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FILED

Superior Court of California
County of Los Angeles

OCT 2 0 2017

Sher . Carter, Executive Of?cerlCIet-lt
Deputy
Jan Josef Manriqu

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

Coordinated Proceeding
Special Title (Rule 3.550)

Johnson Johnson Talcum Powder Cases

 

Charmaine Lloyd, 6! al. v. Johnson Johnson.

et 02., BC628228

Plaintiff Eva Echeverria

 

 

 

 

Case No. BC628228
JCCP No. 4872

ORDERS REGARDING

DEFENDANTS JOHNSON JOHNSON
CONSUMER, INC. AND JOHNSON 
COMBINED MOTION FOR
NEW TRIAL, DEFENDANT JOHNSON 
JOHNSON CONSUMER, MOTION
FOR JUDGMENT NOTWITHSTANDING
THE VERDICT, AND DEFENDANT
JOHNSON MOTION

FOR JUDGMENT NOTWITHSTANDING

THE VERDICT

Hearing Date: October 12, 2017

Time: 10:00 am.
Dept: 307

 

 

 

I. BACKGROUND

A. Brief Overview of the Case

This case involves the ?rst trial of claims by plaintiffs in coordinated proceedings
contending they developed ovarian cancer as a result of their use of defendants? products
(Johnson?s Baby Powder and Shower to Shower)I in their perineal area. The products contain
talc.

Plaintiff Eva Echeverria2 (?Echeverria?) testi?ed that she began using Johnson?s Baby
Powder when she began menstruation in approximately 1965 at age I 1 and used the product on a
daily basis, and more frequently when menstruating, until 2016. She used Shower to Shower
less frequently. She was diagnosed with high grade serous ovarian cancer in 2007. The action
was ?led July 26, 2016. An expedited trial was ordered given her medical situation and
commenced July 21, 2017.

Prior to trial summaryjudgment was granted as to defendant Imerys Talc America, Inc.
who supplied the raw tale for the products. The case went to trial against defendants
Johnson Johnson and JJCI. It was tried on a theory of negligent failure to warn.

The evidence showed that Johnson?s Baby Powder was ?rst sold in 1893. The evidence

focused largely on epidemiological studies that show a statistical correlation between talc usage

 

1 The evidence at trial was that Johnson Johnson manufactured talcum powder until 1967.
Thereafter, the product, as well as Shower to Shower, was manufactured by Johnson Johnson
Consumer Inc. For purposes of this Order the defendants are referred to jointly except
when separate reference is needed.

7* Eva Echeverria died September 20, 2017. Her daughter, Elisha Echeverria, Acting Trustee of
The 2017 Eva Elaine Echeverria Living Trust, was substituted as plaintiff on October 12, 2017.

For ease of reading reference to ?plaintiff" is to Eva Echeverria. No disrespect is intended.

 

 



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and ovarian cancer. The ?rst study mentioning talc and cancer apparently was published in 1971
(Henderson, et. al.) but the study was not admitted into evidence. The only reference to it in the
record is a citation to it in another study (Boorman 1994) (Ex. L-97) wherein Boorman reported
that there was ?some concern reported about the perineal exposure to talc and the occurrence of
ovarian cancer in other studies have failed to ?nd such an association" and
cited to Henderson. (Tr. The reports in evidence were to the effect that since
at least 1982 there has been an ongoing debate in the scienti?c community as to whether talc
usage may cause ovarian cancer or whether the science supported only a ?nding that there was a 
statistical association between talc use and cancer. Thejury was called upon to resolve this:

complex scienti?c question.

B. A Brief Summary of the Law, the Evidence, and the Verdict

In an action alleging that a product causes cancer, giving rise to a duty to warn,
causation must be proven with a reasonable medical probability based upon competent expert

testimony. Mere possibility alone is insuf?cient to establish a prima facie case.

A possible cause only becomes ?probable? when, in the absence of other
reasonable causal explanations, it becomes more likely than not that the injury
was a result of its action. This is the outer limit of inference upon which an issue
may be submitted to the jury. (See Parker v. Employers Mutual Liability Ins. Co.
of Wis. (Tex. 1969) 440 43, 47.). . .With cancer the question of causation
is especially troublesome. the present state of scienti?c knowledge. . .it is
frequently dif?cult to determine the nature and cause of a particular cancerous
growth. juries are normally permitted to decide issues of causation
without guidance from experts, ?the unknown and mysterious etiology of cancer?
is beyond the experience of laymen and can only be explained through expert

testimony. Parker v. Employers Mutual Liability Ins. Co. of Wis, supra, at p.

 

 

 

 

46.) Such testimony, however, can enable a plaintiff?s action to go to the jury only
if it establishes a reasonably probable causal connection between an act and a
present injury.

Jones v. Ortho Pharm. Corp. (1985) 163 Cal. App. 3d 396, 403?404.

As discussed in further detail below, Echeverria?s expert witnesses testi?ed as to various
epidemiological studies, as well as studies on animals, and opined as to general causation. Laura
Plunkett, (?Plunkett?) testi?ed that in her opinion perineal use of talc can cause ovarian
cancer. She characterized talc as a toxin that causes changes in cell formation that become
cancerous over time and extended use, relying on studies that showed talc initiates an
in?ammatory response in cells, leading to the production of reactive oxygen species and changes
in gene expression. (Tr. 1048:22?1051z23; 1009:3-100926; 162229-27; 

John Godleski, MD. (?Godleski?), testi?ed that evaluation by electron microscopy
showed talc was present in Echeverria?s ovarian tissue.

Evidence was introduced that since at least 1982 (and possibly 1971 if the 1994
Boorman statements regarding Henderson?s work are considered) several epidemiological
studies showed a statistically valid correlation between talc exposure and ovarian cancer. Jack
Siemiatycki, (?Siemiatycki?) testi?ed that in 2006 the International Agency for Research
on Cancer a division of the World Health Organization, categorized talc as ?possibly?
carcinogenic if used perineally. This term was de?ned to mean that ?chance, bias, and
confounding? could not be excluded as explaining the epidemiological results. IARC declined to
?nd talc was a known or probable cause of ovarian cancer. (Ex. Tr. 1 196: 7-23; I 198:8-
1200:2; 22825-228328; 2285:23-26; 2291: 15-23.) Siemiatycki, who chaired
the IARC working group that classi?ed talc as ?possibly? carcinogenic, testi?ed that in his view
the present epidemiology results, including a pooled study (Terry 2013) suf?ciently show a
probable association between ovarian cancer and perineal talc use as that term is used by IARC

(TR 2173:] 1-2176:19; 2401:22-28; 2412:20~2413:17) but conceded that the epidemiology was

 

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insuf?cient prior to 2007 to conclude that there was a causal association between perineal use of
talc and ovarian cancer. (Tr. 2300: 1 5-19; 2362:] 1-22.) Siemiatycki authored a paper to the same
effect, published in 2008. (Ex. Tr. 

Numerous epidemiologic studies were put to the jury showing a range of ?relative risk?
ratios. Siemiatycki explained that ?relative risk? is the ratio of the risk among persons exposed
to the risk compared to the risk among the unexposed, explaining that ?if the risk of cancer in the
general is 4 percent in the general population but among a group of people with a
certain environmental exposure it is 6 percent, the relative risk of cancer due to that
environmental exposure would be 6 percent divided by 4 percent equals (Tr. 2126: 7-
212721.) He further explained that a ratio resulting in 2.0 is ?the point at which the probability
of causation, which is the probability that a given agent causes a speci?c disease, exceeds 50
percent (Tr. 2434: 15-27.)

Annie Yessaian MD. (?Yessaian?), Echeverria?s treating physician, engaged in a
?differential etiology? analysis and opined that that it was more probable than not defendants?
products caused Echeverria?s illness.

Echeverria emphasized at trial that condom manufacturers ceased using talc on their
products in the 19903. However, no admissible evidence was introduced suggesting that they did
so because of information suggesting that talc was linked to ovarian cancer and thejury was
instructed to disregard any such inference or suggestion.

Echeverria also introduced documents from defendants? ?les referencing a ?talc-?ovary
problem? and documents that showed they engaged in efforts to persuade regulators and the
scienti?c community, including the National Toxicology Program and that the
studies were insuf?cient to conclude that talc was a probable cause of ovarian cancer, including

evidence that Johnson Johnson provided funding to a trade association known as the

 

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Cosmetics, Toiletry, and Fragrance Trade Association and that it also took steps on its
own to advance the debate in its favor.

Defendants introduced evidence there was no peer reviewed literature suggesting any
causal mechanism that extended use of talc caused in?ammation leading to cancer). No
published peer-reviewed articles have determined tale to cause ovarian cancer. (Tr. 2276:21-
2277:19; 2280:2-10; 3695:19-3696z7; Further, defendants? experts testified to
the effect that the epidemiology relied upon by Bcheverria?s experts, with four exceptions,
discussed in?'a, showed a relative risk ratio of less than 2.0.

Defendants also showed that talc is not recognized as an ovarian cancer risk by the
Centers for Disease Control or medical associations such as the American Congress of Obstetrics
and Gynecologists or Society of Gynecological Oncology. (Tr. 2714:2-2721 35809-35905.)
The federal Food and Drug Administration has been requested to require manufacturers of talc
powders to warn of a potential link to ovarian cancer but declined to do so. The most recent
Physician Data Query published by the National Cancer Institute concluded that ?[t]he weight of
the evidence does not support an association between perineal talc exposure and an increased
risk of ovarian cancer.? (Tr. Although some manufacturers have recently placed
a warning on their product and Imerys advised of 2006 findings on its Material Safety
Data Sheet the evidence showed most manufacturers? products do not contain a
warning today. There was no evidence of any warning by a manufacturer prior to 2007.

Defendants moved for nonsuit and a directed verdict, which were denied.

Thejury was instructed based on CACI 1222, 430 and 431, with additional special
instructions. Those instructions required Echeverria to show that each defendant manufactured
and sold Johnson?s Baby Power and Shower to Shower to Echeverria and that prior to 2007 the
products were dangerous or likely to be dangerous when used in a reasonably foreseeable

manner, giving rise to an obligation to warn. The jury was also given Special Instruction No. 1

 

 

 

that required Echeverria to Show that exposure to talc was a substantial factor in causing her
illness by showing through expert testimony that there was a reasonable medical probability that
talc causes ovarian cancer and a reasonable medical probability that it was a substantial factor in
causing Echeverria?s ovarian cancer. The jury was instructed under CACI 103 that liability as to
both actual and punitive damages was required to be shown as to each defendant separately. The
jury was also instructed under CACI 3945 as to the burden of proof on punitive damages.
Echeverria requested instructions on agency and alter ego liability. Those instructions were not
given.

After a three week trial, including extensive expert testimony, the jury found in favor of
Echeverria, awarding $68,000,000 in non-economic damages from Johnson Johnson and
$2,000,000 in non-economic damages from JCCI. It assessed $340,000,000 in punitive damages
against Johnson Johnson and 7,000,000 against JCCI.

