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A look at the Johnson & Johnson defense strategy

Asbestos causes cancer. Scientists and the government have known this for decades. But they're not the only ones who knew this. The manufacturers of asbestos-laden materials also knew this.

Many of those manufacturers responded to the risks by changing their products or adding clear warnings to their labels. Others buried their heads in the sand. Even when their internal memos showed they knew their products might have asbestos and could put people at risk. So, when they get caught and need to pay for their wrongdoing, how do they react?

Johnson & Johnson appeals a Missouri verdict

Facing thousands of lawsuits tied to its talc products, Johnson & Johnson has not shown remorse. Instead, its lawyers and executives have continued to argue their products are perfectly safe. So, it seemed inevitable that when a Missouri court ordered Johnson & Johnson to pay just over $4 billion, the company would appeal.

The fact that Johnson & Johnson appealed the verdict is hardly surprising. The company has long pushed back against such claims as hard and as far as it could. However, it's somewhat interesting to explore how the company chose to push back. Its attorneys took something of a shotgun approach, filing ten complaints, perhaps hoping that one or more might hit and sink the case. They complained that:

  • The plaintiffs could file jointly
  • The court erred in overruling their objection to the plaintiffs' closing argument
  • The trial court didn't have jurisdiction
  • The court erred four times in admitting expert testimony
  • The court shouldn't have overruled their request for "directed verdicts" instead of a group verdict
  • The court should have separated the cases before awarding punitive damages
  • The punitive damages were so exaggerated as to be unconstitutional

In other words, Johnson & Johnson's lawyers wanted to force each plaintiff to fight separately, likely knowing the process might exhaust and discourage them. They wanted the plaintiffs to give up their fight. They attacked the expert testimony. They knew that getting the court to dismiss certain facts as incomplete or rooted in imperfect science would strengthen their efforts to write their version of the facts. And they attacked every technicality they could find, hoping to find and exploit any crack in the case.

What the appellate court's decision tells us

Fortunately for the plaintiffs, the Missouri appellate court denied most of Johnson & Johnson's complaints and upheld the verdict. However, the court ruled that Missouri had no personal jurisdiction over several plaintiffs from outside the state. Based on the court's finding of limited jurisdiction, it lowered the overall judgment against Johnson & Johnson from $4 billion to just over $2 billion.

For the victims, the court's decision to uphold the verdict is a win. The appellate court is the latest to rule against Johnson & Johnson, and the court inferred that they put profits over product safety. However, Johnson & Johnson have already made it clear they intend to appeal to the state's Supreme Court.

For victims, justice isn't just about proof

The people living with cancer who won this appeal should take heart. The facts and the law were once again on their side. However, as the case shows, their battle isn't over. Johnson & Johnson hopes to fight the case as hard and as far as it can. Some of the plaintiffs have already died in the meantime, and their families have had to step in.

For these victims, justice is about more than proof. It's about procedural details, crossing all the Ts and dotting the Is. And then, more than that, it's about patience, persistence and recovery.

 

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