1 Bart H. Williams(SBN 134009)
bwilliams@proskauer.com
2 Manuel F. Cachan(SBN 216987)
mcachan@proskauer.coin
3 PROSKAUER ROSE LLP
2049 Century Park East
4 Los Angeles, CA 90067-3206
Tel: 310-557-2900 I Fax: 310-557-2193
5
Michael C. Zellers(SBN 146904)
6
michael.zellers@tuckerellis.coin
TUCKER ELLIS LLP
7 515 South Flower Street, 42nd Floor
Los Angeles, CA 90071-2223
8 Tel:
213-430-3400 I Fax: 213-430-3409

G. Gregg Webb(SBN 298787)
gwebb@shb.com
SHOOK,HARDY & BACON LLP
One Montgomery, Suite 2700
San Francisco, CA 94104
Tel: 415-544-1900 Fax: 415-391-0281

9 Defendants'Lead Liaison Counsel

Defendants' Court Liaison Counsel

10 Kimberly A. Dunne(SBN 142721)
kdunne@sidley.coin
11 David R. Carpenter(SBN 230299)
drcarpenter@sidley.com
12 SIDLEY AUSTIN LLP
555 West Fifth Street
13 Los Angeles, CA 90013-1007
Tel: 213-896-6659 I Fax: 213-896-6600
14
Attorneys for Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc., formerly
15 known as Johnson & Johnsim Consumer Companies, Inc.
16
17

[Additional counsel listed below]
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

18
19 Coordination Proceeding
Special Title (Rule 3.550)
20
JOHNSON & JOHNSON TALCUM
CASES
POWDER
21
22

Case No. BC628228
JCCP NO.4872
DEFENDANTS'MOTIONS FOR NEW
TRIAL; COMBINED MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT
THEREOF

This document relates to:

Judge: Hon. Maren E. Nelson
Dept.:
307
Charmaine Lloyd, et al., v. Johnson & Johnson,
24 et al., Los Angeles County Superior Court, Case
Hearing: October 12,2017, 10:00 a.m.
No. BC628228

23

25
Plaintiff Eva Echeverria ONLY
26
27
28
DEFENDANTS'MOTIONS FOR NEW TRIAL; COMBINED MEMORANDUM IN SUPPORT THEREOF

 1

NOTICE OF MOTION AND MOTION
TO THE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that, on October 12, 2017, at 10:00 a.m., or as soon thereafter as
the matter may be heard, in Department 307 of the above-referenced court, located at 600
Commonwealth Ave., Los Angeles, CA 90005, Defendant Johnson & Johnson and Defendant
Johnson & Johnson Consumer Inc. (collectively, "Defendants"), by and through their counsel of
record, each will and hereby does move this Court for a new trial setting aside the judgment
entered against each of them and in favor of Plaintiff Eva Echeverria on August 21, 2017, and
granting a new trial on the following grounds:
1_

Irregularity in the proceedings of the court, jury, and/or adverse party, or orders of
the court or abuse of discretion by which Defendants were prevented from having a
fair trial(CCP § 657(1));

2.

Misconduct ofthe jury(CCP § 657(2));

3.

Excessive damages(CCP § 657(5));

4.

Insufficiency of the evidence to justify the verdict, or the verdict is against the law
(CCP § 657(6)); and

5.

Error in law, occurring at the trial and excepted to by Defendants(CCP § 657(7)).

Defendants' motions are based on Defendants' previously filed Notices of Intention to
Move for New Trial, each of which is deemed pursuant to Code of Civil Procedure § 659(b)to be a
motion for a new trial on all grounds stated in said Notice; this Notice of Motion; the evidence
presented at trial; all pleadings, papers, files, and records in this action; the minutes of the Court;
the combined Memorandum of Points and Authorities attached hereto; the Declaration of Bart
Williams submitted herewith and the exhibits thereto; the Compendium of Trial Transcript
Excerpts submitted herewith; the Declarations of Juror Number One (M.M.) and Juror Number
Two (J.D.-H.) submitted herewith; and any such further evidence and argument that may properly
come before the Court at the hearing. The aforementioned materials on which these motions are
based comply with the applicable requirements of Code of Civil Procedure § 658 for a motion for
new trial on the grounds stated above.

NOTICE OF MOTION AND MOTION

 Where, as here, a party moves for both new trial and JNOV as alternative remedies, the
Court must rule on both motions at the same time. Civ. Proc. Code § 629(b). The Court's power
to grant these motions expires 60 days after service of notice of entry of judgment, which took
place on August 21, 2017. Accordingly, the last day for the Court to rule on the Motions will be
October 20, 2017.
DATED: September 15, 2017

PROSKAUER ROSE LLP

„1-W6List_-_L_
By:
Bart H. Williams(SBN 134009)
bwilliams@proskauer.com
Manuel F. Cachan(SBN 216987)
mcachan@proskauercom
PROSKAUER ROSE LLP
2049 Century Park East
Los Angeles, CA 90067-3206
Tel: 310-557-2900
Fax: 310-557-2193
G. Gregg Webb(SBN 298787)
g,webb@shb.corn
SHOOK,HARDY & BACON LLP
One Montgomery, Suite 2700
San Francisco, CA 94104
Tel: 415-544-1900
Fax:415-391-0281
Defendants' Court Liaison Counsel
Michael C. Zellers(SBN 146904)
michaeLzellers@tuckerellis.com
TUCKER ELLIS LLP
515 South Flower Street,42nd Floor
Los Angeles, CA 90071-2223
Tel: 213-430-3400
Fax: 213-430-3409
Defendants'Lead Liaison Counsel

ii
NOTICE OF MOTION AND MOTION

 1
2
3
4
5
6
7
8
9
10
11
12
13

Gene Williams (Admitted Pro Hac Vice)
gmwilliams@shb.coin
SHOOK,HARDY & BACON LLP
600 Travis Street, Suite 3400
Houston, TX 77002
Tel: 713-227-8008
Fax: 713-227-9508
Defendants' Co-Liaison Counsel
Kimberly A. Dunne(SBN 142721)
kdunne@sidley.com
David R. Carpenter(SBN 230299)
drcarpenter@sidley.com
SIDLEY AUSTIN LLP
555 West Fifth Street
Los Angeles, CA 90013
Tel: 213-896-6659
Fax: 213-896-6600
Attorneysfor Defendants Johnson & Johnson
and Johnson & Johnson Consumer Inc.formerly
known as Johnson & Johnson Consumer
Companies, Inc.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
iii
NOTICE OF MOTION AND MOTION

 1

TABLE OF CONTENTS

2 INTRODUCTION

1

3 FACTUAL BACKGROUND

2

4 ARGUMENT

3

5 I.

Sitting as The "Thirteenth Juror," the Court Should Order a New Trial Because the
Verdict Is Against the Weight ofthe Evidence.

3

6
A.

The Weight ofthe Evidence Does Not Show Causation.

3

1.

General Causation Was Not Established.

3

2.

Specific Causation Was Not Established.

7

7
8
9
B.
10

The Weight ofthe Evidence Did Not Establish a Duty to Warn as to Either
Defendant, but Counsel's Misstatements ofthe Law Likely Confused the
Jury

11
12

Defendants Are Entitled to a New Trial. Based on. Erroneous Rulings and Improper
Argument by Counsel.

10

13

A.

Errors Prejudicially Affected the Jury's Consideration of Causation

10

II.

14

1.

Dr. Yessaian's Testimony Should Have Been Excluded or Stricken.

10

15

2.

It Was Error to Instruct the Jury on CACI 431, Multiple Causation.

12

16

B.

The Jury Was Inflamed by the Erroneous Admission of Documents and
Plaintiff Counsel's Repeated Disregard for the Court's Limiting Instructions.

13

17
1.
18

The Court Erred in Allowing the Condom Article, Which Plaintiffs
Counsel Then Improperly Used for the Truth ofthe Matter of
Asserted

13

Plaintiff's Counsel Disregarded Limitations on the Use of
"Lobbying" Evidence, Resulting in a Verdict That Violates the First
Amendment

15

19
2.
20
21
III.

The Compensatory Damage Award Requires a New Trial.

17

A.

The Jury Engaged in Misconduct in Reaching the Compensatory Award.

17

B.

The Jury Improperly Based Compensatory Damages on Defendants' Net
Worth, Resulting in an Unsupported Apportionment of Fault.

18

On Its Face,the Compensatory Damage Award Is Excessive

19

22
23
24
25 •

C.

26 IV.

The Punitive Damages Verdict Requires a New Trial.

27

A.

The Punitive Damages Are Against the Weight of Evidence and Excessive.

20

28

B.

The Amount ofPunitive Damages Violates Due Process.

21

TABLE OF CONTENTS

20

 Due Process Limits the Ratio ofPunitive to Compensatory Damages
Particularly Where, as Here, Noneconomic Damages Are Substantial

22

2.

The Punitive Damages Here, if Any, Cannot Exceed a 1:1 Ratio.

23

3.

The Jury's Reliance on Defendants' High Net Worth—Particularly
the Net Worth of Johnson & Johnson—Violated Due Process.

24

1.

25

CONCLUSION

ii
TABLE OF CONTENTS

 1

TABLE OF AUTHORITIES
Page(s)

2
Cases
3
4

Allison v. McGhan Med. Corp.,
184 F.3d 1300(11th Cir. 1999)

6

5 Barrese v. Murray,
198 Cal. App. 4th 494(2011)
6
Blank v. Kirwan,
7
39 Cal. 3d 311 (1985)

3
16

8 BMW ofN. Am., Inc. v. Gore,
517 U.S. 559(1996)
9
Boerner v. Brown & Williamson Tobacco Co.,
10
394 F.3d 594(8th Cir. 2005)

21, 22,24
23

11 Bowman v. Wyatt,
186 Cal. App. 4th 286(2010)
12
Bullock v. Philip Morris USA, Inc.,
13
198 Cal. App. 4th 543(2011)

13
23

14 Carl v. Johnson & Johnson,
No. ATL-L-6546,2016 WL 4580145 (N.J. Super. Ct. Sept. 2,2016)
15
Carlin v. Superior Court,
16
13 Cal. 4th 1104(1996)
17 City ofLos Angeles v. Decker,
18 Cal. 3d 860(1977)
18
Cooper v. Takeda Pharms. Ain., Inc.,
19
239 Cal. App. 4th 555(2015)

6
10
10
7, 9, 12, 20

20 Daubert v. Merrell Dow Pharms., Inc.,
43 F.3d 1311 (9th Cir. 1995)
21
Dowhal v. SmithKline Beecham Consumer Healthcare,
22
32 Cal. 4th 910(2004)
23 DuPont Merck Pharm. Co. v. Superior Court,
78 Cal. App. 4th 562(2000)
24
Exxon Shipping Co. v. Baker,
25
554 U.S. 471 (2008)

7, 11
6, 10
16
23

26 Glastetter v. Novartis Pharms. Corp.,
252 F.3d 986(8th Cir. 2001)
27
Hernandez v. Cnty. ofLos Angeles,
28
226 Cal. App. 4th 1599(2014)