Defendants move for new trial or forjudgment notwithstanding the verdict 

C. Summary of Rulings and Orders

Mindful of the heavy burdens imposed on the moving parties, and the deference to be
given to thejury?s verdict, for the reasons that follow the Court concludes that defendants? trial
motions should have been granted and now grants the defendants? motions for JNOV. It also
grants defendants a new trial on the grounds of (1) insuf?ciency of the evidence as to causation
as to both defendants (Cal. Code of Civ. Pro. 657(6)); (2) error in law occurring at trial and

excepted to by defendants (Cal. Code of Civ. Pro. 657(7); (3) misconduct of thejury (Cal. Code

 

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of Civ. Pro. 65 and (4) excessive compensatory damages as to Johnson Johnson and

excessive punitive damages as to both defendants (Cal. Code of Civ. Pro. 

ll. JOHNSON MOTION FOR JUDGMENT

NOTWITHSTANDING THE VERDICT

A. Procedural Requirements and Legal Standard for JNOV Motions

A JNOV motion must be made within the time for ?ling and serving a notice of intention
to move for new trial, and if a motion for new trial has been made the court is to rule on both
motions at the same time. Cal. Code of Civ. Pro. ?629(b). Notice of this motion was timely filed
and the motion was argued concurrently with the new trial motion.

?The court . . . shall renderjudgment in favor of the aggrieved party notwithstanding the
verdict whenever a motion for a directed verdict for the aggrieved party should have been
granted had a previous motion been made.? Cal. Code of Civ. Pro. ?629(a). The power to grant
judgment notwithstanding the verdict is the same as the power to grant a nonsuit or directed
verdict, all of which are based on the legal suf?ciency of the evidence. (Beavers v. A ?state Ins.
Co. (1990) 225 Cal.App.3d 310, 327-328.) A motion for JNOV is akin to a demurrer to the
evidence. Where a demurrer assumes all facts pleaded are true, a JNOV motion assumes all
evidence supporting the verdict is true; the issue to be determined is whether such evidence
constitutes a prima facie case. (Moore v. San Francisco (1970) 5 Cal.App.3d 728, 733.)

While evidence must be accepted as true and viewed in a light most favorable to the
verdict, it must be substantial. (Sweatman v. Dept. of Veterans Affairs (2001) 25 Cal.4lh 62, 68;
Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4l 1 234.) ??Substantial evidence? is not

synonymous with ?any? evidence. To constitute suf?cient substantiality to support the verdict,

 

5' The Court is also mindful that this case was prepared and tried in an expedited manner. Trial
counsel, as well as JCCP liaison counsel, were required to do an extraordinary amount of work

on behalf of their clients in a short period of time and are to be commended in this regard.

 

 

[the evidence must be ?reasonable in nature, credible, and of solid value; it must actually be
?substantial? proof of the essentials which the law requires in a particular case.? (Id. at 284,

citing Kruse v. Bank QfAmerica (1988) 202 Cal.App.3d 38, 51.)

B. The Parties? Arguments

Johnson Johnson argues that JNOV must be granted as there was no evidence that it
manufactured Johnson?s Baby Powder or Shower to Shower. Further, it argues that if the
evidence could be inferred to show that prior to 1967 it manufactured Johnson?s Baby Powder
there is no evidence to show it knew or should have known in the period 1965-1967 that talcum
powder was linked in any way with ovarian cancer, as the ?rst scientific work in this regard was
published in 1982. It argues that as a matter of law it had no on-going duty to warn and further
argues that it cannot be liable for the acts of its subsidiary absent a showing of agency or alter
ego liability and that no such evidence was adduced.

Echeverria contends that witness Lorena Telofski (?Telofski?), designated as the ?person
most knowledgeable? by both defendants, as well as various experts and third parties, referred to 
?Johnson and Johnson? in their testimony without distinguishing between the two entities. She
further contends that after 1967 Johnson Johnson had knowledge that talc was the probable
cause of ovarian cancer and thus had an on-going duty to warn consumers, notwithstanding that
it did not manufacture the product because Johnson Johnson ?kept responsibility? over 
and directed it to manufacture the products, thereby justifying the imposition of liability against

it.

C. The Evidence As To Johnson Johnson

The uncontradicted evidence was that Echeverria used Johnson?s Baby Powder

beginning at age 1 1 (approximately 1965) and until 2016.

 

 

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The evidence as to who manufactured the products at issue during that time period was
limited and consisted of (1) an interrogatory asking the defendants ?to state the ?rst and last
dates of sale of each product? it manufactured or sold that contained talc. The joint response
stated that Johnson?s Baby Powder ?debuted? in 1893 and Shower to Shower debuted in the
19603 (Tr. 31 1: 19-27); (2) an interrogatory stating JJCI is a wholly owned subsidiary of
Johnson Johnson existing since 1967 (Tr. 31 1 1:2-31 12: 10); (3) testimony through Telofski
that was responsible for the marketing and internal procedures and safety assessments of
both products (Tr. 81 1:8~l4; 81227-81323; 852:18-853:1; 861:27?862:10; 863: 18?22}: and (4)
demonstrative exhibits showing that the labeled packages show JJCI as the manufacturer of the
products. (Ex. .

The only document in evidence dated prior to 1967 was a 1964 memorandum. (P-343).
That document discussed the development of a potential consumer research test with respect to a
powder made with a cornstarch product called ?Dry The penultimate paragraph states that
a Johnson Johnson employee William Ashton) established that ?the largest commercial uses
of Dry Flo a condom lubricant where it replaced talc because it was found to be
absorbed safely in the vagina whereas, of course, talc was not.? No witness was called to explain
the meaning of this sentence, which is capable of two interpretations (whether talc was absorbed
in the vagina at all or whether, if absorbed, it was ?safely? absorbed). Echeverria argues this
document is suf?cient to show both that Johnson Johnson manufactured the products at issue
prior to 1967 and had a duty to warn and that it acted with malice in not doing so, supporting the

verdict against it.

If

 

Ix.)

b)

 

 

D. Analysis

(1) Duty to Warn

 

A duty to warn arises when a manufacturer fails to warn of facts that it knows or should
know make a product likely to be dangerous. (Trejo v. Johnson Johnson (2017) 13 Cal. App. 
5th 110, 131, citing Valentine Baxter Healthcare ?orp. (1999) 68 Cal. App. 1467, 1482.) i
As to Johnson Johnson before a duty to warn could be imposed Echeverria was required to
show that it manufactured the products at issue; that talc was the more likely than not cause of
her ovarian cancer; and that Johnson Johnson knew or should have known that talc probably
would cause cancer. In this regard a manufacturer will not be ?charged with knowing more than
what would come to light from the prevailing scienti?c or medical knowledge" at the time.
(Valentine, 68 Cal. App. 4?h at 1483-1484. See also Anderson v. Fibergias
Corp. (1991) 53 Cal. 3d 987, 1002 [?Negligence law in a failure-to-warn case requires a plaintiff

to prove that a manufacturer or distributor did not warn of a particular risk for reasons which fell

 

below the acceptable standard of care, what a reasonably prudent manufacturer would have 
known and warned Carlin v. Superior Court (1996) 13 Cal. 4lh 1 104, 1 12, (citing
Anderson) [?Stated another way, a reasonably prudent manufacturer might reasonably decide
that the risk of harm was such as not to require a warning as, for example, if the manufacturer's
own testing showed a result contrary to that of others in the scientific community. Such a
manufacturer might escape liability under negligence 

Echeverria alleged that Johnson Johnson designed, developed, manufactured, tested,
packaged, promoted, marketed, advertised, distributed, labeled, and sold the products
(Echeverria First Amended Complaint, 14, 18, 20, 21, 85, 94, 131), made speci?c advertising
claims (Id. at 1111 25, 26), have continuously advertised and marketed the products since the 19703

(Id. at 113 1), and failed to warn (1m 89, 90).

ll

 

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After initially referring to both Johnson Johnson and JJCI in the pleading, for the most I
part the two parties arejointly referred to as Johnson Johnson. This is made clear in Paragraph
9 where, after introducing Defendant Johnson Johnson Consumer Companies, Inc. (now
known as Johnson Johnson Consumer, Inc.) as a wholly owned subsidiary of Johnson 
Johnson, Echeverria indicates that the two companies will thereafter be referred to jointly as the
?Johnson Johnson Defendants.? Echeverria did not allege any theory for holding the parent
liable for the acts of the subsidiary (such as alter ego or agency), but instead alleges the same
wrongful acts as to both. However, Echeverria did not establish this at trial.

Echeverria failed to put on direct evidence as to who manufactured the products in the
period 1965-1967. The interrogatory response read into the record is ambiguous but taken
together with Exhibit P-343 and the testimony of Telofski thejury could infer that Johnson 
Johnson manufactured the product prior to 1967.

The sole evidence argued to impose a duty to warn on Johnson Johnson that existed
prior to 1967 is Exhibit P-343, authored in 1964. Interpreting the disputed sentence in the light
most favorable to Echeverria, the document states only that talc was not ?safely absorbed? in the
vagina but does not discuss in any way the alleged consequences of that fact, i.e. that it was a
probable cause of ovarian cancer. There was no showing that as of 1967 there was any
suggestion by the scienti?c or medical community that talc was associated with ovarian cancer.
And, no internal documents from the company prior to that date suggest that conclusion. Thus,

one cannot infer from the document that Johnson Johnson knew or should have known prior to

 

1967 that talc more probably than not caused ovarian cancer, such that any duty to warn of that

fact arose at that time.
The further evidence at trial was that after 1967 manufactured the products at issue 
and was responsible for assessing their safety and determining whether warning labels should be

put on them. At oral argument and in her brie?ng Echeverria conceded that the documents and

 

IN.)

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evidence showed that Johnson Johnson ceased making Johnson?s Baby Powder in I967.
However, she argues that because Johnson Johnson called no witness to Show that Johnson 
Johnson?s ?involvement? with talc products ended in 1967 the jury could infer that Johnson 

Johnson was liable for failure to warn. (Echeverria?s osition to Johnson Johnson?s motion
PP

 

for JNOV at page 2, lines 24-25.)

This argument fails. Echeverria bore the burden of proof on this issue. She presented no 
evidence to contradict Telofski?s testimony or the demonstrative exhibits. The law is well- I
established that a holding company ordinarily cannot be held liable for the acts of its wholly
owned subsidiary absent a showing of agency or alter ego liability. (Sonora Diamond Co. v.
Superior Court (2000) 83 Cal.App.4?h 523, 538-540.) ?As a practical matter, the parent must be
shown to have moved beyond the establishment of general policy and direction for the subsidiary
and in effect taken over performance of the subsidiary's day-to-day operations in carrying out
that policy.? (Id. at 542, emphasis in original.)

While evidence was introduced that CCI is a wholly owned subsidiary of Johnson 
Johnson, no evidence was adduced as to why CCI was created; that JCCI was created to make

the products on behalf of Johnson Johnson; who of?cers and directors are or whether

 

they overlap with Johnson Johnson?s; that JCCI is undercapitalized; that Johnson Johnson
controlled day-to-day operations, nor any other evidence suggesting that an alter ego or 
agency theory could be put to thejury. Further, thejury was not instructed on these theories of i
liability as the evidence adduced was insuf?cient to support such instructions.

