Product Liability & Mass Torts Digest

On March 2, 2021, Johnson & Johnson (J&J) filed a petition with the Supreme Court of the United States in a final attempt to appeal one of the largest product liability verdicts ever in the United States. In the past decade, over 20,000 plaintiffs have filed suit against J&J claiming that the company’s talcum powder caused ovarian cancer or mesothelioma.

On August 12, 2020, Johnson & Johnson requested review by the Missouri Supreme Court of a lower appellate court’s upholding $2.1 billion of the $4.7 billion jury verdict in favor of 22 women who alleged J&J’s talc powder caused their cancer.

On June 23, 2020, the Missouri Court of Appeals cut the damages award from $4.69 billion to approximately $2.12 billion in the 22-plaintiff talc product liability case, Robert Ingham, et al. v. Johnson & Johnson, et al.  The court rejected most of the ten points Johnson & Johnson (J&J) and Johnson & Johnson Consumer Companies Inc. (JJCI) raised on appeal, but said the trial court erred in finding personal jurisdiction over J&J and JJCI as to certain claims.

On June 4, 2020, the Secretary for the Department of Health and Human Services (HHS) issued a Second Amendment to the March 2020 Declaration Under the Public Readiness and Emergency Preparedness Act (PREP Act) for medical countermeasures against COVID-19.

Along with the expansive tort liability immunity offered by the recent Declaration of the Secretary of the Department of Health and Human Services (HHS), several states continue to expand immunity from liability for businesses and manufacturers during the COVID-19 pandemic.

As manufacturers and distributors of COVID-19 products respond to the pandemic, on April 14, 2020, the General Counsel for the Department of Health & Human Services (“HHS”) issued an Advisory Opinion in response to numerous requests for more clarity on the scope of immunity from tort and contract claims under the Public Readiness and Emergency Preparedness Act (“PREP Act”).

Manufacturers and distributors of COVID-19 products (or countermeasures) necessary to combat the spread of infectious disease are understandably concerned about potential liabilities. Online advertisements are already offering legal services to pursue product liability and other claims related to COVID-19 treatments.

Last Friday, the Eastern District of Missouri Appellate Court held oral arguments in an appeal by Johnson & Johnson (J&J) of a jury verdict for 22 plaintiffs who claimed that the company’s talcum powder caused ovarian cancer, Ingham v. Johnson & Johnson, No. ED107476. Although J&J’s appeal also asserted a lack of scientific evidence that talc causes ovarian cancer, the oral arguments centered around three issues.