6
10
iii

TABLE OF AUTHORITIES

 1 In re Hitchings,
6 Cal. 4th 97(1993)
2
In re Lockheed Litig. Cases,
3
115 Cal. App. 4th 558 (2004)

18
11

4 In re Nexium (Esomeprazole)Prods. Liab. Litig.,
No. ML 12-2404,2014 WL 5313871 (C.D. Cal. Sept. 30, 2014)
5
aff'd 662 F. App'x 528 (9th Cir. 2016)
6 In re Zoloft (Sertaline Hydrocloride)Prods. Liab. Litig.,
26 F. Supp. 3d 449(E.D. Penn. 2014)
7
Jennings v. Palomar Pomerado Health Sys., Inc.,
8
114 Cal. App. 4th 1108(2003)
9 Jiminez v. Sears, Roebuck & Co.,
4 Cal. 3d 379(1971)
10
Jones v. Ortho Pharm. Corp.,
11
163 Cal. App. 3d 396(1985)

6
8
3, 5
3
3,5

12 Krouse v. Graham,
19 Cal. 3d 59(1977)
13
Lackner v. North,
14
135 Cal. App. 4th 1188(2006)

17, 18
20

15 Las Palmas Assocs. v. Las Palmas Ctr. Assocs.,
235 Cal. App. 3d 1220(1991)
16
LeMons v. Regents of Univ. ofCal.,
17
21 Cal. 3d 869(1978)

21
12

18 Lompe v. Sunridge Partners, LLC,
818 F.3d 1041 (10th Cir. 2016)
19
Love v. Wolf,
20
226 Cal. App. 2d 378(1964)

22
15, 17

21 Martinides v. Mayer,
208 Cal. App. 3d 1185(1989)
22
Moore v. City & Cnty. ofSan Francisco,
23
5 Cal. App. 3d 728(1970)

19
3

24 Neal v. Farmers Ins. Exch.,
21 Cal. 3d 910(1978)
25
People v. Lomax,
26
49 Cal. 4th 530(2010)

21
18

27 Premier Med. Mgmt. Sys., Inc. v. Cal. Ins. Guar. Ass'n,
136 Cal. App. 4th 464(2006)
28
iv
TABLE OF AUTHORITIES

16

 1 Ramirez v. Plough, Inc.,
6 Cal. 4th 539(1993)
2
Roby v. McKesson Corp.,
3
47 Cal. 4th 686(2009)

6
21, 22,24

4 Rosa v. Taser Intl, Inc.,
684 F.3d 941 (9th Cir. 2012)
5
Sanderson v. Intl Flavors & Fragrances, Inc.,
6
950 F. Supp. 981 (C.D. Cal. 1996)

9
12

7 Sargon Enters., Inc. v. Univ. ofS. Cal.,
55 Cal. 4th 747(2012)
8
Seifert v. Los Angeles Transit Lines,
9
56 Cal. 2d 498 (1961)

10
19

10 Simon v. San Paolo U.S Holding Co.,
35 Cal. 4th 1159(2005)
11
Soule v. Gen. Motors Corp.,
12
8 Cal. 4th 548(1994)

21, 22, 23
10

13 State Farm Mut. Auto. Ins. Co. v. Campbell,
538 U.S. 408(2003)
14
Trammell v. McDonnell Douglas Corp.,
15
163 Cal. App. 3d 157(1984)

21, 22, 23,24
18

16 Uriel v. Regents of Univ. ofCal.,
234 Cal. App. 4th 735(2015)
17
Valentine v. Baxter Healthcare Corp.,
18
68 Cal. App. 4th 1467(1999)

12
9

19 Yanez v. Plummer,
221 Cal. App. 4th 180(2013)
20
Statutes
21
21 U.S.C. § 333(f)(9)(a)
22
Civ. Code § 3294(c)(1)
23
Civ. Proc. Code § 657(1)
24
Civ. Proc. Code § 662.5
25
Evidence Code § 721
26
Other Authorities
27
Reference Manual on Scientific Evidence, Third Edition 618 & n.214(2011)
28
Restatement(Second) of Tort § 908 cmt. c, p. 466(1977)
v
TABLE OF AUTHORITIES

12

24
20
10
19, 20, 21, 25
14

7
22

 1 Restatement(Third) of Torts: Phys. & Emot. Harm § 28 cmt. 4(2010)
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
vi
TABLE OF AUTHORITIES

7

 INTRODUCTION
The jury's eye-popping $417 million verdict—one of the largest single-plaintiff verdicts in
the history of American law—is remarkable for more than just its patent excessiveness. The size of
the verdict, contrasted with the serious deficiencies in the evidence offered at trial, raise a broader
concern about runaway juries imposing staggering liability based on speculative science—a concern
that is amplified by the fact that this is only one of more than a thousand talc-related cases pending
nationwide. The verdict is seriously flawed in so many respects that it cries out for this Court's
intervention. As set forth in Defendants' motions for judgment notwithstanding with the verdict,
there is no substantial evidence to support the verdict, and the Court should enter judgment for
Defendants. Alternatively, the Court should grant a new trial on any of several grounds.
First, the verdict is against the weight of the evidence. It is the trial judge's "duty on motion
for a new trial to act as a thirteenth juror," serving as "the final check on a jury's findings of fact."
Armstrong v. Svoboda, 240 Cal. App. 2d 472, 473 (1966). Thus on a motion for new trial, unlike a
motion for JNOV, it is the right and the duty of the Court to assess and re-weigh the evidence. For
the reasons set forth in detail below, the jury's verdict is clearly against the weight of the evidence,
particularly with respect to the issues of general and specific causation and duty to warn.
Second, and independently, a new trial is warranted based on erroneous rulings and the
prejudicial misconduct of Plaintiffs counsel. As to causation, the Court should have excluded or
stricken the testimony of Dr. Yessaian, and the Court erred in instructing the jury on CACI 431
("Multiple Causation"), which did not apply on the facts. The Court also admitted, over Defendants'
objections, certain documents that Plaintiff's counsel then used to inflame the jury by repeatedly
disregarding the Court's limiting instructions as to their permissible use.
Third, the jury's award of $70 million in noneconomic damages cannot stand. As shown in
the jury declarations, the jury reached that number by improperly considering attorneys' fees, the
appeal process, and taxes, and by improperly setting damages as a percentage of each Defendants'
net worth: it awarded $68 million in compensatory damages against Johnson & Johnson based on its
$68 billion net worth, and $2 million against Johnson & Johnson Consumer Inc. ("JJCI") based on
its nearly $2 billion net worth. The result is an allocation of fault that is unsupported by any
1
DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 evidence and damages that are plainly excessive.
Fourth, the jury's award of $347 million in punitive damages shocks the conscience and
cannot stand. The punitive award is against the weight of the evidence and was the product of
improper argument by Plaintiff's counsel. It also violates due process, which, under the facts here,
limits any punitive award to, at most, a 1:1 ratio with compensatory damages.
FACTUAL BACKGROUND
JJCI manufactures and sells Johnson's Baby Powder and Shower-to-Shower, both of which
are cosmetic talc products. JJCI is a wholly owned subsidiary of Johnson & Johnson. Tr.3111:23112:10.1 Plaintiff Eva Echeverria testified that she used Johnson's Baby Powder throughout her
life and Shower-to-Shower for a brief time. She was diagnosed with serous invasive ovarian cancer
in 2007, Tr. 2570:9-2577:28, and contends that talc use was the cause.
Prior to trial, the Court granted in part and denied in part Defendants' motions in limine
seeking to exclude Plaintiff's experts. It permitted, subject to certain limits, Drs. Plunkett and
Siemiatycki to testify regarding general causation issues, Dr. Godleski to testify to the presence of
talc particles in Plaintiff's ovaries, and Dr. Yessaian to testify on specific causation. Exs. A-B.2
The case was submitted to the jury on August 16, 2017. After two days of deliberation, the
jury was at a 6-6 impasse. See Ex. NN (jury note); Decl. of Juror Number One ¶ 2 ("Juror #1
Decl."); Decl. of Juror Number Two ¶ 2("Juror #2 Decl."). On August 21, 2017,the jury returned a
9-3 verdict for Plaintiff for $417 million in damages: $68 million in noneconomic damages and $340
million in punitive damages against Johnson & Johnson; and $2 million in noneconomic damages
and $7 million in punitive damages against JJCI. Ex. 00; Tr.4169:27-4176:19.

1 "Tr." cites are to the Compendium of Trial Transcript Excerpts submitted for Defendants posttrial motions. "Ex." cites are to exhibits to the Declaration of Bart Williams("Williams Decl.").
2

Defendants preserve all objections and arguments they have previously raised with respect to the
pretrial and trial proceedings, any of which would afford grounds for ordering a new trial.
2.
DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 ARGUMENT
I.

Sitting as The "Thirteenth Juror," the Court Should Order a New Trial Because the
Verdict Is Against the Weight of the Evidence.
When a party seeks a new trial based on the sufficiency of the evidence, the trial court sits as

the "thirteenth juror" with "plenary" power to order a new trial when "the weight of the evidence
appears to be contrary to the jury's detennination." Barrese v. Murray, 198 Cal. App. 4th 494, 503
(2011). The Court "independently assess[es] the evidence supporting the verdict" and "has the
power to disbelieve witnesses, reweigh the evidence, and draw reasonable inferences therefrom
contrary to those of the trier of fact." Id. (internal citation and quotation omitted). "[I]t is not only
the right, but the duty, of a trial judge to give close attention to the evidence and to grant a new trial
if[s]he concludes that the jury was wrong factually." Armstrong, 240 Cal. App. 2d at 473(emphasis
added). The decision to order a new trial "rests so completely within the court's discretion that its
action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears."
Jiminez v. Sears, Roebuck & Co., 4 Cal. 3d 379, 387 (1971); see also Moore v. City & Cnty. ofSan
Francisco, 5 Cal. App. 3d 728, 739 (1970) (trial court will be "sustained in ordering a new trial"
"[i]f there is any evidence that would uphold and substantiate a verdict for the moving party").
A.

The Weight of the Evidence Does Not Show Causation.

Plaintiff was required to prove that it is more probable than not both that genital talc use is
capable of causing ovarian cancer and that it was a substantial factor in causing Plaintiffs cancer.
Tr.3932:17-23. If"the matter remains one of pure speculation or conjecture, or the probabilities are
at best evenly balanced," causation is not established. Jennings v. Palomar Pomerado Health Sys.,
Inc., 114 Cal. App. 4th 1108, 1118 (2003) (quotation omitted). "Mere possibility alone is
insufficient." Jones v. Ortho Pharm. Corp., 163 Cal. App. 3d 396,402(1985).
1.

General Causation Was Not Established.