Echeverria argues that Telofski, who was designated as the person most knowledgeable
for both Johnson Johnson and JJCI (Tr. 800:] 1-18), distinguished between the two companies
on only three occasions in her testimony. (Id. at Tr. 801 :23-802:4; 80427-19; She
argues that for the vast majority of her testimony, Telofski used the words, ?Johnson 

Johnson.? Echeverria, however, does not indicate the subject matters on which Telofski was

 

designated to testify. Further, Echeverria?s counsel was aware when Telofski? deposition was
taken that Telofski was an employee of JJCI and that there were two separate corporations. To
the extent counsel asked questions regarding Johnson Johnson, Telofski properly answered
them on behalf of that entity.

Finally, Echeverria notes the experts all referred to ?Johnson Johnson.? That experts
or third parties referred to ?Johnson Johnson? does not save the verdict. None were asked to
opine that Johnson Johnson (as opposed to JCCI) manufactured or distributed the products
after 1967 and indeed it was not shown that any would have had such knowledge.

Apparently recognizing that the oral testimony does not support a finding that Johnson 
Johnson manufactured or distributed the products after 1967 Echeverria orally argued that
Johnson Johnson ?hired someone? (JCCI) to make the products for it after 1967 but ?kept
responsibility? for them, thereby imposing on Johnson Johnson responsibility for placing a
warning on the products at all times. The documentary evidence and oral testimony that supports
these factual assertions is not of a quality suf?cient to sustain the verdict.

First, and as noted above, there was no evidence that Johnson Johnson ?hired? JCCI to
make products for it. Further, the documents do not support an alter ego or agency theory of
liability. The documents may be grouped into several categories: those written by Johnson 
Johnson employees evidencing consideration of the marketing opportunities and obstacles for
talc (Ex. P-9 and Ex. documents showing that Johnson Johnson sought to assert its
views in the scienti?c community as to what the scienti?c evidence showed vis-a-vis talc (Ex. P-
16, P-20, P-59, P-204, 261 through P-264, P2-66, those that Echeverria argues show
that Johnson Johnson declined to fund studies into research concerned with the possible link
between talc and ovarian cancer or would fund only if favorable results would be guaranteed
(Ex. P-55, and those that show that condom manufacturers and Imerys either ceased

using talc in their products or warned about its potential harm (Ex. P-l9, P-27. P-396). In

 

 

 

addition, Echeverria argues that a document written by a JCCI employee shows that after 1967
Johnson Johnson should be liable for its? subsidiary?s failure to warn (Ex. P-764).

Considered individually or as a whole, and drawing all inferences in support of the
verdict, these documents could not be read by the jury as giving rise to a duty to warn on the part
of Johnson Johnson after 1967.

The document on which Echeverria primarily relies to show that Johnson Johnson was
?responsible? for JCCI is Exhibit P-764, dated January 1 1, 1994. This is a draft document (not
on letterhead) entitled ?Talc Questions and Answers? that posed various questions and answers
regarding the state of knowledge regarding scienti?c research on the issue of the linkage between
talc and cancer and responding to various studies to date. The evidence at trial was that this
document was drafted by Don Jones who was in the research and planning group at (Tr.
895122-896: 1 2; It made various references to Johnson Johnson?s decisions
regarding its labeling of Johnson?s Baby Powder, indicated ?Johnson Johnson uses the highest
standards in making its baby powder,? and stated ?Johnson Johnson hadjoined independent
researchers and the government in testing talc and that no link with cancer was found.?

No showing was made as to what use, if any, the draft document was put. There was no
showing that Johnson Johnson expressly or impliedly authorized these statements. Jones was
not called to testify and did not indicate the facts on which he based the statements related to
?Johnson Johnson.? In short, that a JCCI employee of unknown authority stated in a draft
document that ?Johnson Johnson? made decisions regarding labeling of the product or used
the highest standards in makings ?its? baby powder or engaged in research is insufficient to
show, as a matter of law, that Johnson Johnson in fact manufactured and labeled the product
or ?kept responsibility? for JCCI after 1967. (Young v. Horizon West, Inc. (2013) 220
CalApp?m 1 122, 133; van? Rood v. County of Santa Clara (2003) 1 13 Cal. App. 4th 549,

571).

 

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As to Johnson Johnson?s own acts, the assertions by Echeverria that Johnson 
Johnson employees considered marketing obstacles for talc based products is insuf?cient to
create an inference that Johnson Johnson was liable for the acts of its subsidiary after 1967.

Exhibit P-9, a 1986 memo from Ashton?s ?les referenced the fact that ?safety of cosmetic
powders has been a concern, especially among health professionals. They have decided that
powders provide no health bene?t. Therefore, the potential for harm from respirables or
accidental exposure should be avoided. Mothers are now being advised not to use baby powder,
especially talc baby powders.? The document goes on to say that ?retrospective studies have
implicated talc use in the vaginal area with the incidence of ovarian cancer. While a CFTA
sponsored animal study has shown talc does not migrate, this concern does affect use of powders
for adult Based on the scienti?c evidence and extensive experience and use we
believe that cosmetic powders are safe for use in babies and adults.? The document observes
that Johnson Johnson holds patents for segregation of ?super talc? and a cornstarch products
well as other patents and concludes that is probably working at the limits of cosmetic
powders technology and ?must pursue technologies which will provide a proven health bene?t
for use of powders on babies.? It also noted that it was possible to hypothesize that ?pursuit of
technologies which would create talc based powders of higher interest (than BP) to adults could
be pro?table.?

No evidence was adduced as to why this document was written or to whom (if anyone) it
was sent. Fairly read it suggests that a scientist at Johnson Johnson (Ashton) was suggesting
that baby powder use was impacted by the health community and that Johnson Johnson might
in the future pursue technologies to increase the use of cosmetic powders. It could not be fairly
inferred from this document that Johnson Johnson controlled JCCI, or ?kept responsibility? for

it.

 

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Likewise, Exhibit a memo dated August 5, 1992, from a Johnson Johnson ?le
but without testimony as to its author or recipients, indicated that an obstacle to marketing the
product was ?negative publicity from the heath community on talc (inhalation, dust, negative
doctor endorsement, cancer linkage)? and recommended investigation of an additive to reduce
dust. But. the document?s vague reference to negative publicity from a ?cancer linkage," without
more, was insuf?cient for a jury to ?nd Johnson Johnson ?kept responsibility? for 

Nor are documents referencing the funding of studies suf?cient to impose liability on
Johnson Johnson. Exhibit ?55 was heavily relied upon by Echeverria. It is a 1975 memo on
Johnson Johnson letterhead documenting that an employee named Gavin Hildick-Smith sent a
?small donation? to Keith Grif?ths of the Tenovus Institute for Cancer Research in Cardiff.
England and suggesting that ?it might be of value to identify the precise scienti?c data available
to Tenovus concerning talc and ovarian cells.? A handwritten note attached by D. Petterson
inquired as to whether Hildick-Smith advised in advance of this donation and opined that the
donation ?has certainly given Grif?ths the opening to put us on notice of the talc?ovary
problem.? Other than adducing testimony that Hildick-Smith was a doctor and Johnson 
Johnson employee (Tr. 883:19-28) no evidence was introduced as to the capacities of any of the
employees receiving the memo, or the role of Petterson? at Johnson Johnson or the
meaning of the term ?talcfovary problem.? Nor was there any showing that Grif?ths ever had or
provided any research to Johnson Johnson which might have actually put it on notice of a
?talcr'ovary problem,? let alone that Johnson Johnson controlled JCCI.

Nor does Exhibit P-262 support Echeverria?s argument. This e-mail chain indicates
Johnson Johnson would ?nancially support ?the Huncharek/Muscat narrative on ovarian
cancer? but was not ?Yet? prepared to support a ?diaphragm-?ovarian epidemiological study.?
That Johnson Johnson declined to fund research could not be inferred by thejury to support a

?nding that it controlled 

 

 

 

 

Exhibits P- 57 and P-27 are also insuf?cient to impose liability on Johnson Johnson
for acts taking place a?er 1967. Exhibit P-57 is an agreement by Johnson Johnson dated June
4, 1994 guaranteeing funding of $10,000 to CFTA for the ?management, coordination, and
development of scienti?c data to the safe use of talc,? agreeing to indemnify CFTA
with respect to same, and further acknowledging that any CFTA reports ?will become public
documents.? While this document clearly indicates Johnson Johnson sought to bring to the
public?s attention its views regarding the safety of talc it cannot be said, by inference or
otherwise. that it demonstrated that Johnson Johnson exercised day-to day control over 
suf?cient to implicate the doctrines of alter ego or agency. Similarly, that either Johnson 
Johnson or JCCI sought to bring their views forward either on their own or through CF TA, to
IARC and others in the scienti?c community (Ex. P-16, P-20, P-59, P-204, P-238, P-261-264, P-
266, P-267) and strategized about how to do so did not create evidence that Johnson Johnson
controlled JCCI to such an extent as to make it liable for decisions.

Documents from third parties also could not be relied upon to meet Echeverria?s burden
of proof. Exhibit to from a consultant (Wehner) suggesting that Johnson Johnson
point out to the FDA the flaws in a proposed study and decline to fund same and Exhibit P-16
from Wehner to criticizing the manner in which CF TA analyzed certain data and noting
that its inaccuracies subject the industry to being perceived as the cigarette industry also could not
be used by the jury to infer that Johnson Johnson was ?responsible? for As an initial
matter, Wehner goes on to state that the public perception ?would be a particularly tragic
misperception in view of the fact that the industry does have powerful, valid arguments to
support its position.? More importantly, that a third party consultant advised as to what he
believed its parent should do vis-a-vis the CFTA does and cannot establish that Johnson 
Johnson is liable for warnings on products it did not make or distribute. (Young v. Horizon West.

Inc. 220 Ca1.App.4?I1 at 1 133; van? Rood v. County ofSama Clara 113 Cal. App. 4th at 571).

 

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Similarly, Exhibit P-27, from Imery?s Director of Product Safety, to Ashton, cautioning
that IARC could classify talc as potentially carcinogenic and suggesting that Ashton counsel his
management regarding same, as well as Exhibit P-396 between the same two persons,
transmitting an April 2004 scienti?c paper which the Imery?s employee characterized as
?compelling? evidence of a theory as to how talc could cause ovarian cancer and cautioning that
the NTP could classify talc as a ?causative agent? based thereon cannot be the basis for liability
against Johnson Johnson. A third party (Imerys) cannot create a relationship showing that
Johnson Johnson had ?responsibility? for CCI, any more than the acts of a purported agent
suf?ce to show a principal-agent relationship. 

Finally, the fact that Johnson Johnson was aware that condom manufacturers
discontinued the use of talc in its products in 1994 (Ex. P-l9) or that Imerys put a warning on its
MSDS (Ex. P-37) in 2006 does not establish that talc was known or should have been known to
cause ovarian cancer prior to 2007 or that Johnson Johnson was ?responsible? for CCI
thereby. As to the condom issue, Echeverria introduced evidence that another of her experts
(Plunkett), in her report, relied on a 1994 newspaper article that opined that condom
manufacturers removed talc from their products ?in part due to ovarian cancer concerns.? No
evidence was admitted, however, as to what those concerns were whether the condom
industry ceased to use talc because the available science supported a conclusion that talc was a
probable cause of ovarian cancer or because the concerns surrounded publicity of the possibility
of such a link) and the jury was speci?cally instructed that the facts set forth in the article were
not admitted for their truth. As such, evidence as to what the condom industry did could not
have properly been considered by the jury to establish knowledge on the part of Johnson 

Johnson, much less determine it was ?responsible? for decisions regarding warnings.

