Supreme Court of New York, New York County
In June 2019, we reported on the jury verdict in the Olson matter. Following the verdict, Defendants Johnson & Johnson and Johnson & Johnson Consumer, Inc. (J&J) moved to set aside the verdict and award under CPLR 4404(a). In the alternative, J&J moved for a new trial on liability and damages.
The court rejected J&J challenges to the award of compensatory damages as the jury’s verdict as to liability was supported by legally sufficient evidence. The jury found J&J liable on the plaintiffs’ defective-design claim and failure-to-warn claim. First, the court noted that the evidence presented at trial would allow a rational jury to conclude that Ms. Olson’s use of the Johnson’s Baby Powder and Shower to Shower products exposed her to asbestos. In addition, testimony from the plaintiffs’ expert witnesses showed that Ms. Olson was exposed to sufficient levels of asbestos to have caused her mesothelioma.
With regard to the design defect claim, the court set forth that a plaintiff must show that “the product, as designed, presents an unreasonable risk of harm to the user—i.e., that there was a substantial likelihood of harm and it was feasible to design the product in a safer manner.” The court held that the plaintiffs presented evidence, such as a flawed testing method, which would permit a rational jury to conclude that the design of the baby powder created a substantial risk of harm to its users. While the plaintiffs also presented evidence of a feasible alternative to talcum powder, in the form of cornstarch powder, J&J argued that cornstarch powder is a different product than talcum powder, rather than an alternative design. However, the court set forth that “the jury was not necessarily required to conclude that cornstarch-based baby powder was equally acceptable to consumers, and thus a safer design alternative to talcum powder for design-defect purposes. But J&J does not give a reason why the jury should be foreclosed from crediting this evidence, or from crediting plaintiffs’ showing about the risks from talcum powder and from J&J’s talcum-powder design in particular.”
With regard to the failure-to-warn claim, the court found that there was sufficient evidence for the jury to find that J&J had a duty to warn. J&J contended that the plaintiffs did not provide sufficient evidence that a failure to warn was the proximate cause of the injury as Ms. Olson could not recall the writing that appeared on the back of the baby powder containers during her deposition. The court noted that the “evidence shows only that absent a warning label Ms. Olson had not looked at or did not remember the details of Johnson’s Baby Powder or Shower to Shower packaging. It does not conclusively establish that Ms. Olson would have missed or ignored a warning had one been present.” Indeed, the court described Ms. Olson’s testimony that she threw out all of her baby powder bottles upon learning of a possible connection between talcum powder and cancer as “strong and immediate,” which suggests that Ms. Olson may not have missed or ignored a warning, if present.
Further, J&J’s argument as the insufficiency of the loss-of-companionship damages to Mr. Olson was unavailing. Specifically, the plaintiffs’ expert testified that the minimum latency period from exposure to diagnosis was 10 to 11 years, but that a latency period of 30 years was common. Using the 30-year period of 30 years, the court noted that Ms. Olson suffered contributing exposures in the first two years of her marriage. As such, “it was not irrational for the jury to have found that Ms. Olson’s injuries resulted in part from exposure to asbestos that occurred during her marriage, rather than exclusively before her marriage.”
The court also found that sufficient evidence was presented to support the jury’s finding that J&J’s conduct merited punitive damages. The court held that “the trial evidence in this case permitted … a rational jury to conclude that J&J’s … course of conduct would be sufficiently reckless and reprehensible to support the jury’s decision to award punitive damages.” The court also rejected J&J’s argument to set aside the verdict on weight-of-the-evidence grounds.
However, the court agreed with J&J’s contention that the compensatory award was excessive. As such, the court ordered a new trial on damages unless the plaintiffs stipulate to reduce the compensatory award to Ms. Olson from $20 million to $10 million for past and $3.5 million for future pain and suffering, reduce the compensatory award to Mr. Olson from $5 million to $1.2 million for loss of companionship and services and $300,000 for future pain and suffering, and to reduce the punitive award against defendants from $300 million to $105 million.