The epidemiology studies fail to show a strong association between genital talc use and
ovarian cancer. The average relative risk/odds ratio for the epidemiology studies discussed at trial is
1.24-1.3, which is not a strong association. Tr.1398:23-1402:8, 2459:5-2461:13, 3700:10-3701:8. It
is undisputed that association is not causation, and the relatively weak associations observed could
3
DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 well be the result of chance, bias, and/or confounding. Tr.1443:12-1444:19 (referencing Ex. KK,L1769); Tr.2332:25-2345:18, 2430:12-28, 2456:19-2458:4, 2488:14-2489:13, 3178:22-3180:20,
3361:21-3370:19, 3700:10-3705:4 ("When you have a weak association, the existence of that
unknown confounder could easily push that 1.3 down to 1."). As the Food and Drug Administration
("FDA")found,"[s]everal of the studies acknowledge biases in the study design and no single study
has considered all the factors that potentially contribute to ovarian cancer, including selection bias
and/or uncontrolled confounding that result in spurious positive associations." Ex. M (P-47), at 4.
The results ofthe studies are inconsistent. A key measure of consistency under the BradfordHill tenets is if results are the same both "prospectively and retrospectively." Tr.1426:2-15; Ex. Q
(P-104), at 3. For talc studies, the prospective cohort studies have not shown a statistically
significant increased risk of ovarian cancer. Tr.1430:5-1433:5, 3714:2-3716:28. Even among casecontrol (retrospective) studies, the results are inconsistent, including between population-based and
hospital-based studies. Tr.1433:25-1438:5 (referencing Ex KK,L-1769), 3705:9-3707:19, 3176:143178:7. Over time, the studies have been trending toward showing no association. Tr.3361:2-20,
3721:10-3723:5. For example, a 2016 study by Daniel Cramer—the author of the earliest and
several other studies on which Plaintiff relies—found a risk ratio of 1.0, i.e. "null value," for
postmenopausal women who used talc for over 24 years and were not treated with hormone
replacement therapy. Tr.3603:12-3607:13.
The studies fail to establish a dose-response relationship. A dose-response relationship is
critical to showing causality because increased exposure to a carcinogen increases the risk of cancer.
Tr.3723:19-3724:1. According to Plaintiffs expert Dr. Siemiatycki, based on studies as of 2006,
"Where was no pattern whatsoever that was discernible between the amount of genital talc use and
the risk of ovarian cancer; indeed,"if anything .. . they probably pointed to downward trends rather
than upward trends." Tr.2389:21-2394:1 (emphasis added). The subsequent Terry 2013 study
similarly found that, among talc users, the trend across increasing lifetime number of applications
was not statistically significant. Tr.2389:21-2394:1. While Dr. Siemiatycki viewed Terry 2013 as
showing "compatibility" with a dose-response relationship, he agreed it was equally "compatible"
with no dose-response. Tr.2383:10-2389:5. Other testimony confirmed that evidence of a dose4
DEFENDANTS'MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 response is lacking and undermines the ability to find causality. Tr.2823:3-2824:9 (discussing Webb
2 2016, L-1811: "It is still uncertain whether the association is causal because there is little evidence
3 that risk increases with frequency and/or duration of talc use."); Tr.3182:14-3183:25, 3723:8-3736:2.
4 Because the data, at best, is equally consistent with no causal relationship as it is with a causal one,
5 then Plaintiff has, at most, only shown that talc is a "possible' cause of ovarian cancer and not a
6 "probable" one. See Jones, 163 Cal. App. 3d at 402;Jennings, 114 Cal. App. 4th at 1118.
7

No animal study has ever shown that talc causes ovarian cancer. See Tr.3186:11-3195:20

8 (discussing Hamilton 1984, among others). While Plaintiffs experts cited a 1992 study by the
9 National Toxicology Program ("NTP")finding lung cancer in a small number offemale rats exposed
10 to extreme levels of aerosolized talc, that study has been criticized as having no relevance to
11 humans. Tr.1239:23-27, 1253:26-1255:2, Tr.3186:11-3195:20; Ex. M (P-47); see also Tr.1270:1912 1276:28 (discussing 1995 Boorman study, finding no ovarian effect from talc exposure in rats who
13 were part of the NTP study).
14

The proposed biological mechanism is speculative. Plaintiff's experts hypothesize that talc

15 produces chronic inflammation, which in turn may cause ovarian cancer. While certain fowls of
16 inflammation are known to cause particular types of cancers, there is no evidence that the types of
17 inflammation purportedly induced by talc—macrophages, foreign body cells, or granulomas—cause
18 or contribute to ovarian cancer. Tr.3476:13-3480:23, 3492:20-26. Defense experts Drs. Felix and
19 Saenz provided uncontradicted testimony that in their clinical experience, having examined the
20 tissue of thousands of women with ovarian cancer, they had never observed chronic inflammation.
21 Tr.3464:9-3465:23, 3475:23-3480:23, 3492:20-26, 3536:4-13, 3567:12-3568:6, 3601:12-3602:1.
22 Plaintiff's experts admit their theory is merely a hypothesis that is unconfirmed by experiment or
23 observation. Tr.1359:3-10, 1363:12-19, 1383:3-9, 2483:11-2486:28. Indeed, the 2008 Merritt study
24 rejected this hypothesis, concluding that "chronic inflammation does not play a major role in the
25 development of ovarian cancer." Tr.1354:23-1357:9 (Ex. FF, L-811); see also Ex. M,P-47, at 3-5
26 (FDA:"A cogent biological mechanism by which talc might lead to ovarian cancer is lacking.").3
27

3 Dr. Plunkett cited certain cell studies as showing that talc can have adverse cellular effects, but

studies do not actually support the conclusion that talc causes the development of cancer
28 those

(cont'd)

5
DEFENDANTS'MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 1 Courts "warn against leaping from an accepted scientific premise to an unsupported one," Allison v.
McGhan Med. Corp., 184 F.3d 1300, 1314 (11th Cir. 1999)—here, from the premise that
inflammation causes certain cancers to the conclusion that talc-based inflammation causes ovarian
cancer—and routinely reject biological plausibility opinions based on a theory not substantiated by
scientific evidence.4
The consensus view in the regulatory, scientific, and medical community is that the science
does not support a causal relationship. In 2014, FDA reviewed the evidence in detail and found it to
be insufficient to show a causal relationship between talc use and ovarian cancer. Ex. M (P-47).
While the agency's views are not binding, they "deserve[] serious consideration," Ramirez v.
Plough, Inc., 6 Cal. 4th 539, 556 (1993), given "the FDA's scientific expertise." Dowhal v.
SmithKline Beecham Consumer Healthcare, 32 Cal. 4th 910, 929-32(2004).
FDA's conclusions are consistent with those of other agencies to have studied the issue.
When the International Agency for Research on Cancer ("IARC") looked at the scientific literature
in 2006, it found the evidence insufficient to show that talc was a known or probable cause of
ovarian cancer. Ex. J (P-29); Tr.1196:7-23, 1198:8-1200:2, 2162:18-2163:10, 2282:5-2283:28;
2285:23-26, 2291:15-23. The most recent Physician Data Query("PDQ") published by the National
Cancer Institute ("NCI") concludes that "[t]he weight of evidence does not support an association
between perineal talc exposure and an increased risk of ovarian cancer." Tr.1619:6-1620:8.
Talc is not recognized as an ovarian cancer risk factor by the Centers for Disease Control or
medical associations such as the American Congress of Obstetricians and Gynecologists("ACOG")
(cont'dfrom previous page)

cells. In fact, two of the studies she cites (but did not read prior to preparing her report) observed
that talc caused programmed cell death with regard to cancerous cells, while leaving healthy cells
alone. See, e.g., Tr.1317:17-1336:26, 1338:12-17, 1339:6-13.
4 See, e.g., Allison, 184 F.3d at 1318-20 (finding speculative theory that chronic inflammation from
silicone breast implant caused autoimmune disease); Carl v. Johnson & Johnson, No. ATL-L6546,2016 WL 4580145, at *16-17 (N.J. Super. Ct. Sept. 2, 2016)(rejecting biological plausibility
for talc); Glastetter v. Novartis Pharms. Corp., 252 F.3d 986, 989 (8th Cir. 2001) (affirming
rejection of biological plausibility opinion for which "medical reasoning appears sound, [but] its
major premise remains unproven"); In re Nexium (Esomeprazole) Prods. Liab. Litig., No. ML 122404, 2014 WL 5313871, at *3 (C.D. Cal. Sept. 30, 2014) •(excluding expert who discussed
"hypothetical mechanisms" but did "not present any evidence that Nexium behaves in the
hypothesized way in the real world"), ard 662 F. App'x 528 (9th Cir. 2016).
6
DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 1 or Society of Gynecologic Oncology ("SGO"). Tr.2714:2-2721:9, 3580:9-3590:5. No published,
2 peer-reviewed articles declare talc to cause ovarian cancer.

Tr.2276:21-2277:19, 2280:2-10,

3 3695:19-3696:7, 3749:12-3750:1. A recent study (Clyde 2017) supported by ACOG and co4 authored by plaintiff's expert Dr. Cramer, developed a comprehensive risk model for ovarian cancer.
5 It did not include or even consider talc as a risk factor, even though it considered as part of its
6 analysis studies that examined genital talc use and ovarian cancer. Tr.1448:26-1459:9.
7

In sum, the clear weight of the evidence does not support a causal relationship between

8 genital talc use and ovarian cancer in the general population.
9
10

2.

Specific Causation Was Not Established.

JJCI's Motion for JNOV also explains why Dr. Yessaian's testimony was insufficient, as a

11 matter of law, to prove specific causation. See JJCI Mot. for JNOV at 5-10. In short, the
12 epidemiology studies including the four studies forming the basis for her opinion—do not show a
13 relative risk over 2.0 for people who share Plaintiff's subtype of cancer (serous invasive) and
14 characteristics. Tr.2668:12-2673:9, 2896:1-28, 2897:1-16, 3602:19-3603:11, 3717:11-17. This
15 precludes Dr. Yessaian from using those studies as the basis to rule in talc as a probable cause of
16 Plaintiffs disease, Cooper v. Takeda Pharms. Am., Inc., 239 Cal. App. 4th 555, 593 (2015); and
17 "actually tends to disprove legal causation." Daubed v. Merrell Dow Pharms., Inc., 43 F.3d 1311,
18 1321 (9th Cir. 1995). Moreover, most ovarian cancer, cases are idiopathic. Tr.2865:8-2867:2,
19 2889:28-2890:4, 3457:13-3458:5. Because Dr. Yessaian had no other basis for viewing talc as a
20 probable cause—including no evidence of chronic inflammation in Plaintiffs ovaries, for example—
21 her inability to account for unknown etiology renders her differential etiology approach speculative.
22 See Restatement (Third) of Torts: Phys. & Emot. Harm § 28 cmt. 4 (2010); Reference Manual on
23 Scientific Evidence, Third Edition 618 & n.214(2011); JJCI Mot. for JNOV, at 9-10.
24

Additional reasons warrant striking Dr. Yessaian's testimony as speculative and unreliable,

25 and/or undeimine.the weight and credibility of Dr. Yessaian's opinion.
26

First, Dr. Yessaian only focused on studies that supported her conclusion while disregarding