 

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Likewise, the decision by Imerys in 2006 to put a statement on its MSDS that restated 
2006 conclusion that talc was a ?possible? carcinogen could not be used to show that in 2007
Johnson Johnson had a duty to warn, or that it was responsible for JCCI.

Following oral argument on these motions Echeverria argued for the ?rst time (in
supplemental papers ?led October 13, 2017 and not authorized by the Court but nonetheless
considered) that Johnson Johnson had an on-going duty to warn consumers and to recall the
products. The cases cited by Echeverria, however, stand for the proposition that a manufacturer
of equipment who continues to market the equipment and determines it is likely to be dangerous
has a duty to recall the product or retro?t it. (Hernandez Badger Constr. Equip Co. (1994): 28
Cal. App. 4"1 1791, 1827; Lunghr' ('lark Equip. Inc. (1984) 153 Cal. App. 3d 485, 494.)
Echeverria cites no authority for the pr0position that a manufacturer who has ceased to make the
product must cause a warning to be placed on the product by another manufacturer or cause that
manufacturer to recall the product. Moreover, Echeverria did not ask thejury to be instructed on
this basis under CACI 1223 or otherwise and cannot assert it for the ?rst time after oral argument

on post-trial motions.

(2) Punitive Damages

As to punitive damages Echeverria was required to show by clear and convincing

evidence that Johnson Johnson acted with malice, i.e. ?despicable conduct which is carried on

by the defendant with a willful and conscious disregard of the rights and safety of others.? Cal.

Civ. Code 3294 subd. 

The term ?despicable,? though not de?ned in the statute, is applicable to

9?

?circumstances that are ?base,? ?vile,? or ?contemptible. (College Hospital Inc.

v. Superior Court (1994) 8 Cal.4th 704, 725 [34 Cal. Rptr. 2d 898, 882 P.2d 894],

 

quoting 4 Oxford English Dict. (2d ed. 1989) p. 529.) Under the statute, ?malice

does not require actual intent to harm. [Citation.] Conscious disregard for the

safety of another may be sufficient where the defendant is aware of the probable

dangerous consequences of his or her conduct and he or she willfully fails to avoid

such consequences. [Citation.] Malice may be proved either expressly through

direct evidence or by implication through indirect evidence from which the jury

draws inferences. [Citation.]" (Angie M. v. Superior Court (1995) 37 ("al.AppAth

1217, 1228 [44 Cal. Rptr. 2d 197].)

Pfetfer v. John Crane, Inc. (2013) 220 I.i?al. App. 4th 1270, 1299.

Because Johnson Johnson is a corporate defendant Echeverria was also required to
show by clear and convincing evidence that a director or managing agent acted with malice. Cal.
Civ. Code, 3294, subd. plaintiff may satisfy the ?managing agent' requirement of .?ivil
Code section 3294, subdivision through evidence showing the information in the possession
of the corporation and the structure of management decisionmaking that permits an inference
that the information in fact moved upward to a point where corporate policy was formulated.
These inferences cannot be based merely on speculation, but they may be established by
circumstantial evidence, in accordance with ordinary standards of proof.? (Romo v. Ford Motor
Co. (1999) 99 Cal. App. 4th 1 1 15, 1 141, disapproved on other grounds in People v. Auk.? (2004)
33 Cal. 1250.)

The only employee of Johnson Johnson referenced in the pre-1967 documents that
Echeverria contends support punitive damages against Johnson Johnson was William Ashton.
There was no showing as to Ashton?s capacity at Johnson Johnson suf?cient to support a
punitive damage award. The testimony offered by Telofski was that Ashton was deceased, had
retired some years earlier, and was in ?research and development? at the time he left the

company. Telofski testified she was "not sure if he was a manager or director level? when he

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left the company. Telofski went on to say she ?reallyjust doesn?t know.? (Ex. 1 and 2 to
Defendants? Compendium of Trial Transcripts.) No questions were asked as to Ashton?s
position in 1964.

Post 1967 the only Johnson Johnson employees identi?ed were Neal Matheson, who
signed Exhibit P-57 in 1994 and was Executive Vice President of Research Development and
identified by Telofski as a ?vice president in (Tr. 805:25-27) and Steve Mann, who
?worked? at Johnson Johnson (Tr. 805: 15?17) and whose title was shown as ?Director,
Toxicology.? Mann communicated regarding funding the ?Huncharek/Muscat study? (Exhibit
P-262) and Matheson and Mann exchanged e-mail correspondence regarding the CFTA Task
Force and steps Johnson Johnson might take to bring its views to the attention of and
others in the scienti?c community and monitored conclusions (Exhibits P- 204, P-26l
through P-264, P-266, P-267). Assuming that the jury could infer that these persons were
managing agents of Johnson Johnson there was no showing that either engaged in manifest
disregard of safety or was reckless in not causing Johnson Johnson to warn that talc was a
?probable? cause of cancer. The best that can be said from the evidence is that they were aware
IARC classi?ed talc as ?possibly? carcinogenic, a standard insuf?cient as a matter of law to
require any warning, even had Johnson Johnson been the manufacturer of the product.

In short, there was simply no evidence that Johnson Johnson knew in the 1965-1967
time period that talc more likely than not caused ovarian cancer, giving rise to a duty to warn,
much less that a managing agent acted with requisite malice in failing to give the warning. Nor
is the verdict saved by reference to argument that documents existing after 1967 can create a
basis for liability as to Johnson Johnson based on failure to warn. The documents and
testimony, granting all inferences in favor of Echeverria, as a matter of law do not support

liability on an agency or alter ego theory, much less support a finding by clear and convincing

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evidence that a punitive damage award was appropriate. For these reasons alone the JNOV
motion must be granted as to Johnson Johnson.

Further, and as discussed below, Echeverria failed to meet her burden of proof to show
that her use of Johnson?s Baby Powder and Shower to Shower were the probable cause of her
ovarian cancer. Thus, as to both Johnson Johnson and CCI the motion for JNOV must be

granted.

MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

A. Summary of the Argument

Defendants advance three arguments as to why JNOV must be granted based on the
argument that Echeverria failed to present evidence suf?cient to show that her use of talc based
products was the probable cause of her ovarian cancer. Speci?cally, they argue that Echeverria?s
speci?c causation expert, Yessaian, failed to present epidemiology showing talc was the more
probable than not cause of her cancer and used an improper methodology for determining the
cause of her cancer (differential etiology) given the lack of epidemiology. JCCI also argues that
no substantial evidence was presented to show that it had a duty to warn prior to 2007 and that as
a result JNOV on both the general and punitive damage awards must be granted.

Echeverria contends that the motion is not well taken, as she had no obligation to present
epidemiologic evidence. She further argues that Yessaian properly engaged in a differential
etiology. She argues further that other experts (Plunkett, Godleski, Siemiatycki) established
general causation. Finally, she argues that internal documents pre-dating 2007, discussed supra,
showed that genital use of talc was not safe and knew that others in the industry warned of its
dangers, supporting the punitive damage award against JCCI.

If

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B. The Sargon Ruling and a Summary of Yessaian? Testimony
In evaluating defendants? causation arguments, background concerning the general
causation testimony that was offered is necessary, as is an understanding of the permitted scope

of Yessaian?s testimony.

 

Prior to trial defendants made a series of motions under Sargon Enterprises, Inc. v.
University of Southern Cal. (2012) 55 CamIh 747 to exclude various expert testimony. Certain
general causation experts were excluded and the testimony of others was limited. A written
order issued, as did an oral clari?cation. (Tr. of July 18, 2017 at 5: 23-627.) Yessaian was
permitted to opine that, using a ?differential etiology methodology,? it was "more probable than
not? that Echeverria?s cancer was caused by her use of talc based on Echeverria?s medical
history; the fact that talc was found in her ovarian tissue; 4 epidemiological studies involving
women using talcum powder who were diagnosed with ovarian cancer which showed an "odds
ratio? in excess of 2.0 thus permitting Yessaian to ?rule in? talc as a causative agent; and other
studies generally showed an odds ratio of 1.22 to 1.39. She was not permitted to testify that
in?ammation of cells was involved in Echeverria?s cancer.

The testimony at trial by Yessaian on speci?c causation was to the effect that her
methodology in determining the probable cause of Echeverria?s cancer was to engage in a
?differential diagnosis,? or ?differential etiology,? (Tr. She explained that this
process involved identifying risks for a disease; ruling out risk factors that you don't believe
apply; and ruling in what you believe is the cause of the cancer. (Tr. 2812: 1 8-21 .) She testi?ed
that she ruled out 13 other potential known risk factors for ovarian cancer that could be
applicable to Echeverria (genetics; history of family members with cancer at an early age or
breast or ovarian cancer; early onset of menarche; age, age at menopause; obesity; 
ovarian endometriosis; tobacco and alcohol use; use of hormone replacement therapy)

and considered ?protective factors? (number of pregnancies and births; breast feeding; use of

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birth control pills; tubal ligation) (Tr. 2647:9 - 2648: 18). She testi?ed she considered talc use a 
risk factor based on epidemiological studies as well as the number of applications of talc
Echeverria had, which she estimated to exceed 30,000 and the number of years of talc usage
prior to diagnosis (32) (Tr. 2612: 15 26132) and also considered the ?mechanism" by which it
is theorized that talc migrates to the ovaries. the fact that talc was found in Echeverria?s ovarian 
tissue, and the literature suggesting that talc exposure causes cancer by in?ammation that
ultimately leads to malignant transformation of cells (Tr. 2613:10 - 2614:] 1: 2618:3- 2618:25;
Tr. 2611:11 - 2612:4; 2621 :21-2630:6; 

As to the testimony that in?ammation was considered the mechanism by which talc
caused Echeverria?s cancer, the opinion including that testimony was stricken as no
in?ammation was found in Echeverria?s tissue. (Tr. 2645: 18-20.) Yessaian then testified more
generally that she considered the mechanism by which talc is hypothesized to cause ovarian
cancer is by way of in?ammatory processes. (Tr. 2646: 1-9.)

In reaching her conclusion that talc was a risk factor to be considered Yessaian relied on I
four epidemiologic studies (Cramer 1982; Rosenblatt 1992; Cramer 1999; and Wu 2009) that
showed odds ratios in excess of 2.0 that a woman using talc would develop ovarian cancer 
that she had 50% or greater chance of developing cancer than women who did not use talc), as
well as 26 case controlled studies, 5 cohort studies showing ?odds ratios? of 1.2 or 1.3, which
she opined showed that the women in those studies had a ?trend of thirty percent increase in
risk,? and meta-analysis and pooled analysis (Tr. 2658:5-12; 2820: 6-28; Yessaian
admitted at trial that she knows of no studies showing a risk ratio over 2.0 for serous invasive
ovarian cancer, which is the type of cancer with which Echeverria was diagnosed (Tr. 2896: -
2897216) and that one study on which she relied (Cramer 1999) showed an odds ratio of 1.70 for
serous ovarian cancer (Tr. 2672: 6- 20) and a second (Wu 2009) also showed an odds ratio of

1.70 for serous ovarian cancer (Tr. She interpreted those results as a 70%

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increased risk (Tr. 2896: 12-13.) She further testi?ed that other studies on which she relied that
showed an odds ratio of less than 2.0 were useful because they showed an increased risk of
cancer deve10ping in talc users and testi?ed that speci?c studies showed this. She testi?ed a
study by Gertig (2000) showed a 1.4 odds ratio and interpreted this as meaning the subjects had a
40% increase in risk for serous ovarian cancer in women using talc (Tr. 2668:12-2669zl9} and
that a study by Gates (2008) showed an odds ratio of 1.6, which she interpreted as meaning that
women who used talc had a 60% increase in the risk of developing serous ovarian cancer
compared to those who did not (Tr. 2669:20-27) and that a ?pooled? study by Terry (2013) had
an ?odds ratio? of 1.20 for serous ovarian cancer, which she interpreted as translating to a 20%
increase in risk (Tr. 2670:] 1-15). She further acknowledged that Wu (2009) showed that a
person with genital use of talc with 15,600-52,000 applications showed an odds ratio of .34 and
acknowledged that the number was statistically insigni?cant (Tr. 2910: 21-25).

