It was another win for the plaintiffs yesterday in the Mississippi-born Johnson & Johnson baby powder talc litigation. The latest verdict was $417 million a California jury awarded to a single plaintiff after a 4 week trial.
The plaintiffs have now won something like 5 of the 6 trials with most verdicts being massive. That is a ridiculous win percentage in products litigation with top-shelf defense counsel probably operating without a budget.
In big products liability litigation, the plaintiffs’ best chance to win is in one of the first trials. The defense improves the longer it goes and the more cases tried. Their experts get better and their lawyers get sharper from prior trials and massive focus group projects.
That the plaintiffs keep winning nearly every trial suggests that the J&J documents are bad. Real bad.
Sara Randazzo’s article in the WSJ made this astute observation:
Individual jury awards in mass tort litigation are idiosyncratic and are often reduced on appeal. At the same time, the outcome of early trials can give plaintiffs and defendants a better sense of how to value any eventual global settlement.
That sounds right. That trial cost J&J mid-seven figures in defense costs. They are probably also spending seven figures per month on attorney’s fees in the 5,000 pending cases. A rational defendant only does that when they believe they are working down the overall value of the case(s).
Johnson & Johnson is trying to win this litigation on causation. Sometimes liability facts overpower causation defenses. Particularly if there is a suggestion of a cover-up, which comes into play in failure to warn cases. Plus, sometimes you just lose on causation even when you love the defense.
The first time I got hit for six figures was a misfilled prescription case with admitted liability. We loved our causation defense. The jury…..not so much. John Giddens was the plaintiff’s lawyer. If he mentions that trial around others even half as much as he does me, then everyone is sick of hearing about it.
It would probably not be a bad idea for defense lawyers to always reduce their estimate for the strength of their causation defense by half. It’s probably not as strong as you think it is. A jury is not going to spend months or years obsessing on causation.
It’s just not going well for J&J. If they hoped to bleed the plaintiffs’ lawyers dry, it’s not going to work. Even if the plaintiffs’ lawyers couldn’t fund it themselves, they will not have trouble getting litigation financing with this string of verdicts. Other attorneys and hedge funds would line up to invest.
The big Supreme Court decision on venue helps J&J, but it doesn’t win the litigation. They need a kill shot on causation or a string of defense verdicts to lower the value of the inventory. Neither appears imminent.
The plaintiffs’ lawyers could actually put a lot of pressure on J&J by going to a 50-state litigation strategy and a full court press. I doubt they will because they would have to bring in a lot more lawyers, but I’d at least think about it if I were them.
This litigation is getting more interesting all the time. I’d love to know what is going on behind the scenes as far as settlement negotiations and focus groups.
It would not surprise me if both sides are running focus groups twice a month. And if I was in-house counsel managing huge litigation like that, I’d always have separate settlement counsel exploring opportunities to shut the litigation down.
It’s got to be a lot of fun for those involved on both sides.