27 any contradictory data, including more recent studies and cohort studies. She also ignored that the
28 studies she cited—particularly earlier ones like Cramer 1982 and Rosenblatt 1992—had obvious
7
DEFENDANTS'MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 limitations, including small sample sizes, wide confidence intervals, and risks of bias and
confounding. As Dr. Siemiatycki agreed, using "cherry-picked metrics or results from different
studies" to support a conclusion is not "good science." Tr.2428:16-26; In re Zoloft (Sertaline
Hydrocloride)Prods. Liab. Litig., 26 F. Supp. 3d 449, 460-62(E.D. Penn. 2014)(criticizing reliance
on "self-selected subset of supportive studies").
Second, even as to the four studies upon which she relied, Dr. Yessaian used only data or
metrics that she considered helpful to reaching her conclusion. For example, Dr. Yessaian's report
said she would apply the study data based on Plaintiffs estimated 30,000 lifetime genital
applications of talc. Ex. PP, at 8. That assumption, however, would have produced a statistically
insignificant risk ratio for Plaintiff under the Wu 2009 study. Tr.2908:6-2910:28. So, to find a
better odds ratio, she switched to a different measure of use (years)—which she had previously
deemed less accurate. When pressed at trial, Dr. Yessaian said the category for 50,000 lifetime
applications applied to Ms. Echeverria based on a "combination of her genital and non-genital use."
Id. Elsewhere at trial, however, she denied that it was even biologically plausible for talc to reach
the ovaries through non-genital applications. Tr.2802:8-12 (disputing Heller study).
Third, Dr. Yessaian had no reasoned basis for "ruling in" talc while "ruling out" other known
factors. The testimony established that a number of risk factors applied to Plaintiff, such as the
prevalence of cancer in her family, age, early menarche, and late childbirth, as well as obesity and
related issues of high dietary fat intake and. elevated estrogen levels. See Tr.2867:12-2886:5,
3573:4-23, 3577:2-12, 3600:2-3601:12. Dr. Yessaian did not even consider certain of these factors.
As to the others, she did not really "rule out" the factor but merely provided a conclusory, ipse dixit
assertion that it was not "the-more-probable-than-not cause." Tr.2883:2-22. That is not .a reliable
application of the differential etiology method, particularly when her assessment of the
"probabilities" was not based on actual calculations or statistical modeling. See Ex. D, at 10
(precluding Dr. Yessaian from assigning a specific odds ratio to Plaintiff).
Fourth, Dr. Yessaian's fundamental misunderstanding about how odds ratios affect
probabilities confirms that her causation opinion should be given no weight. At trial, Dr. Yessaian
reiterated her clearly erroneous assumption that an odds ratio of 1.51 was sufficient to find that talc
8
DEFENDANTS'MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 more probably that not caused Plaintiff's disease. Tr.2894:22-2895:8, 2902:15-19; cf. Cooper, 239
Cal. App. 4th at 593-94; Tr.2434:2-18, 3754:24-3759:10. That error deprives her of any authority to
opine that talc was a "probable cause of Plaintiffs cancer.
In contrast to the numerous flaws in Dr. Yessaian's testimony, Defendants' experts provided
persuasive testimony that there was no inflammation in Plaintiffs ovarian tissue, that most ovarian
cancer cases are idiopathic, and that Plaintiff had multiple risk factors that could account for her
disease, regardless of her talc use. As the thirteenth juror, the Court should find the evidence
insufficient to prove that talc use more probably than not caused Plaintiffs disease.
B.

The Weight of the Evidence Did Not Establish a Duty to Warn as to Either
Defendant, but Counsel's Misstatements of the Law Likely Confused the Jury.

The judgment should also be vacated because there is insufficient evidence of a duty to warn
in and before 2007, when Plaintiff was diagnosed with ovarian cancer. Plaintiff had to prove that
Defendants "knew or reasonably should have known that the [talc products] were dangerous or
likely to be dangerous," meaning that they would "in all probability, or probably, be dangerous."
Tr.3931:10-16.

This deteimination has to be based on "prevailing scientific and medical

knowledge." Valentine v. Baxter Healthcare Corp., 68 Cal. App. 4th 1467, 1483-84 (1999); Rosa v.
Taser Intl, Inc., 684 F.3d 941, 946-48 (9th Cir. 2012) (rejecting duty to warn where scientific
evidence did not establish a "causal link" at time of injury). As reflected in JJCI's Motion for
JNOV, prevailing scientific knowledge as of 2007 was not sufficient to show a probable causal link
between genital talc use and ovarian cancer, and the law does not impose a duty to warn as to
speculative risks. JJCI Mot.for JNOV at 10-14.
Even if the Court declines to grant JNOV, it should find on its independent review that the
evidence does not support a duty to warn as to either Defendant. The evidence is particularly
lacking as to Johnson & Johnson because JJCI has been the entity responsible for the manufacture,
sale, and labeling of the products since before there were any studies potentially linking talc and
ovarian cancer. See Johnson & Johnson Motion for JNOV, at 2-4; Tr.812:27-813:23, 852:18-853:1,
861:27-862:10, 863:18-22. Nor was there any evidence to support liability on an alter ego or agency
theory. Id..
9
DEFENDANTS'MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 The jury was likely confused by Plaintiff's counsel repeatedly suggesting that the possibility
of risk alone was sufficient to impose a duty to warn, to which Defendants objected and moved for a
mistrial. See Tr.656:15-657:6, 689:27-691:19 (requesting mistrial based on argument in opening
statement that a company has to warn if there is "increased risk" or "risk for ovarian cancer");
Tr.3997:19-3998:4, 4005:22-27 (closing argument). While that argument may appeal to a jury's
sympathies that companies should, out of an abundance of caution, provide warnings for any
possible risk, it is not the law. Plaintiffs proposed standard also raises the spectre of overwarning,
in which people are so inundated with warnings that the warnings become meaningless. See
Dowhal, 32 Cal. 4th at 931-32 (2004); Carlin v. Superior Court, 13 Cal. 4th 1104, 1115-16 (1996).
Counsel's refusal to abide by the Court's instructions warrants a new trial and, at a minimum,
confirms that the Court should perform an independent review ofthe evidence.
Defendants Are Entitled to a New Trial Based on Erroneous Rulings and Improper
Argument by Counsel.
Independently, the Court should order a new trial based on instructional error, evidentiary
issues, and improper argument by counsel. Each of these separately provides grounds for a new
trial where, as here, they are prejudicial to the result. Civ. Proc. Code § 657(1), (7); Soule v. Gen.
Motors Corp., 8 Cal. 4th 548, 580(1994)(jury instructions); Hernandez v. Cnty. ofLos Angeles, 226
Cal. App. 4th 1599, 1616 (2014)(erroneous admission of evidence); City ofLos Angeles v. Decker,
18 Cal. 3d 860, 870-72(1977)(prejudicial misconduct of counsel).
A.

Errors Prejudicially Affected the Jury's Consideration of Causation.

To recover, Plaintiff had to prove that talc was more likely than not a but-for cause of her
cancer. On this crucial issue, the Court should have excluded or stricken testimony from Dr.
Yessaian, and it erred in instructing the jury on CACI 431. By prejudicially affecting the jury's
consideration of specific causation, either error, standing alone, requires a new trial.
1.

Dr. Yessaian's Testimony Should Have Been Excluded or Stricken.

Courts play a critical "gatekeeping" role to ensure that the jury is not by misled by putative
experts. Sargon Enters., Inc. v. Univ. ofS. Cal., 55 Cal. 4th 747, 769-80 (2012). An expert must not
only have a methodology that is reliable in the abstract; she must apply the method in a sound way,
10
DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 and the materials she cites must actually support her conclusions. Id. at 770-71; In re Lockheed
Litig. Cases, 115 Cal. App. 4th 558, 565 (2004). Where an expert relies upon assumptions which
are not supported by the record, upon matters which are not reasonably relied upon by other experts,
or upon factors which are speculative, remote or conjectural, then [her] conclusion has no
evidentiary value." In re Lockheed, 115 Cal. App. 4th at 563.
As shown above, Dr. Yessaian—relying on the false assumption that an odds ratio of 1.51
was sufficient to show probability—had no basis to treat the epidemiology studies as supporting a
probability that talc caused Plaintiff's cancer. And she had no reasoned basis for ruling in talc as a
probable cause over other known or idiopathic causes. Her testimony should have been excluded.
Dr. Yessaian's testimony should also have been stricken when she violated the Court's order
limiting it. Before trial, the Court ruled that four epidemiology studies—Cramer 1982, Rosenblatt
1992, Cramer 1999, and Wu 2009—must "constitute the sole basis that Dr. Yessaian has for 'ruling
in' talc as the cause of Echeverria's cancer and ruling out the fact that the cancer may be idiopathic."
Ex. D, at 11. The Court allowed Dr. Yessaian to state that she reviewed .the epidemiological
literature on talc, "but in saying more probable than not," she could only rely on four specific
studies. Ex. D; Tr.5:5-19. The reason for this limitation is that the epidemiology studies generally,
including certain meta-analyses, showed a relative risk "well below the 2.0 more probable than not'
criteria required for specific causation." Ex. D, at 11. The Court ruled that Dr. Yessaian's opinion
"will not be excluded at this point, provided that she can opine based solely on the [four] studies
cited and no other matter." Id. (emphasis added).
Dr. Yessaian violated that order by testifying that the four epidemiology studies were "not
the sole epidemiology studies . . . on which [she] relied . . . to rule in talc as a more likely than not
cause of Ms. Echeverria's ovarian cancer." Tr.2820:11-15; see also Tr.2820:1-5. Instead, she
claimed to rely on other epidemiology studies with odds ratios of 1.2 to 1.3, because, in her view,
they showed an "increase in risk" that supported calling talc a probable cause of Plaintiffs disease.
Tr.2820:26-28. This testimony was fundamentally misleading. Case law and the laws of statistics
are clear that a risk ratio below 2.0 "actually tends to disprove causation" because it does not show a
doubling of the plaintiffs risk. Daubert,43 F.3d at 1321; Sanderson v. Intl Flavors & Fragrances,
11
DEFENDANTS'MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 1 Inc., 950 F. Supp. 981, 1000(C.D. Cal. 1996); Ex. at D,at 11.
2

Defendants moved to strike Dr. Yessaian's testimony on this basis, but the Court denied the

3 motion. Tr.2940:1-2953:28. Dr. Yessaian's violation of the Court's order, and her legally and
4 statistically flawed analysis of risk ratios, warrants a new trial.
5
6

2.

It Was Error to Instruct the Jury on CACI 431, Multiple Causation.

"As a general rule, it is improper to give an instruction which lacks support in the evidence,

7 even if the instruction correctly states the law." LeMons v. Regents of Univ. ofCaL, 21 Cal. 3d 869,
8 875 (1978). A new trial must be granted under Soule, "`[w]here it seems probable that the jury's
9 verdict may have been based on the erroneous instruction'"—an assessment that requires evaluating
10 "the evidence, counsel's arguments, the effect of other instructions, and any indication by the jury
11 itselfthat it was misled." 8 Cal. 4th at 574.
12

There was no factual basis for giving •CACI 431 here. CACI 431 covers the concept of

13 concurrent causes, where "[a] defendant's negligent conduct may combine with another factor to
14 cause harm." Yanez v. Plummer, 221 Cal. App. 4th 180, 187(2013)(cited in CACI 431 Sources of
15 Authority) (applying principle to allegations that negligence of attorney combined with others to
16 cause plaintiff's termination); see also Uriel v. Regents of Univ. ofCaL,234 Cal. App. 4th 735, 74617 47 (2015) ("concurrent cause" is defendant's negligence "operated in combination with other
18 causes"). Because Plaintiff did not present evidence to show any specific concurrent cause that
19 supposedly combined with talc to cause Plaintiffs ovarian cancer, the instruction was unwarranted.
20

Cooper, 239 Cal. App. 4th at 595-96, held that the plaintiff was entitled to CACI 431 in a