Yessaian also testi?ed that because Echeverria was obese the estrogen effects of an
increased body mass index might serve in combination with other factors to increase her ovarian
cancer risk (Tr. 2870: 24-26) but stated that obesity more probable than not did not contribute to
her cancer because elevated BMI is not associated with high grade serous ovarian cancer. (Tr.
2866: 16-22.) She testi?ed she ?ruled out? age as a possible cause of cancer although ?it could
have gone either way.? (Tr. 2870: 19-21 .) She admitted that Echeverria?s risk of ovarian cancer
was increased by her number of ovulations but stated it was ?less likely than not.? (Tr. 2881:15-
22.) She acknowledged that cancer is ?multifactorial? (Tr. 2875: 4-10) and admitted that when
she ?ruled? out risk factors she ruled them out because it was ?less than 50 percent likely that
they were the factor.? (Tr. 2883: 18-19).

She further testi?ed that although many cancers have no known cause, she did not ?rule
out? unknown causes and that it was not possible to do so. After admitting idiopathic causes are

the leading cause of ovarian cancer and that it was probable Echeverria?s cancer was caused by

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some risk factor science does not yet know about (Tr. Yessaian testi?ed that
there was less than a 50% chance Echeverria?s cancer was idiopathic. (Tr. 2888: 1 9-26; 2890:28-
289] However, she could not put a ?percentage? on how less likely that was.
(Tr. 2894: 20-21.)

C. Analysis

Following trial if the Court is convinced that there is no substantial con?ict in the
evidence and that the tendered expert Opinions do not Show speci?c causation (which. under
Jones Ortho. Phar. Corp. (1996) 163 Cal. App. 3d 396, must be shown by expert testimony in
a case alleging cancer) a JNOV is properly granted. See Osborn v. [rm-in Mom ?1 Blood Bank
(1992) 5 Cal. App. 4?h 234, 275. After considering it in totality and weighing all inferences in
favor of Echeverria, the Court is persuaded that Yessaian? 5 opinion is insuf?cient as a matter of

law to support the verdict.

(1) Speci?c Causation Was Not Shown

Yessaian Did Not Have a Basis to ?Rule In? Talc

Yessaian was the only expert called on speci?c causation. She did not rely on the
testimony of Plunkett or Siemiatycki in forming her opinions. Thus, while the jury could well
have evaluated the credibility and reliability of her opinions by comparing them to information
provided by Plunkett and Siemiatycki, her determination that talc was a cause of ovarian cancer
and was the ?more probable than not? cause of Echeverria?s cancer is dependent only upon her
testimony and that of Godleski. As to the latter, there was no dispute that he testified to locating

talc in Echeverria?s pathology tissue. Thus, the evidence is not in con?ict.

 

 

 



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In conducting a differential etiology'I Yessaian was required ?rst to establish talc is a
probable cause of ovarian cancer. Without establishing that fact, she could not ?rule in? talc as a
probable cause of Echeverria?s disease. As Yessaian explained, and as case law makes clear: ?In
performing a differential diagnosis, a physician begins by ?ruling in? all scienti?cally plausible
causes of the plaintiffs injury. The physician then ?rules out? the least plausible causes of injury
until the most likely cause remains. The ?nal result of a differential diagnosis is the expert's
conclusion that a defendant's product caused (or did not cause) the plaintiff?s injury." (Glastetter I
v. Novartis Pharms. Corp. (8?h Cir. 200]) 252 F.3d 986, 989. See also If 'ooprr v. Takeda
Pharmaceuticals America, Inc. (2015), 239 Cal. App. 4th 555, 593-594.)

The only basis upon which Yessaian opined that talc is a scienti?cally plausible cause of
ovarian cancer was epidemiology and general reference to in?ammation. But. none of the four
studies on which she was permitted to rely (Cramer 1982; Rosenblatt 1992: L?ramer 1999; and
Wu 2009) showed odds ratios in excess of 2.0 that a woman using talc would develop serous
ovarian cancer that she had 50% or greater chance of developing cancer than women who

did not use talc). Two did not break out serous ovarian cancer, although Yessaian admitted that

Defendants argue that the use of a differential etiology methodology was not proper in
the ?rst instance because the testimony at trial was to the effect that when the causes of a disease
are largely unknown (as was testi?ed to by both Yessaian and defense experts), a differential
etiology ?is of little assistance.? Restatement (Third) of Torts: Phys. Emot. Harm 28 cmt. 4 
(2010); S. Breyer et. 211., Reference Manual on Scienti?c Evidence 3d Ed. (201 l) 618 n. 214.

The Court need not reach this issue as, even if the methodology could be used here, it was

employed improperly.

 

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it was important to focus on histological type (Tr. 2896:1-4; The two that
did (Cramer 1999 and Wu 2009) showed a relative risk ratio of 1.70.

The other studies on which Yessaian relied to show talc was a scientifically plausible
cause of serous ovarian cancer all showed relative risk ratios well below 2.0, i.e. in the range of
1.3. Those statistics tend to disprove causation, as they show talc does not double the risk of
harm. (Daubert v. Merrell Dow Pharm, Inc. Cir. 1995) 43 F. 3d 1311, 1321 (Emphasis in
original); In re Lipitor (Aiorvastatin Calcium) Ming, Sales Prac. Prod. Liab. Litig, (D.S.C.
2016) 185 F. Supp. 3d 786, 791-92.) In this regard, it is to be recalled that the risk ratios being
cited are relative risk-ratios?comparing the risk that someone who uses talc will develop
ovarian cancer to the risk that someone who did not use talc will also develop cancer. A relative
risk ratio of 1.3 is well below the two-fold risk level necessary to show that talc ?more probably
than not? causes cancer. See Marder v. G. D. Searle (1986) 630 F. Supp. 1087, 1092.

Further, defendants showed (and it is not disputed) that the most recent study (Cramer
2016) found the relative risk ratio for serous ovarian cancer for persons like Echeverria who
were post-menopausal when they developed cancer; had not used hormone replacement therapy;
and had used tale for 24 years was 1.0?i.e. no greater and no less than women in the population
at large.

Echeverria argues that epidemiological studies were not required to prove causation,
citing In re Neuroniin Marketing, Sales Practices, and Products Liability Litigation (D.
Mass.2009) 612 F.Supp.2d 1 16, 132. (Opposition at 16, FN 8.) However, the fact is that in
ruling tale ?in? Yessaian relied almost entirely on epidemiological studies. To argue that
epidemiological studies are not required to establish causation is not persuasive given they were
utilized for such purpose.

Nor is it suf?cient to argue that Yessaian did not rely solely on epidemiological studies or

that such studies formed only one facet of the factors she considered. (Opposition at 16:25 26.)

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Although Yessaian testi?ed that epidemiology was just one of the factors she looked at, she did
not mention any others. (Tr. 2657:25- 2658:12 and 2673: 1 She did reference prior
testimony wherein she, ?listed all the factors and elements that I evaluated.? Presumably she was
referencing testimony at Tr. 2629:20-263026, cited in Echeverria?s Opposition at 14:28, along
with a picture of the board on which Yessaian wrote her list. Within that testimony. Dr. Yessaian
ruled_o_ut other causes of Echeverria?s ovarian cancer, but did not ?nd any other factor to 
talc as a disease agent other than epidemiology.

In this regard it should be noted that Yessaian also did not ?rule in? talc as a disease agent
based on the testimony of Godleski or her general understanding that that there is a plausible
biological mechanism (in?ammation) by which it may be hypothesized that talc causes cancer,
nor could she in the absence of evidence that Echeverria had such inflammation.

The undisputed evidence was that epidemiology was the only basis that Yessaian could
and did ?rule in? talc as a disease agent. That evidence was extremely limited and, at best,
consisted of two studies (Cramer 1982 and Rosenblatt 1992) showing a relative risk ratio in
excess of 2.0. In light of the other studies presented and, in particular the studies on which
Yessaian relied that showed that when strati?ed for serous ovarian cancer, the risk was 1.7 and
for those with characteristics most closely aligned with Echeverria?s (serous ovarian cancer, no
use of hormone replacement therapy, and use of 24 years) no increased risk was shown,

substantial evidence was not provided by Yessaian to ?rule in? talc.

(ii) Yessaian Did Not ?Rule Out? Other Causes of Cancer

As to what Dr. Yessaian ?ruled out? in her differential etiology, Yessaian was able to
testify based on Echeverria?s medical and personal history that some disease agents (genetics;
history of family members with cancer at an early age or breast or ovarian cancer; 
ovarian endometriosis; tobacco and alcohol use; use of hormone replacement therapy)

could be ?ruled out.? However, as to others (age, number of ovulatory cycles, obesity) Yessaian

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did not rule them out. She testi?ed instead that in her opinion it was less probable than not that
they caused Echeverria?s disease. She testi?ed that ?nobody? could eliminate obesity (Tr.
2876:28-2878212) or age (Tr. and that although a high number of ovulatory cycles
was a risk factor for ovarian cancer, Echeverria?s number of ovulatory cycles was ?less likely
than not? the cause of the disease (Tr. 2881 120-2882223). Thus, she did not eliminate these
potential causes but instead, ?discounted? them. As to obesity she did so on the basis of studies
showing that obesity was not statistically linked to serous ovarian cancer (although it is linked to
breast and uterine cancer) but as to age and number of ovulatory cycles, her testimony had no
underpinning.

Likewise, she conceded that idiopathic causes are the leading cause of ovarian cancer and
that it was probable Echeverria?s cancer was caused by some risk factor science does not yet
know about (Tr. yet testi?ed that there was less than a 50% chance
Echeverria?s cancer was idiopathic. (Tr. 2888: 19-26; 28902282891 2894: 1 3-1 8.) However.
she could not put a ?percentage? on how less likely that was. (TR 2894: 20-21).

The Court is of the ?rm view that Yessaian?s ?ruling out? of age and ovulatory cycles,
amounted to no more than speculation. Her testimony that it was ?probable? the cause of the
cancer was unknown, but then putting a ?less than 50% chance? on same (with no reasoning)
likewise amounted to mere speculation. Those facts show that the expert did not properly
employ the methodology she espoused and independent of the fact that there was no evidence of

substance to rule tale persuade the Court that JNOV must be granted to CCI and Johnson

Johnson on the basis that no speci?c causation was shown.

