Just about a week after suffering its third punitive award in pelvic-mesh litigation, Johnson & Johnson found itself on the wrong end of a $105 million punitive award—close to 20 times the $5.4 million compensatory award—in litigation alleging that its iconic talcum powder causes ovarian cancer in women.
As in the pelvic-mesh litigation, this is one of several punitive awards arising out of the same product and claims—including $62 million and $50 million verdicts in the first half of 2016 and a $65 million verdict in October 2016—all imposed by St. Louis, Missouri juries in trials supervised by the same state-court judge.
By this point, what more is there to say beyond what we already have said in prior posts? Only this: Even if a Missouri court can exercise personal jurisdiction over out-of-state companies brought by out-of-state plaintiffs, due process almost surely forbids application of Missouri law to the controversy, including Missouri punitive damages law.
In this particular case, the claim was brought by a Virginia resident against a New Jersey defendant. Virginia has a strict $350,000 cap on punitive damages, while New Jersey caps punitive damages at five times the compensatory damages. If the St. Louis trial judge applies either state’s law in resolving the post-trial motions, J&J should, at minimum, see a dramatic reduction of the punitive damages.
Moreover, for reasons my colleagues and I have explained on numerous previous occasions, a ratio of 5:1 in a case like this one would almost certainly be unconstitutionally excessive, because if every plaintiff were to obtain a punitive award in that ratio to the compensatory damages, the aggregate punishment would far exceed any amount that could reasonably be thought necessary to punish and deter.
The appeal from one of the earlier verdicts was argued in the Missouri Court of Appeal on May 10. We will be watching what the appellate court does in that case with great interest.