and had not made the other since 1967, if ever. The jury awarded "compensatory" damages of $68 million against the holding company and $2 million against the product manufacturerfigures that are exactly proportional to each company's net worth. Hmm. It was undisputed that no study has ever shown that talc can cause ovarian cancer, and some studies on which the plaintiff's expert relied showed a relative risk in the range of 1.3, which tends to disprove causation. Yet, the jury found the products caused the disease. The plaintiff had one expert on specific causationthe plaintiff's treating physician, who conducted a hopelessly inconsistent "differential etiology" designed to reach her desired conclusion. There is much more to the order, but suffice it to say that this trial court exercised its duty to...