21 case involving claims that a prescription drug had caused plaintiffs bladder cancer. But Cooper is
22 distinguishable in a way that precisely illustrates the error in the instruction here. In that case, the
23 plaintiffs expert expressly "ruled in smoking as a cause of plaintiffs bladder cancer but testified
24 that defendant's drug was "the most substantial causative factor." Id. By contrast, Dr. Yessaian, did
25 not rule in other causes while opining that talc was the most substantial one. Instead, she perfolined
26 a purported differential etiology in which she claimed to have ruled out all other known factors as
27 causes and ruled in talc as "more probable than not the causing agent in Ms. Echeverria's developing
28 high-grade serous ovarian cancer." Tr.2676:1-3 (emphasis added); see also Tr.2929:21-2930:7
12
DEFENDANTS'MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 (opining "more probable than not, which means more than 50 percent likely that talc was the cause"
and all other risk factors were "less likely"(emphasis added)); Tr.2931:4-14 ("[T]alc stood out as the
more probable than cause for her developing serous invasive cancer.").
Indeed, the Court already precluded Drs. Yessaian and Cramer from testifying to the notion
that talc increased the risk of cancer by combining with other risk factors in a "synergistic" effect
Ex. A, at 7-8, 10 (July 10, 2017 Ruling). Further, neither Dr. Godleski nor Dr. Yessaian testified to
the biological plausibility of combined concurring causes in this case—i.e., that their hypothesized
mechanism of talc-induced inflammation would be accelerated by, or combine with, other causes of
cancer applicable to Plaintiff. Dr. Felix also provided uncontradicted testimony that talc-based
adhesions would not promote the growth of existing ovarian cancer. Tr.3535:8-16. In sum, Dr.
Yessaian's opinion was not that talc combined with other factors but that talc was the cause of
Plaintiff's disease. Cooper is therefore distinguishable, and the Court's initial instinct that CACI
431 was inapplicable was correct.
Giving the CACI 431 instruction likely prejudiced the result under the factors identified in
Soule. Plaintiff's counsel repeatedly referred to that instruction in closing argument. Tr.3954:5-17,
3993:28-3994:2, 3997:7-14. Although the Court also gave CACI 430 and a special instruction on
causation, CACI 431 had the effect of diluting Plaintiffs burden to show that talc was, more
probably than not, a "but for cause. Moreover, the jury, at a critical point in deliberations,
specifically discussed the multiple causation instruction. Juror #1 Decl. IN 2-3. Given the 9-3
verdict and evidence pointing against causation, it is reasonably probable that the jury would have
reached a different result if properly instructed. See Bowman v. Wyatt, 186 Cal. App. 4th 286, 304
(2010) (stating presumption that properly instructed jury would have believed aggrieved party's
evidence and reached a different result).
B.

The Jury Was Inflamed by the Erroneous Admission of Documents and Plaintiff
Counsel's Repeated Disregard for the Court's Limiting Instructions.
L

The Court Erred in Allowing the Condom Article, Which Plaintiffs
Counsel Then Improperly Used for the Truth of the Matter of Asserted.

Exhibit P-19 was a newspaper article published in 1996, entitled "Women's health concerns
prompt condom makers to stop using talc." Ex. G. Among other things, the article asserts (falsely)
13
DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 that "[c]oncern about talc as an ovarian carcinogen goes back 50 years in the medical literature," and
that condom makers removed talc from condoms in the 1990s for that reason. Id.
Plaintiff tried to introduce, through Dr. Plunkett, testimony that talc on the surface of
condoms presented a health risk; the. Court struck that testimony. Tr.994:25-997:12. When defense
expert Dr. Andersen was testifying, Plaintiff took another run at the issue by introducing Exhibit P19, the condom article. The alleged basis for introducing the condom article was that Dr. Plunkett
attached the article to her expert report. Tr.3395:9-3396:18. Dr. Andersen reviewed Dr. Plunkett's
attachments in preparing his rebuttal report, although he gave no weight to the newspaper article. Id.
Defendants objected to the document, but the Court overruled the objection on the ground that Dr.
Andersen purportedly "relied" on the article. Id.
The Court improperly allowed the document to be shown to the jury. It makes no sense that
Plaintiff was allowed to introduce, through Dr. Andersen, alleged facts she could not get in through
Dr. Plunkett, merely because Dr. Andersen read Dr. Plunkett's report. By that logic, a party could
fill its expert reports with hearsay and use all of that material, whenever a rebuttal expert is diligent
enough to read what he or she is rebutting. The condom article was not part ofthe testimony that Dr.
Plunkett actually gave at trial, was not shown to be a reliable source, and was not something that Dr.
Andersen referred to or relied on in fowling his own opinion at trial. The article therefore was not
the proper subject of cross-examination under Evidence Code section 721.
Worse yet, the article had nothing to do with cross-examining Dr. Andersen. That was a
pretext. Plaintiffs counsel did not ask Dr. Andersen a single question about the substance of the
article, other than to confinn that Dr. Andersen could "see what the article said. Tr.3397:7-22.
Counsel introduced the document for the truth of the matter asserted.
Although the Court gave a limiting instruction that the article could not be considered for the
truth of its statements, Tr.3928:10-21, Plaintiffs counsel repeatedly disregarded the limiting
instruction in closing argument. Counsel published the article, quoting for the hearsay purpose of
showing (falsely) that "c[c]oncem about talc as an ovarian carcinogen goes back 50 years in the
medical literature,'" which counsel told the jury was "1946." Tr.3947:21-3948:1. Defense counsel
objected that "the jury was instructed to disregard it for that purpose," but the Court overruled.the
14
DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 1 objection. Tr.3948:4-9. Plaintiff's counsel returned three more times to the article purportedly to
2 prove the actions of the condom industry in the 1990s. Tr.3950:14-15, 3995:25-26, 4003:3-6. The
3 closing argument confirms that, while counsel introduced P-19 under the pretext of cross-examining
4 an expert, the exhibit's sole use was to get inadmissible and unsubstantiated hearsay before the jury.
5

Plaintiff's publication and use of the condom article was severely prejudicial. The assertion

6 that concern "about talc as an ovarian carcinogen goes back 50 years in the medical literature was
7 unsupported by, and contrary to, the documents and testimony at trial. Establishing that false
8 timeline, however, enabled Plaintiff's counsel to suggest that company documents from the 1960s9 1970s reflected notice of a cancer risk, even though they nowhere refer to ovarian cancer.
10 Assertions about the condom industry in the 1990s likewise had no factual basis, but counsel
11 nonetheless used the exhibit to show liability and malice.
12

Even if a party has "elicited the evidence for a proper and limited purpose," that "does not

13 mean that . . . a party's attorney may thereupon, by argument, urge its reception by the jury for an
14 improper purpose." Love v. Wolf, 226 Cal. App. 2d 378, 389(1964)(ordering a new trial based on
15 attorney misconduct). As in Love, the disregard of Plaintiff's counsel for the Court's limiting
16 instruction was no accident. "It was committed by a seasoned and experienced trial lawyer and the
17 record leaves no doubt it was carefully contrived and calculated to produce a result. That sought-for
18 result was so to arouse and inflame the jury that it would render a large verdict. The verdict was a
19 large one; maximally so." Id. at 393-94(emphasis removed). A new trial is therefore required.
20
21

2.

Plaintiffs Counsel Disregarded Limitations on the Use of"Lobbying"
Evidence, Resulting in a Verdict That Violates the First Amendment.

A similar pattern occurred with Plaintiff's counsel's argument that Defendants should be
22
found liable and punished for engaging in First Amendment activity. The Court rejected Plaintiff's
23
theory of a "conspiracy" to influence regulatory agencies, such as NTP, because there was "no
24
evidence" that Defendants actually influenced these agencies, much less did so improperly, and it "is
25
really not appropriate to ask "folks to speculate about why NTP decided not to classify talc as a
26
carcinogen. Tr.1487:10-1488:5. The Court allowed in certain documents referring to attempts to
27
influence NTP or IARC (Ex. I, U, V, X (P-27, P-263, P-264, P-396)) for the purpose of showing
28
15
DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 1 Defendants' knowledge that talc was being considered as a carcinogen; but the Court instructed the
2 jury that advocacy to government agencies is protected by the First Amendment and cannot folin the
3 basis for liability. Tr.3933:13-21.5
4

In closing argument, however, Plaintiffs counsel disregarded that limiting instruction.

5 Counsel did not use the documents merely to show knowledge but to argue precisely what the Court
6 prohibited—that Defendants, with Imerys, had tainted NTP's review. Plaintiffs counsel asserted
7 that "if Johnson & Johnson would have just stayed out of it, let the scientists do their work at the
8 U.S. government, the NTP would have listed talc as a human carcinogen as far back as 2000."
9 Tr.3982:25-3984:1 (citing facsimile from Imerys (Luzenac) as proof that Defendants "fended off'
10 NTP). When defense counsel objected during closing argument that "there's no evidence" that had
11 Defendants influenced the NTP,Plaintiffs counsel shot back,"Yes,there is." Tr.4094:1-8, and then
12 proceeded to assert that documents proved this purported fact, despite the Court's sustaining the
13 objection. Tr.4094:10-14.6
14

Plaintiffs counsel also repeatedly insinuated that lobbying government agencies is nefarious.

15 He declared that Defendants "got to the NTP." Tr.4090:5-11. "They got to them. That's what
16 happened." Tr.4093:27-28; see also Tr.3989:24-3991:18 (referring to "fending off the NTP, or
17 assuring a good outcome," and then asking why a live Johnson & Johnson witness did not testify
18 because "I'm accusing them of some bad stuff I'm saying they have done some bad thing [sic], real
19 bad stuff).

Counsel argued that "what they've done to prevent regulation"—referring to

20 Defendants—was evidence of"reprehensible conduct" supporting punitive damages. Tr.3984:17-18;
21
5 See, e.g., Blank v. Kirwan, 39 Cal. 3d 311, 322 (1985) (applying Supreme Court's Noerrl
Pennington doctrine to affirm dismissal of complaint based on lobbying activity); Premier Med.
Sys., Inc. v. Cal. Ins. Guar. Ass'n, 136 Cal. App. 4th 464, 478 (2006)(Noerr/Pennington
23 Mgmt.
applies to any tort, and covers approaches to administrative agencies and commercial speech);
DuPont Merck Pharm. Co. v. Superior Court, 78 Cal. App. 4th 562, 564 (2000) ("statements
24
before regulatory bodies, the medical profession, and to the public in connection with one of its
pharmaceutical products" constitute acts in furtherance of right of petition and free speech under
25
anti-SLAPP statute).

22

Pri•or to trial, defense counsel objected to various "lobbying" documents, including P-27 and P396, because they included impeimissible hearsay and/or were prejudicial, and counsel also
27 objected and moved for a mistrial when Plaintiffs counsel argued about lobbying in opening
statement. Ex E; Tr.691:20-693:1.
28
26

6

16
DEFENDANTS'MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 1 see also Tr.4002:27-4003:2.
2

Counsels' conduct was repeated and unmistakably intentional.

Their improper tactics

3 included many ofthe sort identified in Love,226 Cal. App. at 390-91, such as improper assertions of
4 fact or comments on the evidence;7 ignoring sustained objections;8 telling a defense witness,"Your
5 counsel didn't want this to be shown" (Tr.3318:20-28); and arguing based on counsels' personal
6 views (e.g., Tr.670:2-15, 3978:4-8, 4083:3-16).• These improper tactics cause prejudice regardless of
7 objections or admonitions. As "any experienced trial lawyer kriows, multiple objections have a
8 tendency to alienate a jury's good will," and "an attempt to rectify repeated and resounding
9 misconduct by admonition is ... like trying to unring a bell." Love, 226 Cal. App. 2d at 391-92.
10

Given the size of the compensatory and punitive damage awards, it is obvious that counsel

11 succeeded in using constitutionally protected conduct to inflame the jury's passions. The verdict is
12 not only the product ofimproper attorney argument, it violates the First Amendment.
13 HI.

The Compensatory Damage Award Requires a New Trial.

14

The $70 million compensatory award cannot stand. It was the product ofjuror misconduct,

15 was improper based on Defendants' net worth resulting in an unsupported allocation of fault, and is
16 patently excessive.
17

A.