(2) Defendants? Arguments Regarding Scienti?c Knowledge

Defendants argue that there was no substantial evidence supporting a duty to warn
because such duty only arises when a product is shown to be dangerous based on scienti?c

knowledge available to the manufacturer. Echeverria argues that pursuant to Carlin v. Superior

3]

 

[Court (1996) 13 Cal.4l 1 104, 1 12-11 13, in negligent failure to warn cases there is no
?generally recognized and prevailing best scienti?c and medical knowledge? requirement. This
is a misreading of the case. As the Carlin court explained, the difference between a strict liability
failure to warn and a negligence based failure to warn case is that in a strict liability setting, even
a reasonably prudent defendant manufacturer (with no duty to warn under a negligence standard)
may be liable if the trier of fact concludes based on scienti?c information available to the
manufacturer, the failure to warn rendered the product unsafe. (Id. at 1 1 13.) Conversely, a
manufacturer who is aware of scienti?c evidence of a level of risk may be found to have acted
within the standard of care by not warning of the risk if, for example, it had other contrary
evidence. (Id. at 11 12.) Under either scenario, scienti?c knowledge is required for liability.
?Under a negligence standard, a reasonable manufacturer would not be charged with knowing
more than what would come to light from the prevailing scienti?c and medical knowledge.?
(Vaientine v. Baxter Healrhcare Corp. (1 999) 68 CalAppu?l"1 1467, 1483?1484.) However,
defendants did not ask for an instruction in this regard and cannot now use that as a ground for

JNOV.s

(3) JNOV to As To Punitive Damages Is Warranted

argues that at a minimum a partial JNOV on the issue of punitive damages should
be granted as there was no substantial clear and convincing evidence of malice. Cal. Civ. Code
?3294(a). Echeverria contends that notwithstanding the fact that the scienti?c community was
(and is) divided on the question of whether talc causes ovarian cancer, internal documents
showed that JJCI ?knew or should have known? that talc was dangerous or likely to be

dangerous giving rise to a duty to warn and that its failure to do so was in callous disregard of the

 

5 Defendants asked for and received an instruction as to custom and practice (CACI 413)

 

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safety of the public. Speci?cally, she contends that JJCI was on notice that condom
manufacturers ceased using tale in the early 19903 and was aware of the scienti?c studies both
from its consultant (Wehner) and from the literature generally. At trial Echeverria argued that
the literature, in particular Ex. P- 105 (Harlow 1992) and Ex. P- 107 (Cramer 1999)
demonstrated that ten percent of ovarian cancer cases in the United States are caused by the use
of talc based powders and from that fact Echeverria argued that JCCI should have warned about
the risk associated with the use of talc.

This is a misreading of the evidence. Ex. P-105 was an epidemiologic study that
concluded that if a cause association were to pertain to daily users or users with more than
10,000 exposures applying the odds ratios in the study to the exposure rate among cases the
proportion of ovarian cancer incidence was approximately 10%. Exhibit P-107 stated that there
was a consistent association between talc and ovarian cancer that appeared to be unlikely to be
explained by recall or confounding. The dose response relationship was deemed weak. The
authors hypothesized a biologically plausible causation mechanism and called for appropriate
warnings noting that avoidance of talc in genital hygiene use might reduce the occurrence of
ovarian cancer by at least 10%. Other research, both before and after this, and in particular in the-
time period 1980 to 2008, including a published 1995 report based on a joint symposium co-
sponsored by the FDA, the CFTA, and The International Association of Regulatory Toxicology
Pharmacology in January 2004 (Ex. D-205) reported that ?while some weak association
between talc exposure and ovarian tumors has been reported it was not suf?cient warning for
concern? and concluded that ?the possibility of an association of talc exposure and ovarian
cancer is an important hypothesis of potential public health concern. However, this association
remains a research hypothesis whose verification or falsification needs additional study.? These

additional studies took place, were considered by IARC in 2006, and led it to conclude that talc

 

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was a ?possible? rather than ?probable? cause of ovarian cancer. (Ex. Tr. 1 19627-23;
1198:8-1200:2; 2162: 18- 263: 10; 228225-2283: 28; 2285:23-26; 2291: 15-23.)

Signi?cantly, Echeverria cites to no internal research or study by JCCI that was not in
the public scienti?c domain. Thus, there was no showing beyond the publicly available literature
that would show JCCI ?knew or should have known? of the dangers of talc prior to 2007.

She also contends that internal documents, referenced above, showed that was
attempting to in?uence the scienti?c debate at NTP, sought to in?uence opinion leaders, and
sought to cause IARC not to list talc as ?probably? carcinogenic, and declined to fund studies
that it did not believe were favorable to it. These documents and theories are discussed, supra.
The documents, beyond showing that Johnson Johnson did not control JCCI, also do not
constitute substantial evidence to support the punitive damages verdict against JCCI. The only
document shown to have been written by a JCCI employee was P-764, the draft 
While that document demonstrates JCCI had knowledge of the science available at that time, it
does not show that anyone at CCI (much less a managing agent or employee) determined or
should have determined that talc was a probable cause of cancer based on the science available.

Further, and as discussed above, that condom manufacturers ceased using talc in its
products, without further information as to why they did so and that the information was known
to JCCI, or that Imerys disclosed the IARC classi?cation on its MSDS, does not show a
conscious disregard for safety. Echeverria?s own expert, who chaired the IARC panel giving rise
to its classi?cation of talc as ?possibly? carcinogenic testi?ed that in his opinion the scienti?c
evidence was insuf?cient to show as of 2007 that there was a causal relationship between
perineal talc use and ovarian cancer risk. (TR: 2300:9-14; 2300:15-19; 2362:] 1-22; 2355:24-
2359:2; 239:3-13; The Merritt study (2008) (Ex. also
concluded ?chronic in?ammation does not play a major role in the development of ovarian

cancer."

 

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Reviewing all of the evidence in the light most favorable to Echeverria the best that can
be said is that there was (and is) an ongoing debate in the scienti?c and medical community
about whether talc more probably than not causes ovarian cancer and thus giving rise to a duty to
warn. Clear and convincing evidence of malice is lacking. In such circumstances an award of
punitive damages based on theory of negligent failure to warn of the dangers cannot be
sustained. Cf. Kendall Yacht Corp. v. United CaZg'fomia Bank (1975) 50 Cal. App. 3d 949, 959;

Satcher Honda Motor Co. Cir. 1995) 52 F. 3d 131 1.

IV. MOTION FOR NEW TRIAL

A. Procedural Requirements and Legal Standard
(1) Timeliness

A party intending to move for a new trial must ?le notice of intention to move for new
trial designating the grounds upon which the motion is made, after a decision is rendered and
before entry of udgment, or within 15 days of the date of mailing notice of entry of judgment.
CCP ?659. The Court mailed notice of entry ofjudgment on August 21, 2017. Defendants ?led
their Notice of Intention to Move for New Trial on September 5, 2017. The motion is timely.

A motion for new trial must be ruled on within 60 days of mailing of notice of entry of
judgment by the clerk or any party (whichever is earlier), or if no notice is given, 60 days after
?ling of the ?rst notice of intent to move for new trial; after such time the court loses its power
to rule on a motion for new trial. Cal. Code of Civ. Pro. ?663a.

The last day for the Court to rule on the motion is October 20, 2017 (60 days from
August 21, 2017).

(2) Legal Standard
Courts have no inherent right to order a new trial; the right is purely statutory and must

be based on one of the grounds enumerated in the statute. (In re Marriage of Herr (2009) 174

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Cal.App.4l 1 1463, 1465; Fonrco, Inc. v. Joe Maggio, Inc. (1961) 55 ("al.2d 162, 166.) The
potential bases for granting a new trial are enumerated in Cal. Code of Civ. Pro. ?657.

Defendants? motion is based on the following:

(1) Insuf?ciency of the evidence to justify the verdict, or the verdict is against the law -
?657(6)

(2) Irregularity in the proceeding 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 - ?657(1)

(3) Error in law occurring at trial and excepted to by Defendants - ?65 TN).

(4) Misconduct of the jury - ?657(2)

(5) Excessive damages - ?65 7(5)

B. Analysis

(1) Cal. Code of Civ. Pro. ?657(6) ?Insufficiency of evidence arguments

?Insuf?ciency of the evidence is one of the most frequent grounds for new trial motions.
It is also one as to which the trial judge has the broadest power.? (Civil Trials and Evidence at
18:170.) The trial court is said to sit as the thirteenth juror and to have plenary power to order a
new trial based on insuf?ciency of evidence. (Barrese v. Murray (201 1) I98 Cal.App.4?h 494,

503.) "While it is the exclusive province of thejury to ?nd the facts, it is the duty of the trial

 

court to see that this function is intelligently and justly performed, and in the exercise of its
supervisory power over the verdict, the court, on motion for a new trial, should consider the
probative force of the evidence and satisfy itself that the evidence as a whole is suf?cient to
sustain the verdict. (People v. Robarge (1953) 41 Cal.2d 628, 633 [262 P.2d Insuf?ciency

of the evidence in this context means ?an absence of evidence or that the evidence received. in

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the individual judgment of the trial judge, is lacking in probative force to establish the
proposition of fact to which it is addressed.? (PeOple v. Capps (1984) 159 Cal.App.3d 546, 552,
fn. 5 [205 Cal.Rptr. 898].) The court must independently assess the evidence supporting the
verdict. (Ibid.) The court?s plenary power includes the power and duty to reweigh evidence (The
v. Kaiser C0. (1951) 102 Cal.App.2d 44, 46; v. Svoboda (1966) 240 Cal.App.2d 472,
473), and to consider the credibility of witnesses and draw inferences that differ from those of
the jury (Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4?h 127, 1 159-1 160).
In reweighing evidence, trial courts are to be guided by a presumption that the verdict is correct.

(Ryan v. Crown Castle NG Nemrorks, Inc. (2016) 6 Campps?? 775, 785.)

Put another way, a trial court may uphold a jury verdict resting on sufficiently weighty
evidence, even if the court itself might have reached a different conclusion. However, the trial
court must conduct its own independent evaluation of the evidence, including weighing the
evidence andjudging the credibility of witnesses. Id.

In their combined Motion for New Trial, Johnson Johnson and JJCI argue that the
verdict is against the weight of evidence. They contend the evidence presented was insuf?cient
to establish causation, and that mere possibility is insuf?cient to establish a prima face case.
(Jones v. Ortho Pharm. Corp. 163 Cal.App.3d at 402.)

As to general causation, defendants argue that:

The epidemiology studies do not show a strong association between genital talc use
and ovarian cancer, noting that the epidemiology studies reveal average risk ratios of 1.24-1.3.
(Tr. 1398:23-1402:8, 2459:5-2461 :13, This relatively weak association could
be the result ofchance. (Tr. 1443:12-1444:19 (Exhibit Tr. 2332:25-2345:18; 2430:12-
28; 2456:19-2458z4; 2448:14-2489213; 3178:22-3180:20; 3361 :21-3370219; 

(2) The results of studies are inconsistent. (Tr. 1426:2-15, Exhibit P-104, at 3; 1430:5-
l433:5; 3714:2-3716:28; 1433:25-1438z5; Exhibit L-1769 Tr. 3705:9-3707:19; 3176:14-3178z7;


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(3) The studies fail to establish a dose-response relationship. (Tr. 3723:19-3724:1;
2389:21-2394:1; 2383:10-2389:5; 2823:3-2824:9 3182:14-3183:25; 
Echeverria?s expert, Siemiatycki, testi?ed that although a study by Terry (2013) showed
?compatibility? with dose response, it was equally compatible with no dose-response. (TR
2383: 1 

(4) No animal study has ever shown that talc causes ovarian cancer. (Tr. 3186:11-
3195:20 (Hamilton 1974); 1239:23?27; 1253:26?1255z2, 3186:] 1-3195:20 1270:19-
1276z28 (1995 Boorman).

