$325 Million Talc Mesothelioma Verdict Against Johnson & Johnson, Cut to $120 Million and Then Reversed on Causation

Donna Olson started using Johnson's Baby Powder as a small child in the late 1950s and kept using it, or the company's Shower to Shower, nearly every day for more than 50 years. In the early 1990s she powdered her own daughter with it. In 2016 she was diagnosed with pleural mesothelioma, a cancer of the lining of the lung that is caused by asbestos, and she underwent an extrapleural pneumonectomy, the removal of a diseased lung. She and her husband Robert sued Johnson & Johnson and its consumer subsidiary in Manhattan in 2017, in the coordinated New York City Asbestos Litigation docket, under the caption Olson v. Brenntag North America (Index No. 190328/2017).

The trial before Justice Manuel Mendez ran roughly three months in the spring of 2019. Mrs. Olson, then 66, was too sick to attend; her husband testified about her daily use of the powder, and the couple's expert William Longo told the jury he had found asbestos in samples of the company's talc. Johnson & Johnson insisted its talc was asbestos free and attacked Longo's testimony as false. Jerome H. Block of Levy Konigsberg tried the case for the Olsons, with co-counsel from Maune Raichle Hartley French & Mudd.

On May 22, 2019, the jury found the company liable and awarded $25 million in compensatory damages: $20 million to Donna Olson and $5 million to Robert Olson for loss of consortium. On May 31, 2019, after a punitive phase, the same jury added $300 million in punitive damages. The $325 million total was the largest talc verdict ever returned in New York and one of the largest against the company anywhere. Johnson & Johnson said the trial had suffered significant legal and evidentiary errors and promised to appeal.

Post-trial motions went to Justice Gerald Lebovits. On November 11, 2020 he upheld the liability finding, writing that the company had been knowingly deceitful about, or willfully blind to, the health risks of its talc, but he found the damages excessive. He ordered a new trial on damages unless the Olsons accepted $13.5 million for Mrs. Olson, $1.5 million for Mr. Olson and $105 million in punitive damages, a total of $120 million. They accepted, and judgment was entered on November 30, 2020.

The judgment did not survive appeal. On July 19, 2022, in Matter of New York City Asbestos Litigation (Olson), 207 AD3d 415, a unanimous panel of the Appellate Division, First Department reversed and directed entry of judgment for Johnson & Johnson. Relying on the Court of Appeals' April 2022 decision in Nemeth v. Brenntag North America, another Levy Konigsberg talc case, the court held that even assuming the plaintiffs' mineral expert had adequately estimated how much asbestos Mrs. Olson breathed each time she used the powder, their medical expert never set forth a scientific expression of the minimum lifetime exposure sufficient to cause mesothelioma. Testimony that the disease could result from a significant exposure above normal background levels was, the court said, not enough under New York's toxic tort causation standard. Nothing from the verdict stood.

The case remains a landmark on both ends: the largest single-plaintiff talc verdict in New York, and one of the decisions that, together with Nemeth, reset the causation proof New York courts now demand in asbestos and talc trials.