18

Under Evidence Code section 1150(a), "admissible evidence may be received as to

The Jury Engaged in Misconduct in Reaching the Compensatory Award.

19 statements made, or conduct, conditions, or events occurring, either within or without the jury room,
20 of such a character as is likely to have influenced the verdict improperly," although evidence is not
21 admissible "concerning the mental processes by which [the verdict] was determined." Juror
22 declarations are admissible to describe objectively ascertainable "overt acts," such as statements or
23 conduct "open to sight, hearing, and the other senses." Krouse v. Graham, 19 Cal. 3d 59, 80(1977).
24 "[J]uror misconduct raises a presumption of prejudice" requiring a new trial unless it is "rebutted by
25

E.g., Tr.3270:22-3271:1, 3276:19-23, 3338:19-3340:25, 3399:1-16, 3326:16-3327:13, 3611:273614:7;
see also Tr.3503:22-28 (asking Dr. Felix, "Do you know if Johnson & Johnson is ever
26
going to bring an epidemiologist in here to testify at trial?").

27

7

8 E.g., Tr.3261:27-3264:13 (objections

sustained to six straight questions about FDA regulations);
Tr.3973:1-27 (three straight questions with objections sustained as to Wu 2015).

28
17
DEFENDANTS'MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 proof that no prejudice actually resulted." In re Hitchings, 6 Cal. 4th 97, 118 (1993) (quotation
omitted).

The declaration of Juror Number One, the foreperson, and Juror Number Two,

demonstrates two foul's of misconduct, each of which requires a new trial.
First, the jurors voting in favor of liability discussed and reached agreement on increasing the
noneconomic damages to account for plaintiff's attorneys' fees, the appeal process, and taxes. Juror
#1 Decl. ¶ 4; Juror #2 Decl. ¶ 6. Because attorneys' fees are not recoverable in personal injury
actions, "Mil express agreement by the jurors to include such fees in their verdict, or extensive
discussion evidencing an implied agreement to that effect, constitutes misconduct requiring
reversal." Krouse, 19 Cal. 3d at 80-81. It is likewise misconduct for jurors to consider taxes.
Trammell v. McDonnell Douglas Corp., 163 Cal. App. 3d 157, 172 (1984) (affiii ling new trial
where jurors discussed including attorneys' fees and taxes in damages). By considering these
factors, the jurors also violated the Court's instructions. Tr.3935:8-23, 3938:23-26.
Second, after reaching a 9-3 vote on liability, plaintiff-favoring jurors excluded defensefavoring jurors from deliberating on the amount of damages. Juror #1 Decl. ¶ 5; Juror #2 Decl. ¶ 5.
Refusing to consider the views of other jurors violates the Court's instructions and reveals a form of
juror prejudice requiring a new trial. See CACI 5009;People v. Lomax,49 Cal. 4th 530, 589(2010).
It is established that jurors who vote against liability should still deliberate as to damages. The
exclusion of three jurors from deliberations on damages determinations deprived Defendants oftheir
state constitutional "right to a jury of .12 persons deliberating on all the issues."

Resch v.

Volkswagen ofAm, Inc., 36 Cal. 3d 676,682(1984)(citations and quotation marks omitted).
The jury's misconduct confirms the need for a new trial on all issues. It shows that passion
and prejudice tainted the verdict. The jury's patent failure to follow some of the Court's most
critical instructions makes unsound the inference that the jury properly followed other instructions,
such as the limiting instructions regarding P-19 (the condom article) or the instruction that argument
by counsel is not evidence.
B.

• The Jury Improperly Based Compensatory Damages on Defendants' Net
Worth, Resulting in an Unsupported Apportionment of Fault.

Another fundamental flaw in the verdict is that the jury improperly considered Defendants'
18
DEFENDANTS'MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 1 wealth for purposes of awarding compensatory damages. It awarded $68 million in noneconomic
2 damages against Johnson & Johnson, as compared to the company's $68 billion net worth, and it
3 awarded $2 million against JJCI, compared to JJCI's approximately $2 billion net worth. Compare
4 Ex.00(verdict), and Tr.3868:1-5; Juror #1 Decl. 16; Juror #2 Decl. II 7.
5

The jury's use of wealth to determine compensatory damages is itself improper and resulted

6 in an unsupported apportionment of fault: 97% of percent of compensatory damages were assigned
7 to Johnson & Johnson and only 3% to JJCI. There is no basis in the evidence for this result when
8 JJCI—not Johnson & Johnson has been solely responsible for the products at issue since before the
9 first study investigating a link between talc and ovarian cancer. See Johnson & Johns-on Mot. for
10 JNOV at 3-4. Even if there were a basis for liability as to Johnson & Johnson (and there is not),
11 there is no evidentiary basis to assign it 97% ofthe liability.
12

C.

13

As with its review of the verdict on liability, a trial judge evaluating damages "sits as a

On Its Face, the Compensatory Damage Award Is Excessive.

14 thirteenth juror with the power to weigh the evidence," and "[i]f he believes the damages awarded by
15 the jury to be excessive .. .[,] it becomes [her] duty to reduce them." Seffert v. Los Angeles Transit
16 Lines, 56 Cal. 2d 498, 505 (1961); see also Civ. Proc. Code § 662.5; Martinides v. Mayer, 208 Cal.
17 App. 3d 1185, 1196-98 (1989)(affirming trial court's reduction of damages despite fact that plaintiff
18 "sustained severe and disabling injuries," including permanent brain damage) In reviewing the
19 award, the Court may consider whether the damages were the product of passion and prejudice and
20 may consider amounts awarded in prior cases for similar injuries, although the awards in other cases
21 are not diapositive. See Seffert, 56 Cal. 2d at 507-08.
22

The damages here are grossly disproportionate to the verdicts in the prior talc-cancer cases

23 against Defendants, in which compensatory damages (including economic damages) ranged from
24 $2.575 million to $10 million, and averaged $5.75 million. See Exs. QQ-RR. Thus, the award
25 here—which does not even include any economic component—was twelve times higher than the
26 average ofthe prior cases and three times higher than all ofthe prior cases combined.
27

The damages are also excessive compared to noneconomic damages in other cases involving

28 cancer (such as mesothelioma, lymphoma, and bladder cancer), where recent verdicts in California
19
DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 1 Superior Court have ranged from $500,000 to $12.5 million and averaged $5 million— comparable
2 to the prior talc verdicts. See Williams Decl. ¶ 5 & Ex. RR (describing results from search in
3 Westlaw's "verdicts" database). In Cooper, 239 Cal. App. 4th at 561, the jury awarded a plaintiff
4 who developed bladder cancer $5 million.
5

Improper arguments by Plaintiff's counsel, discussed above, likely contributed to the

6 excessive damages by inflaming the jury. The declarations of Jurors #1 and #2, confirm that
7 passions were running high, particularly among plaintiff-favoring jurors, which is presumably,why
8 they sought to exclude defense-favoring jurors from damages deliberations. See Juror #1 Decl. ¶ 5;
9 see also id. ¶¶ 7-9; Juror #2 Decl. ¶ 5.
10

For all the reasons above, the compensatory damages award cannot stand. The Court has the

11 power to conditionally grant a new trial subject to a remittitur/reduction in damages. Civ. Proc.
12 Code § 662.5. But, it would not be able to increase the $2 million damage award against JJCI. Id.
13 There is no basis in the evidence to allocate more fault (if any) to Johnson & Johnson. Given the
14 weight of the evidence, the irregularities in the proceedings, and the jury misconduct, the excessive
15 damage award is symptomatic of fundamental problems tainting the verdict, the appropriate course
16 is to order a new trial on all issues.
17 IV.

The Punitive Damages Verdict Requires a New Trial.

18

A.

19

As noted in Defendants' motions for JNOV, the weight of the evidence cannot support the

The Punitive Damages Are Against the Weight of Evidence and Excessive.

20 punitive damages verdict against either Defendant. Plaintiff's proof falls far short of satisfying her
21 burden to show, by clear and convincing evidence, that Defendants acted with "malice"—meaning,
22 as pertinent here, that they engaged in "despicable conduct" which is carried on with a "willful and
23 conscious disregard of the rights or safety of others." See Civ. Code § 3294(c)(1)(emphasis added);
24 see also Lackner v. North, 135 Cal. App. 4th 1188, 1210 (2006) ("despicable conduct" means
25 "extreme conduct that is "`so vile, base, contemptible, miserable, wretched or loathsome that it
26 would be looked down upon and despised by ordinary decent people'"). Defendants' conduct—to
27 the extent Johnson & Johnson can be implicated at all—has been consistent with their reasonable
28 belief and the prevailing views of the scientific community and regulatory bodies that cosmetic talc
20
DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 is generally safe and there is insufficient evidence for a causal link between genital talc use and
ovarian cancer. See, e.g., Tr.981:21-982:24; Ex. H (P-20), at 2; Tr.1246:9-1253:8; JJCI Mot. for
JNOV at 10-14, Johnson & Johnson Mot. for JNOV at 3-4.
Even if punitive damages were allowed, the Court should reduce them as excessive because
the punitive damages were the product of passion and prejudice; were driven by improper arguments
of counsel seeking to punish Defendants for protected First Amendment activity; and exceed what is
necessary to punish and deter. See Neal v. Farmers Ins. Exch., 21 Cal. 3d 910, 927-28 (1978); Las
Palmas Assocs. v. Las Palmas Ctr. Assocs., 235 Cal. App. 3d 1220, 1236, 1255 (1991) (punitive
award must have deterrent effect without being excessive, and finding that $2 million "sends a
forceful message," even to a defendant worth $497 million); cf. Civ. Proc. Code § 662.5 (authorizing
court to conditionally grant new trial subject to remittitur). The punitive damages are so excessive
as to violate due process and require a new trial or reduction to a 1:1 ratio to any reduced amount of
compensatory damages..
B.

The Amount of Punitive Damages Violates Due Process.

Due process "prohibits the imposition of grossly excessive or arbitrary punishments" and
requires "fair notice not only of the conduct that will subject him to punishment, but also of the
severity of the penalty that a State may impose." State Farm Mut. Auto. Ins. Co. v. Campbell, 538
U.S. 408, 416-17 (2003)(quoted by Simon v. San Paolo U.S. Holding Co., 35 Cal. 4th 1159, 1171
(2005)). The Supreme Court has developed three guideposts for the due process review of punitive
damages: (1) the degree of reprehensibility; (2) the disparity between the actual or potential harm
suffered by the plaintiff and the punitive damages award; and (3) a comparison to civil penalties
authorized in comparable cases. Id. at 418 (citing BMW ofN. Am., Inc. v. Gore, 517 U.S. 559, 575
(1996)); Roby v. McKesson Corp., 47 Cal. 4th 686, 718-19 (2009); Simon, 35 Cal. 4th at 1172. "In
deciding whether an award of punitive damages is constitutionally excessive," the Court must review
the jury's award de novo based on its "independent assessment" of these factors, so as to "ensure
punitive damages are the product of the 'application of law, rather than a decisionmaker's caprice.'"
Simon, 35 Cal. 4th at 1172(quoting State Farm,538 U.S. at 418).