(5) The proposed biological mechanism is speculative. (Tr. 3476: 1 3-3480z23; 3492:20-
26; 3464:9-3465:23; 3475:23-3480223; 3492:20-26; 3536:4-13; 3567:12-3568:6; 3601:12-
3602:1; 1359:3-10; 1363:12-19; 1354:23-135729; Exhibit L-81 1;
Exhibit P-47 at 3-5.)

(6) The consensus view in the regulatory, scienti?c, and medical community is that the
science does not support a causal relationship. (Exhibit Exhibit Tr. 19627-23;
1198:8-1200222; 2162:18-2163:10; 22825-228328; 2285:23-26; 2291:15-23; 
Tale is not recognized as an ovarian cancer risk by the Centers for Disease Control or medical
associations such as the American Congress of Obstetrics and Gynecologists or Society of
Gynecological Oncology. (Tr. 2714:2-2721:9; No published peer-reviewed
articles declare tale to cause ovarian cancer. (Tr. 2276:21?2277zl9; 2280:2-10; 3695:19-3696:7;
3749:12-3 750: .) The Clyde 2017 study, which was comprehensive, did not include talc as a risk
factor even though it was considered as part of its analysis. (Tr. 

As to speci?c causation, Defendants argue Yessaian?s testimony was insuf?cient as a
matter of law to prove speci?c causation for the reasons set forth above regarding JNOV. They
further argue Yessaian?s testimony was speculative and unreliable, and her credibility was
undermined, because she focused only on studies that supported her conclusion while
disregarding any contradictory data or cohort studies, including more recent studies, and ignored
the studies she cited. They suggest ?cherry-picking? metrics from different studies is not good

science. (Tr. 2428:16-26; In re Zolo? (Serialine Hydrocloride) Prod. Liab. Litig. (ED. Penn.

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2014) 26 F.Supp.3d 449, In addition, even as to the four studies on which she relied
Yessaian used only data or metrics she considered helpful. Her report indicated she would apply
data based on Echeverria?s estimated 30,000 lifetime genital applications of talc (Exhibit PP at
8), which would have produced a statistically insigni?cant relative risk ratio under the Wu 2009
study (Tr. They argue that to ?nd a ?better? odds ratio Yessaian switched to a
different measure of use (years), which she had previously deemed less accurate. When
questioned about this at trial Yessaian testi?ed that the category for 50000 lifetime applications
applied to a combined genital and non-genital use, even though previously she testi?ed that talc
could not reach the ovaries through non-genital applications. (Tr. 

In contrast to Yessaian?s testimony, Defendants assert their experts provided persuasive
testimony that there was no in?ammation in Echeveria?s ovarian tissue, that most ovarian
cancers are idiopathic, and that Echeverria had multiple risk factors that could account for her
disease regardless of her talc use.

Echeverria asserts that suf?cient evidence supporting thejury?s verdict was presented,
Echeverria agrees that the evidence showed that the relative risk ratio suggested by the bulk of
the epidemiological studies was 1.3 (Tr. 2236:1-13, She characterizes this number
as statistically signi?cant because talc is a nongenotoxic carcinogen requiring a series of
mutational events to lead to ovarian cancer. (Tr. 1 12727-1 128:15.) Echeverria argues based on
the 6 meta-analyses and the Terry pooled analysis, plus the consistency of the 28 epidemiology
studies, it is almost impossible that association is attributable to chance or bias. (Tr. 1563:5-18,
2314:1-20, 2236:1-13, 2249:7?14, Ex. 27 

Echeverria?s opposition also argues that as to biological plausibility, she presented
evidence that in?ammation is a valid hypothesis as to how talc causes cancer.

She notes that animal studies in 1992 by the NTP found lung cancer in rats exposed to
high levels of aerosolized talc.

Finally, repeating arguments made in Opposition to the motion for JNOV, she argues that
since 1964 Defendants have been aware of ?the talcr'ovary problem? and yet failed to warn

(Opposition at 5:13-14) or donate to cancer research (Ex P-SS).

 

 

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Defendants respond that Echeverria?s in?ammation hypothesis is not supported by
studies and there was no evidence presented that the kind of in?ammation Speci?c to tale is
linked to cancer. As to Echeverria?s argument that based on meta-analysis and the Terry study. it
[8 almost impossible that the 1.3 association is attributable to chance or bias, Defendants note that
Echeverria does not dispute that the association could be based on confounding. something her
own expert admits is not eliminated in meta-analysis. (Tr. 

Defendant also argues that the weight of evidence did not establish a duty to warn
because such a duty is only triggered when the prevailing scienti?c and medical knowledge
supports it. (VaZentine v. Baxter Healthcare Corp. (1999) 68 Cal.App.4'l1 1467, 1483-84.)

Finally, defendants suggest thejury was likely confused by repeated suggestions that the
possibility of risk alone was suf?cient to impose a duty to warn. (Tr. 656:15-689:27-691 :19
(mistrial requested on argument in opening statement); 3997:19-399824; 4005:22-27 (closing
argument.)

Sitting as the thirteenth juror the Court is of the ?rm conclusion that the evidence of
speci?c causation is not suf?cient to support the verdict, for the reasons set forth above
respecting the JNOV, which are incorporated here in their entirety, and for the additional reason
that Yessaian did not consider all available epidemiology and apply it to the facts relative to
Echeverria except when it favored Echeverria. There was a lack of any proper testimony as to
speci?c causation. In addition, and as to general causation, the Court reSpects the testimony of
Siemiatycki to the effect that there have been many instances in history where a disease agent
was identi?ed notwithstanding that the exact mechanism by which the disease was caused was
not identi?ed. Further, given the nature of in?ammatory responses, it is understandable that
in?ammation may not be easily shown, as Echeverria?s experts testi?ed. However, given the
lack of anything other than a hypothesis about causation and the nature of the epidemiological
evidence presented, defendants are entitled to a new trial pursuant to Cal. Code of Civ. Pro. 

657(6), as both speci?c and general causation evidence was lacking.

Ir II

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(2) CCP ?657(l) (7) - Erroneous Rulings and Improper Arguments

In order to grant a new trial based on errors in law at trial, the error must have been
prejudicial (Cal. Const. Article VI, and erroneous as a matter of law (Tun v. Wells Fargo
Dealer Services, Inc. (2016) 5 Cala?lppj?h 309, 323). Additionally, the error must have been
raised at trial. In support of their motion defendants submitted the Declarations of Jurors and

2. Echeverria countered with the Declarations of Jurors 8 and 10.

1. Yessaian

Defendants argue that Yessaian?s testimony should have been excluded or stricken
because she relied on the false assumption that an odds ratio of 1.51 was sufficient to show
probability. Additionally, her testimony should have been stricken when she violated the Court?s
order limiting it to the four epidemiology studies as her basis for ruling in talc as the cause of
Echeverria?s cancer. They argue Yessaian violated that order by testifying that the four
epidemiological studies were not the sole studies she relied on (Tr. 2820:l but
instead that she relied on other epidemiological studies with risk ratios of 1.2 to 1.3 which, in her.
view, showed in increase in risk that supported ?nding talc the probable cause of Echeverria?s
cancer. (Tr. This was misleading because a risk ratio of less than 2.0 actually tends
to disprove causation. Defendants moved to strike this testimony but the Court denied the
motion. (Tr. 

Echeverria contends these criticisms go to the weight, not admissibility of Yessaian's
testimony. In addition, they argue the Court indicated that Yessaian was not limited to the four
studies but could also testify as to Echeverria?s medical history, general literature, and risk
factors that she ruled out, citing the ruling on the motion in limine. Echeverria argues there was
no showing of prejudice, noting that thejuror declarations (which Echeverria argues should be
stricken) do not say the outcome would have been different without Yessaian?s testimony.
Jurors 8 and 10 say they considered all the evidence and even Jurors and 2 do not say the

outcome would have been different without Yessaian?s testimony. Finally, Echeverria points out

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that Defendants were free to, and did, criticize Yessaian?s testimony by way of cross-
examination and in closing arguments. (Tr. 

Echeverria is correct that in the absence of af?davits showing prejudice, the Court may
not grant a new trial under Cal. Code of Civ. Pro. ?657(1). See Cal. Code of Civ. Pro ?658.
Accordingly, the motion for new trial on this ground is denied.

However, for the reasons set forth above the Court is persuaded that the testimony of
Yessaian was insuf?cient to establish speci?c causation and should therefore have been stricken.

The motion is granted on this basis under Cal. Code of Civ. Pro. ?657(7) as to both defendants.

2. CA CI 43 I

The Court relied upon Cooper v. Takeda Pharmaceuticais America, Inc. (2015) 239 Cal.
App. 4?'1 555 in instructing under CACI 43] (multiple causation), although it indicated that it had
some doubt this was appropriate. ?[W]hen deciding whether an error of instructional omission
was prejudicial, the court must also evaluate (1) the state of the evidence, (2) the effect of other
instruction, (3) the effect of counsel?s arguments, and (4) any indications by thejury itself that it
was misled.? (Soule v. General Motors Corp. (1994) 8 Cal.4lh 548, 580-581.)

Defendants argue that, unlike in Cooper, there was no factual basis to instruct on 
431 because Echeverria did not present evidence of any speci?c concurrent cause. Here,
Yessaian did not rule in other causes while opining that talc was the most substantial factor. (Tr.
2676:1-3, 2929:21-2930z7; 

Defendants argue given the Court?s rulings that Yessaian was precluded from testifying
as to a possible ?synergistic effect? that cause Echeverria?s cancer, the fact that neither Godleski
nor Yessaian testi?ed to the biological plausibility of combined concurring causes, and the fact
that defense expert Juan Felix, M.D. testi?ed without contradiction that talc-based adhesions
would not promote the growth of existing ovarian cancer (Tr. there was no basis for
a multiple cause instruction. They contend giving the instruction likely prejudiced the results by
diluting Echeverria?s burden to show that talc was the ?but for? cause. Defendants argue that at a

critical point in deliberations, the jury discussed multiple causation (Juror #1 Declaration. 2-

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3), making it reasonably probable thejury would have reached a different result if properly
instructed.

Echeverria argues that on cross-examination, Yessaian testi?ed to Echeverria?s family
history of cancer, obesity, smoking, age, age at menarche, and genetics as possible factors in
causing her cancer. (Tr. 2118:18-2119:9; 287524-10; 2876:] 14; 
But, she also testi?ed that as to each factor she determined that it was not a ?probable? cause of
Echeverria?s cancer. It is also true, however, that defendants argued to thejury there could be
other causes for Echeverria's cancer, including unknown causes.

