(Reuters) – The biggest corporate trade groups in the country are urging the U.S. Supreme Court in Johnson & Johnson v. Ingham to shut down what they contend to be the latest looming threat from the plaintiffs bar: consolidated trials involving 10, 20 or even more claimants in a single trial. As courts confront COVID-19 backlogs, the groups said, it’s going to be tempting to resort to mass trials – but these consolidated proceedings, they warned, encroach on defendants’ due process rights.
Fourteen pro-business, defense counsel and conservative public interest groups weighed in on Friday and Monday with amicus briefs backing J&J’s petition for Supreme Court review of a Missouri state appellate court decision that resulted in a $2.1 billion judgment against the company. The judgment against J&J arose from a 2018 trial featuring claims by 22 women who alleged that they developed ovarian cancer after using J&J talc products that contained asbestos.
J&J maintains there is no credible scientific evidence its talc products were contaminated or can be linked to ovarian cancer. But according to its Supreme Court petition, the company’s defense was undermined by the consolidated proceeding, in which jurors heard emotional testimony from the most sympathetic plaintiffs and endured five hours of jury instructions on the laws of all of the plaintiffs’ different home states. In J&J’s telling, instead of focusing on the specifics of cases by 22 plaintiffs who used different J&J products and had an array of cancer risk profiles and disease outcomes, jurors simply awarded each of the women $25 million in compensatory damages — and socked the company with billions of dollars in punitive damages, to boot.
That’s not a just or, indeed, constitutional outcome, according to J&J’s Supreme Court counsel at Hogan Lovells. The company’s March 2 petition presented three questions: whether a mass trial violates a defendant’s due process rights; whether a punitive damages award that far exceeds compensatory damages is a due process violation; and whether the Missouri courts erred in concluding that out-of-state plaintiffs could establish jurisdiction merely by showing that a J&J talc product was packaged in Missouri by an unrelated company.
Consolidated jury trials involving claims by multiple defendants were once a regular feature of asbestos litigation, and much of the precedent J&J cites from state and federal courts that have curtailed multi-plaintiff jury trials comes from the days when courts were swamped with asbestos claims.
Mass trials are a rarer occurrence in recent years. The Product Liability Advisory Council, which represents 90 corporations, came up with only a few examples of recent consolidated trials in its amicus brief backing J&J, and each of those involved only four plaintiffs suing over pelvic mesh products.
J&J’s amici nevertheless warned the Supreme Court that COVID is going to give plaintiffs lawyers a new excuse to push for consolidated trials – which is why, they said, the Supreme Court must grant review of the J&J case. “The problem is likely to intensify if it is not urgently addressed,” argued a brief from a bevy of influential trade groups, including the U.S. Chamber of Commerce, the Business Roundtable, the National Association of Manufacturers and the Pharmaceutical Research and Manufacturers of America.
Several of J&J’s amici did highlight other issues. Two defense-lawyer groups, the Federation of Defense & Corporate Counsel and DRI-The Voice of the Defense Bar, honed in on the involvement of out-of-state plaintiffs in the J&J trial in Missouri, which the Federation’s counsel, Gallivan White & Boyd, called “a spectacular due process failure.” The Washington Legal Foundation, which describes itself as a free-enterprise public interest group, called for the Supreme Court to look at the punitive damages awarded against J&J, and the International Association of Defense Counsel focused on restricting plaintiffs’ alleged forum shopping.
But most of the corporate defense groups backing J&J seem to believe that the justices are most likely to be interested in whether mass trials compromise defendants’ due process rights. The brief by the Chamber and other groups, filed by Evan Trager of Mayer Brown, argued that mass trials compromise a defendant’s ability to make its case to the jury. When jurors hear causation evidence from dozens of plaintiffs, the brief argued, that sheer repetition is bound to create “false inference” of causation.
“The larger the cohort of plaintiffs, the more likely it becomes that the jurors will believe that it is simply ‘too much of a coincidence’ that every one of the plaintiffs used the product and then developed the disease,” the Chamber brief said. “That reasoning is scientifically unsound, but psychologically compelling when plaintiff after plaintiff conforms to the pattern.”
The Product Liability group, represented by Foley Hoag, cited a study comparing jury verdicts in multi-plaintiff asbestos trials in New York City between 2010 and 2014 with verdicts in trials involving just one plaintiff. Claimants in consolidated trials were vastly more likely to win, according to the brief – and to win big. The mean plaintiffs’ verdict in individual trials was about $9 million. In consolidated trials, the average plaintiff’s verdict was $23 million.
I emailed the plaintiffs’ Supreme Court counsel, Thomas Goldstein of Goldstein & Russell. He referred my query to plaintiffs’ lawyer Mark Lanier of The Lanier Law Firm, who said by email, “These time-worn amicus arguments attempt to rehash the trial on the merits. J&J still begs someone to buy their junk science and deceptive word games.”
J&J lawyers Neal Katyal and Sean Marotta declined to offer a statement on the amicus filings.
Plaintiffs have until May 5 to file a brief opposing Supreme Court review.
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