21
DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 Due Process Limits the Ratio of Punitive to Compensatory Damages
Particularly Where, as Here, Noneconomic Damages Are Substantial.
The second guidepost—the disparity between the punitive damages and harm to the
plaintiff—typically involves comparing the ratio of punitive to compensatory damages and is
"perhaps [the] most commonly cited indicium of an unreasonable or excessive punitive damages
award." Gore, 517 U.S. at 580. In State Farm,the Court explained based on historical practice that
a 4:1 ratio "might be close to the line of constitutional impropriety" in the normal course. 538 U.S.
at 425. Ratios in excess of 9:1 are inherently suspect. Simon, 35 Cal. 4th 1182. "Multipliers less
than nine or 10 are not, however, presumptively valid." Id. (emphasis added).
As pertinent here,"[w]hen compensatory damages are substantial, then a lesser ratio, perhaps
only equal to compensatory damages, can reach the outermost limit." State Farm, 538 U.S. at 425
(emphasis added). That is because a substantial compensatory award—particularly for noneconomic
harm—already includes components for "outrage and humiliation" that are "duplicated in the
punitive award." Id. at 426.9 Such an award already reflects "indignation at the defendant's act and
may be so large as to serve, itself, as a deterrent." Simon, 35 Cal. 4th at 1189.
Thus, for example in Roby, the California Supreme Court held that a 1:1 ratio was the
maximum where the plaintiff experienced severe harassment and disability discrimination that
caused her to forgo necessary medical treatment and left her suicidal and completely disabled. See
47 Cal. 4th at 686, 719. The Court reduced the punitive damages, finding that the award of $1.3
million for physical and emotional distress was "substantial" and already included "a punitive
component" based on "indignation." Id. at 718.
Across jurisdictions, courts have enforced a 1:1 ratio based on substantial compensatory
awards, even in cases involving severe personal injury. See, e.g., Lompe v. Sunridge Partners, LLC,
818 F.3d 1041, 1069-70 (10th Cir. 2016) (collecting cases; enforcing 1:1 ratio in case involving
permanent disabilities caused by carbon monoxide poisoning, where compensatory damages were
also State Farm, 538 U.S. at 426 ("`In many cases in which compensatory damages include
an amount for emotional distress, . . . there is no clear line of demarcation between punishment
and compensation and a verdict for a specified amount frequently includes elements of both.'")
(quoting Restatement(Second) of Torts § 908 cmt. c, p. 466 (1977)).
9 See

22
DEFENDANTS'MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 1 nearly $2 million and included $950,000 in emotional distress); Boerner v. Brown & Williamson
2 Tobacco Co., 394 F.3d 594, 602-03 (8th Cir. 2005)(although misleading consumers about health
3 risks of tobacco was "highly reprehensible and caused plaintiff's wife to suffer "a most painful,
4 lingering death," 1:1 ratio was maximum allowed given compensatory damages of $4,025,000).10
5
6

2.

The Punitive Damages Here,if Any, Cannot Exceed a 1:1 Ratio.

In this case, a 1:1 ratio of punitive to compensatory damages is the constitutional maximum.

7 The $70 million in noneconomic damages are clearly "substantial" and already include a "punitive
8 component" based on the jury's "indignation" for the conduct. State Farm, 538 U.S. at 426; Roby,
9 47 Cal. 4th at 718; Simon, 35 Cal. 4th at 1189, 1192. Plaintiff's counsel received a jury instruction
10 defining the noneconomic hauIl to include "mortification, shock, indignity, . . . terror, ordeal," and
11 "humiliation," Tr.3934:15-23 —precisely the components that are duplicated by a punitive damages
12 award. State Farm, 538 U.S. at 426. The compensatory damages also already are based on
13 Defendants' net worth. Juror #1 Decl. ¶IJ 6-7; Juror #2 Decl. 117.
14

The $347 million punitive damages award is 60-70 times the average compensatory damages

15 in the prior talc cases and in other cancer-related cases, demonstrating that it is "'arbitrary' and
16 violates the principles of "'fair notice.'" Simon, 35 Cal. 4th at 1171-72 (quoting State Farm, 5.38
17 U.S. at 416-17); see also Exxon Shipping Co. v. Baker, 554 U.S. 471, 499-501 (2008)(explaining
18 that the "real problem . . . is the stark unpredictability of punitive awards" and disparities in
19 comparable cases merely due to "the inherent uncertainty of the trial process"). Even if the
20 noneconomic damages were reduced by 90%, the compensatory damages would still be substantial
21 for State Farm purposes and require reduction ofthe punitive damages to a 1:1 ratio.
22

The other State Farm/Gore benchmarks confum that a 1:1 ratio is the maximum permitted.

23 Although this case involves a personal injury, reprehensibility cannot be considered "high" because,
24 as explained above, there was no evidence of an intent to harm or a campaign to deceive, as opposed
25
26 10 In contrast, in Bullock v. Philip Morris USA, Inc., 198 Cal. App. 4th 543, 566-67(2011), the jury
awarded only $100,000 for pain and suffering to a plaintiff with terminal lung cancer, and the court
27 approved a 16:1 ratio for punitive damages because the conduct was highly reprehensible, and the
compensatory award did not "contain any significant punitive element."
28
23
DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 to a bona fide disagreement about the science. See JJCI Mot. for JNOV at17-20. Indeed,
Defendants' conduct has been consistent with prevailing views of the scientific community and
regulatory bodies, and the products at issue did include safety warnings as to substantiated risks (i.e.,
risk of inhalation by children). The facts here do not justify liability for punitive damages at all, but
even if they did, reprehensibility cannot be deemed high or exceptional so as to exceed a 1:1 ratio.
The State Farm/Gore guideposts also require looking at the punitive award against
comparable civil penalties. In this case, the closest analogy would be to tobacco-products—i.e.,
regulations designed to prevent injuries from a known carcinogen. See 21 U.S.C. § 333(f)(9)(a).
Under that provision, the maximum civil penalty is $1,000,000 per proceeding. Id. The punitive
award here is 347 times that civil penalty, which confirms that the punitive damages in this case—if
they were appropriate at all—must be limited to an amount no more than the amount of the
compensatory award.
3.

The Jury's Reliance on Defendants' High Net Worth—Particularly the
Net Worth of Johnson & Johnson—Violated Due Process.

The jury's punitive damages award violated the Due Process Clause for the additional reason
that it was impeimissibly inflated based on Defendants' wealth. As the United States and California
Supreme Courts have recognized, courts must guard against the risk that "wealth 'provides an openended basis for inflating awards,'" as "the punitive damages award must not punish the defendant
simply for being wealthy." Roby, 47 Cal. 4th 719 (quoting Gore, 517 U.S. at 591 (Breyer, J.,
concurring)). Where, as here, the Supreme Court's due process guideposts require a 1:1 ratio of
punitive damages to compensatory damages,"[t]he wealth of a defendant cannot justify an otherwise
unconstitutional punitive damages aware and cannot "make up for the failure of other factors."
State Farm,538 U.S. 427-28 (quoting Gore, 517 U.S. at 591 (Breyer, J, concurring)).
Plaintiff's counsel made no suggestion to the jury that it tether the punitive damages to the
harm suffered by Plaintiff(as due process requires). Instead, Plaintiffs counsel asked the jury to set
punitive damages based solely on Defendants' high net worth—suggesting a patently
unconstitutional and unlawful amount of up to $7.5 billion for the Defendants combined based on
10%; of each of their net worths. Tr.4001:22-4002:18. By leading with such an outrageous figure,
24
DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 counsel made the other—lower punitive damage numbers he offered seem reasonable.. The jury
followed counsel's lead setting the punitive damages based solely on a particular percentage of the
Defendants' net worth, without considering whether that amount exceeded what was necessary to
punish and deter.
Other factors confirm why using Defendants' wealth as the basis to set punitive damages
violates due process. Defendants are facing other talc lawsuits and have been subject to punitive
damages in other suits. See Ex. QQ (compilation of prior talc verdicts). Pegging the punitive award
to a percentage of Defendants' net worth—rather than using the 1:1 ratio with harm to the specific
plaintiff in the given case—necessarily results in duplicative and cumulative punishment. Moreover,
it is improper and violates due process to inflate a punitive damages award based on the wealth of
the parent company, when (1) the subsidiary is the one responsible for marketing the products,(2)
neither alter ego nor agency liability were shown, and (3) the jury is already imposing punitive
damages on the subsidiary to punish it for that conduct and to deter its future practices.
The Court in its independent review should find that the weight of the evidence does not
support liability for punitive damages at all (and in particular against Johnson & Johnson), or at least
that the award is clearly excessive. While the Court may conditionally grant a new trial subject to
the acceptance of a remittitur, Civ. Proc. Code § 662.5, the circumstances here including the
upside-down nature ofthe allocation of fault—make it more appropriate to order a new trial entirely.
This is especially true because the issues relevant to punitive damages—including the scientific
evidence, the views of regulatory bodies, and the context for the internal documents—are
intertwined with the underlying liability issues. See Liodas v. Sahadi, 19 Cal. 3d 278, 286 (1977)
("When a limited retrial might be prejudicial to either party, the failure to grant a new trial on all of
the issues is an abuse of discretion.'"(internal citation omitted)).
CONCLUSION
For all of the foregoing reasons, Defendants respectfully request that the Court grant
Defendants' motions for new trial.

25
DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 1
2

DATED: September 15, 2017

PROSKAUER ROSE LLP

3
4
5
6
7
8
9
10
11
12
13
14
15

By:
Bart H. Williams(SBN 134009)
bwilliams@proskauercom
Manuel F. Cachan(SBN 216987)
mcachan@proskauercom
PROSKAUER ROSE LLP
2049 Century Park East
Los Angeles, CA 90067-3206
Tel: 310-557-2900
Fax: 310-557-2193
G. Gregg Webb(SBN 298787)
gwebb@shb.com
SHOOK,HARDY & BACON LLP
One Montgomery, Suite 2700
San Francisco, CA 94104
Tel: 415-544-1900
Fax:415-391-0281
Defendants' Court Liaison Counsel

16

20

Michael C. Zellers(SBN 146904)
michadzellers@tuckerellis.com
TUCKER ELLIS LLP
515 South Flower Street, 42nd Floor
Los Angeles, CA 90071-2223
Tel: 213-430-3400
Fax: 213-430-3409

21

Defendants'Lead Liaison Counsel

22

Gene Williams(Admitted Pro Hac Vice)
gmwilliams@shb.corn
SHOOK,HARDY & BACON LLP
600 Travis Street, Suite 3400
Houston, TX 77002
Tel: 713-227-8008
Fax: 713-227-9508

17
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19

23
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26

Defendants' Co-Liaison Counsel

27
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26
DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

 Kimberly A. Dunne(SBN 142721)
kdunne@sidley.
David R. Carpenter(SBN 230299)
drcarpenter@sidley.com
SIDLEY AUSTIN LLP
555 West Fifth Street
Los Angeles, CA 90013
Tel: 213-896-6659
Fax: 213-896-6600
Attorneysfor Defendants Johnson & Johnson
and Johnson & Johnson Consumer Inc.formerly
known as Johnson & Johnson Consumer
Companies, Inc.

27
DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTIONS FOR NEW TRIAL

  

Bart H. Williams(SBN 134009)
bwilliams@proskauercoin
Manuel F. Cachån(SBN 216987)
mcachan@proskauercoin
PROSKAlUER ROSE LLP
2049 Century Park East
Los Angeles, CA 90067-3206
Tel: 310-557-2900 I Fax: 310-557-2193
Michael C. Zellers(SBN 146904)
michadzellers@tuckerellis.corn
TUCKER ELLIS LLP
515 South Flower Street, 42nd Floor
Los Angeles, CA 90071-2223
Tel: 213-430-3400 I Fax: 213-430-3409

G. Gregg Webb(SBN 298787)
gwebb@shb.com
SHOOK,HARDY & BACON LLP
One Montgomery, Suite 2700
San Francisco, CA 94104
Tel: 415-544-1900 I Fax: 415-391-0281

Defendants'Lead Liaison Counsel

Defendants' Court Liaison Counsel

Kimberly A. Dunne(SBN 142721)
kdunne@sidley.corn
David R. Carpenter(SBN 230299)
drcarpenter@sidley.coin
SIDLEY AUSTIN LLP
555 West Fifth Street
Los Angeles, CA 90013-1007
Tel: 213-896-6659 I Fax: 213-896-6600
Attorneys for Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc. formerly
known as Johnson & Johnson Consumer Companies, Inc.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
Case No. BC628228

Coordination Proceeding
Special Title (Rule 3.550)

JCCP NO.4872
JOHNSON & JOHNSON TALCUM
POWDER CASES

DECLARATION OF JUROR NUMBER
ONE

This document relates to:
Charmaine Lloyd, et al., v. Johnson & Johnson, Judge:
Dept.:
et. al., Los Angeles County Superior Court,
Case No. BC628228

Hon. Maren E. Nelson
307

Plaintiff Eva Echeverria ONLY

1
DECLARATION OF JUROR NUMBER ONE(M.M.)

 DECLARATION OF JUROR NUMBER ONE
I hereby declare as follows:
3

1.

I served as Juror #1 in the trial for the above-referenced action and was the

4 foreperson during jury deliberations. I make this declaration based on my personal knowledge and
5

observations of statements made in the jury room during deliberations. This declaration is only

6 intended to convey statements or discussions that occurred among the jurors and that I observed. I
7 have not been asked to comment on my personal impression about the jury's mental process or
8
9
10
11

what I personally think influenced any juror.
2.

On Friday August 18, 2017, I sent a note to the Court indicating that the jury was at

an impasse. At that point in time, when I had polled the jury, the vote was split 6 to 6.
3.

There were extensive discussions among the jurors about the distinction between

12 "possible" and "probable" causes. I raised that distinction several times. At one point while we
13

were discussing this issue, one of the jurors raised and pointed to the jury instruction on "Multiple

14

Causes," which said in effect that there could be more than one substantial cause. After that,jurors

15

in favor ofthe plaintiff relied heavily on that instruction in their argument to other jurors.

16

4.

When discussing non-economic damages,jurors initially discussed an amount much

17 lower than what was ultimately awarded. Jurors who voted in favor of liability argued that there
18

was going to be an appeal process and that the plaintiff's lawyers needed to be paid and were going

19 to take much ofthe money. They also stated that taxes, appeal costs, and expenses would be taken
20

out of Ms. Echeverria's compensation or out of the money received by Ms. Echeverria's daughter

21

when Ms. Echverria passed away. After jurors raised those arguments, other jurors expressed an

22 agreement to raise the amount of the damages.
23

5.

At the beginning when the jury first turned to discussing damages, one of the jurors

24

who favored the plaintiff expressed that jurors who were in favor of the defense should not

25

participate in the discussion. The jury took a poll on the issue of whether defense jurors should

26

participate in the damages discussion. After the vote, although I (as foreperson) facilitated the

27

damages discussion by calling on jurors and writing things on the board, I did not express my

28
1
DECLARATION OF JUROR NUMBER ONE(M.M.)

 views on the amount of compensatory damages. The other two defense jurors did not participate in
the discussion of compensatory damages after the poll was taken regarding their participation.
6.

When deciding how to apportion damages between the two defendants, the only

thing the jury discussed as the basis for the division was the relative net worth of the two
companies. Jurors agreed to assess a larger amount for non-economic damages from the parent
company (Johnson & Johnson) because of the ratio between the net worth of Johnson & Johnson
and that of JJCI.
7.

When the jury was discussing the amount of punitive damages, the jurors who voted

in favor of liability discussed and agreed to set the number based on a percentage of the

Cleveland + Columbus ♦Denver ♦Los Angeles ♦ San Francisco

Defendants' net worth, as Allen Smith had argued in closing argument.
8.

When the jury was at a six-to-six impasse on the Friday before the verdict, one

plaintiffjuror expressed that she no longer wanted to participate. She even turned her chair away
from the table. I wrote a note to the Court about the impasse. After we received a note back from
the Court, we continued to deliberate, but the jury continued to be divided and could not reach the
nine votes necessary to reach a verdict. The same juror told me that she was going to write to the
judge and ask to be taken off of the jury because of her frustration. She began writing a letter in
front of the other jurors.
9.

After the jury received the note from the Court in response to the jury note, one of

the plaintiffjurors argued vociferously that the jury was being told it needed to reach a verdict. At
that point, the jury took a vote using a one to ten scale to indicate how strongly we favored a given
side ("1" being strongest for defense, and "10" being strongest for plaintiff).

Using that

methodology, the "average" was about a "7," even though the jury remained divided. The jury

2
DECLARATION OF JUROR NUMBER ONE(M.M.)

 continued to deliberate through the end ofthe day on Friday.
2 I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true
3

and correct.

4

Executed this f

day of VEPT:,2017, at Los Angeles, California

5
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7

Juror Number One(M.M.)

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by

c/D

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4.1

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Q
L)
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HE
o 17
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DECLARATION OF JUROR NUMBER ONE(M.M.)

  

1

Bart H. Williams(SBN 134009)
bwilliams@proskauer.coin
2 Manuel F. Cachan(SBN 216987)
mcachan@proskauer coin
3 PROSKAUER ROSE LLP
2049 Century Park East
4 Los Angeles, CA 90067-3206
Tel: 310-557-2900 I Fax: 310-557-2193
5
Michael C. Zellers(SBN 146904)
6
michaeLzellers@tuckerellis.com
TUCKER ELLIS LLP
7 515 South Flower Street, 42nd Floor
Los Angeles, CA 90071-2223
8 Tel: 213-430-3400) Fax: 213-430-3409

G. Gregg Webb(SBN 298787)
gwebb@shb.coin
SHOOK,HARDY & BACON LLP
One Montgomery, Suite 2700
San Francisco, CA 94104
Tel: 415-544-1900IFax: 415-391-0281

9

Defendants' Court Liaison Counsel

Defendants'Lead Liaison Counsel

10 Kimberly A. Dunne(SBN 142721)
kdunne@sidley.com
11 David R. Carpenter(SBN 230299)
drcarpenter@sidley.coin
12 SIDLEY AUSTIN LLP
555 West Fifth Street
13 Los Angeles, CA 90013-1007
Tel: 213-896-6659 I Fax: 213-896-6600
14
Attorneys for Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc. formerly
15 known as Johnson & Johnson Consumer Companies, Inc.
16
17

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

18

Case No. BC628228

Coordination Proceeding
19 Special Title (Rule 3.550)
20 JOHNSON & JOHNSON TALCUM
POWDER CASES
21

JCCP NO.4872
DECLARATION OF JUROR NUMBER TWO

22 This document relates to:

Judge:
Dept.:
23 Charmaine Lloyd, et al., v. Johnson & Johnson,
et. al., Los Angeles County Superior Court,
24 Case No. BC628228

Hon. Maren E. Nelson
307

25 Plaintiff Eva Echeverria ONLY
26
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1
DECLARATION OF JUROR NUMBER'TWO (J.D.H.)

 DECLARATION OF JUROR NUMBER TWO
2

I hereby declare as follows:

3

1,

I served as Juror #2 in the Echeverria trial. I observed all of the events set forth

4

below in the jury room during deliberations, I have not been asked to comment *on my personal

5

impression of other juror's thinking, or what I personally think influenced any juror.

6

2.

On Friday August 18, 2017, the jury was split 6 to 6. Our foreperson sent a note to

7

the Judge telling her that the jury could not reach a verdict. One plaintiff juror said she no longer

8

wanted to participate in discussions. She turned her chair away from the table and began Writing

9. something. After we received the note from the Judge and were still not able to reach a verdict,
10

someone said we should just tell the Judge that we are a hung jury. At that point, one of the jurors

8

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A -12
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angrily said that the note we received from the Judge said we had no choice but to reach a verdict.
3.

We were not able to reach a verdict 'on Friday August 18. My best memory is that

the jury was still divided 7 to 5 in favor of the plaintiff at the end of the day.
4.

On Monday August 21, 2017, after almost no discussion; two more jurors switched

to the plaintiff side, giving the plaintiff 9 votes.
5.
17
•
1' 18
.0>
0 19

Once the discussion of damages began, one of the jurors who favored the plaintiff

angrily said that those of us who had favored the defense should not participate in the discussion of
damages.

A vote was taken regarding whether we should be allowed to participate in the

discussion of damages. After the majority of the jurors voted that we should not participate, the

20

decide on
three of us who had voted for the, defense did not participate in the discussion of how to

21

an amount fdr compensatory damages, or on the amount of damages.

22
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6.

amount of
The jurors who favored the plaintiff said:that they should increase the

have to pay taxes on
damages that they had been discussing because Ms, Echeverria was going to
those possible costs, other
the money, pay her lawyers, and pay for an appeal. After jurors raised

that the 9 plaintiff-favoring jurors
25 jurors agreed to raise the amount of the damages. The amount
Echeverria was based on the net worth of the
26 agreed on for compensatory damages for Ms.
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1
DECLARATION OF JUROR NUMBER TWO

 1

defendant companies. The jurors decided to award a larger amount of money against the larger

2 company just because they were a bigger company.
3

7.

When the jury discussed the amount of punitive damages, the jurors who voted in

4 favor of liability did what Allen Smith asked them to do in his closing argument — they set the
5
6

number based on a percentage of the Defendants' net worth.
I declare under penalty of perjury under the laws of the State of California that the

7

foregoing is true and correct.

8

Executed this 114 day of

, 2017, at Los Angeles, California

9

di/f

10

JurorNumber Two (J. D.-H.)

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cn

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DECLARATION OF JUROR NUMBER TWO

 PROOF OF SERVICE
Johnson & Johnson Talcum Powder Cases
Los Angeles County Superior Court, Case No. JCCP No. 4872
Charmaine Lloyd, et al., v. Johnson & Johnson, et. al.
Los Angeles County Superior Court, Case No. BC628228
Plaintiff Eva Echeverria ONLY

I am employed in the County of Los Angeles. I am over the age of eighteen years and not a
party to the within entitled action. My business address is 515 South Flower Street, Forty Second Floor
Los Angeles, CA 90071.
On September 15,2017,I served the foregoing document(s) described as: DEFENDANTS'
MOTIONS FOR NEW TRIAL; COMBINED MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT THEREOF;DECLARATION OF JUROR NUMBER 1;
DECLARATION OF JUROR NUMBER 2 on the interested party(ies) in this action through Case
Anywhere. I caused the foregoing document to be transmitted to Case Anywhere for electronic service
in the following manner
(X)

BY ELECTRONIC SERVICE:

I provided the document(s) listed above

electronically through the Case Anywhere website pursuant to the instructions on that
website. [The document will be deemed served on the date that it was uploaded to the
website as indicated by the Case Anywhere system.]
I declare under penalty of perjury under the laws ofthe State of California that the foregoing is
true and correct.
Executed on September 15,2017, at Los Angeles, California

PROOF OF SERVICE