There are no admissiblejuror af?davits that suggest prejudice, confusion or the like.
Thus, the motion cannot be granted under Cal. Code of Civ. Pro. ?657(1). As to whether there
was error of law the Court notes, as it did at trial, that in a case involving whether an agent
causes cancer, where it must be shown by a more probable than not standard II in excess of 50%)
that the agent caused the disease, CACI 431 is inherently confusing because, by de?nition,
alternate ?causes? must be less than 50% probable. That is, there cannot be more than one
?probable? cause in a cancer case as a mathematical matter. Nonetheless, given defendants?
arguments that alternate unknown causes were possible causes of Echeverria?s cancer, the Court
is bound by Cooper and denies the motion on the basis of imprOper instruction under Cal. Code

ofCiv. Pro. 657(7).

3. Condom Article Ex. 19

Defendants argue that the Court improperly allowed Exhibit P-l9 to be shown to the jury.
The article asserts that concern about talc as an ovarian carcinogen in the medical literature goes
back 50 years and that condom makers removed talc from condoms in the 19905 for that reason.
Defendants argue that the Court struck Echeverria?s attempt to introduce the article through
Plunkett?s testimony and then improperly allowed it to be introduced through defendants? expert
(Andersen) even though the condom article was not part of the testimony Plunkett actually gave
at trial and was only reviewed by Andersen as part of his consideration of Plunkett?s testimony

and report. (Tr. Echeverria did not ask Andersen anything about the article

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other than whether he had seen it. (Tr. Although the Court gave a limiting
instruction, Echeverria?s counsel referred to it several times in closing argument. (Tr. 3928: 1 0-
21; 3947:21-3948:1; 3948:4-9; 3950:14-15; 3995:25-26: stating to thejury that
?concern about talc as an ovarian carcinogen goes back 50 years in the medical literature? (Tr.
3947: 22-248) and arguing that the condom industry removed talc from condoms in 1996
because of ovarian cancer concerns (Tr. 3950: l4? l6).

Echeverria contends there was nothing wrong with permitting cross~examination of
Andersen about the article (since he said he relied on it in forming his opinion} 3395:9-
3396:18; 3396zl6~22), or about allowing Echeverria?s counsel to refer to it in closing arguments.
Further, the Court gave a limiting instruction that it was not admissible for its truth but only for
purposes of notice. (Tr. 

The Court concurs that Ex. 19 should not have been admitted and counsel?s reference to
it was both prejudicial and undermined the limiting instruction. The Supreme Court held in
People v. Sanchez (2016) 63 Cal. 4?h 665 that an expert may not testify as to case Speci?c
hearsay or use same as the basis for his Opinion without establishing an applicable hearsay
exception. The reasoning behind the opinion was the Court?s recognition, among other things,
that ?[w]hen an expert relies on hearsay to provide case-speci?c facts, considers the statements
as true, and relates them to the jury as a reliable basis for the expert?s opinion, it cannot logically
be asserted that the hearsay content is not offered for its truth. In such a case, ?the validity of [the
expert's] opinion ultimately turn[s] on the truth.? (Id. at 682-683, quoting Williams Villr'nos
(2012) 567 U.S. 90). The court disapproved the use of a limiting instruction in these
circumstances.

Here, the only evidence was that Andersen read the neWSpaper article because it was

attached to Plunkett?s report and was the basis of her opinion. Contrary to the representation of

counsel that he would ?link up? the article to his cross examination of Andersen as to the basis of
Andersen?s opinion, he did not do so but simply read it into the record and then proceeded to

argue to the jury that the facts contained within it were true. This resulted in a situation akin to

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what Sanchez sought to avoid?having the jury receive a fact as true through expert testimony
when the fact as not been established in any reliable way. And, repeated references to it were
clearly prejudicial as it was a key piece of evidence that Echeverria?s counsel (Mr. Smith) relied
upon in arguing that defendants knew or should have known that talc caused cancer and failed to

warn of the risks in derogation of safety to the public.
Together with the other evidentiary failures a new trial on this basis is prOper as to both

defendants under Cal. Code of Civ. Pro. 657(7).

4. Lobbying

Defendants argue that Echeverria?s counsel disregarded limitations on use of lobbying
evidence. After rejecting Echeverria?s theory of conspiracy to in?uence regulatory agencies, (Tr.
the Court allowed in certain documents about attempts to in?uence NTP or
IARC. (Ex. P-27, P-263, P-264, P-396) for the limited purpose of showing Defendant?s
knowledge that talc was being considered a carcinogen. (Tr. Defense counsel
objected to various lobbying exhibits and moved for a mistrial after Echeverria?s counsel argued
about lobbying in opening statement. (Tr. 691 :20-693:1 .)

Defendants contend Echeverria?ss counsel disregarded the limiting instruction, and this
conduct was repeated and unmistakably intentional. (Tr. 3982:25-3981 4094: 1 
4090:5-1 1; 4093:27-28; 3989:24-3991 18; 3984: 1 7-1 8; 4002:27-4003:2; 3318:20-28; 670:2-15;
3978:4?8; 

Echeverria takes the position that there was nothing improper about referring to lobbying
evidence in closing argument. Echeverria argues that counsel are entitled to state their views as
to what the evidence shows, citing Wegner, Civil Trials and Evidence (2017) at 13:42. Further,
the Court gave a limiting instruction. (Tr. 3990629690823), while allowing thejury to consider
evidence of lobbying to show knowledge of the danger of the product. (Tr. 3933:13-28; 4000:21-
4001 

45

 

20

2t

22

23

 

 

While counsel are entitled to argue the evidence, they must do so consistent with a
limiting instruction. (Love v. Wolf (1964) 226 Cal. App. 2d 378, 389.) Echeverria?s counsel did
not limit his argument to suggesting that the lobbying evidence suggested that defendants knew
that there was scienti?c evidence concerning the possible link between talc and ovarian cancer.
Rather, Echeverria?s counsel (Mr. Smith) argued that defendants imprOperly ?fended off? the
NTP and stated that ?if Johnson Johnson would have just stayed out of it, let the scientists do
their work at the US. government, the NTP would have listed talc as a carcinogen as far back as
2000. (TR Counsel went on to argue that what defendants did to "prevent
regulation? was reprehensible conduct supporting an award of punitive damages. 3984:] 7-

18.)

Although thejury was instructed that lobbying activity was permissible, the totality of
this argument disregarded the Court?s limiting instruction and must be viewed as prejudicial and
further grounds for a new trial as to both defendants under Cal. Code of Civ. Pro. Code of Civ.

Pro. ?657(7).

(3) Cal. Code of Civ. Pro. 657(2) --Jury Misconduct

Defendants argue that thejury engaged in misconduct by considering attorneys? fees and
taxes in its compensatory award and by setting the amount of compensatory damages based on
the net worth of the defendants. Defendants offer the declaration of Juror #1 (MM, the
foreperson) and Juror #2 (J .D.H.) Echeverria offers the af?davits of Juror #8 (PC) and Juror
#10 (NF).

The three-step inquiry into jury misconduct includes (1) whether the af?davits supporting
the motion are admissible, (2) whether the facts establish misconduct, and (3) if so, whether it
was prejudicial. (Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4[h 149, 160.)

Under California law juror af?davits attesting to the jury?s ?mental processes? are

prohibited. However, consideration of ?statements made? or ?conduct occurring" during

46

 

(deliberations is permissible. (Cal. Ev. Code 1 150: Krouse v. Graham (1977) 19 Cal.3d 59, 80;
In re Stankewit: (1985) 40 Cal. 3d 391, 397-402.)

Defendants argue that thejury engaged in two forms of misconduct.

First, thejury improperly considering attorney fees, appellate costs and taxes in
determining Echeverria?s noneconomic damages. {Declaration of Juror No. 1, 114; Declaration of
Juror No. 2, 116.) Echeverria argues this evidence should be disregarded because it is hearsay and
goes to the jury?s mental process. She also argues that the conduct does not amount to
misconduct in any event because Jurors 8 and IO disagree. Finally, Echeverria argues that if
there was misconduct, it was not prejudicial because Jurors and 2 at most say they did not
participate in the deliberations regarding damages; Defendants have not shown that absent the
alleged misconduct a different result would have been reached. Defendants argue in Reply that
the declarations provide clear testimony thatjurors discussed and agreed to base compensatory
damages on attorneys? fees, appellate costs, taxes, and Defendants? wealth, which establishes
prejudicial misconduct.

The evidence in thejury declarations is mixed as to its admissibility. Speci?c rulings 0n
the objections are appended. Brie?y, however, the statements by Jurors 1 and 2 that ?[Jurors]
stated that taxes, appeal costs and expenses would be taken out of Ms. Echeverria?s
compensation? and ?Afterjurors raised these arguments, otherjurors expressed an agreement to
raise the amount of damages? are admissible. The statements are proof of an overt act (an
agreement to raise damages based on impermissible considerations). They are not hearsay. The I
statements are not admitted to show they are true (that Echeverria would pay fees and taxes) but
to show the statement was made. As the Supreme Court explained in Weathers v. Kaiser Found.
Hospitals: ?hearsay is de?ned as ?evidence of a statement that was made other than by a witness
while testifying at the hearing and that is offered to prove the truth of the matter stated. Evid.
Code, 1200, subd. (Italics added.) However ?there is a well-established exception or
departure from the hearsay rule applying to cases in which the very fact in controversy is
whether certain things were said . . . and not . . . whether these things were true or false, and in

these cases the are admissible not as hearsay, but as original evidence.? (Weathers v.

47

 

22

23

24

25

 

 

Kaiser Found. Hows, (1971) 5 Cal. 3d 98, 109-1 10, citing People v. Henry (1948) 86
Cal.App.2d 785, 789. See also Enyar! v. City QfLosAngeles, 76 Cal. App. 4th 499, 508, n. 5
[Statements re?ecting on the bias of the jurors who uttered them are not hearsay]).

Although Echeverria secured juror declarations they did not refute what Jurors 1 and 2
reported. An agreement to exclude improper items of compensation such as taxes and fees in a
verdict is improper, particularly where the jury was instructed as to what they could consider.
(Krouse, 19 Cal. 3d at 80?81; Trammell v. McDonnell Douglas (1984) 163 Cal. App. 3d 157,
172). On the evidence here the Court is constrained to conclude that consideration of items of
damages such as taxes and fees was serious misconduct, giving rise to a presumption of
prejudice. No rebuttable evidence was offered. A new trial on this basis is thus required as to
both defendants under Cal. Code of Civ. Pro. 657(2), particularly given that this was a 9-3
verdict. (Weathers v. Kaiser, 5 Cal. 3d at 110.)

Defendants also argue that the jury impr0perly based compensatory damages on
Defendants? wealth and apportioned the damages according to net worth. Thejury awarded $68
million in noneconomic damages against Johnson Johnson as compared to the company?s $68
billion net worth, and $2 million against JJCI as compared to its $2 billion net worth. While it
may be inferred that the verdict was the result of consideration of wealth, statements regarding
the manner in which thejury deliberated are inadmissible. A new trial cannot be granted on this

basis.

(4) Cal. Code of Civ. Pro. ?657(5) Excessive Damages

Compensatory Damages

Defendants argue the compensatory damage award is excessive on its face, and grossly
disPrOportionate to the verdicts in prior talc-cancer cases and similar cases where plaintiff
established that he or she was diagnosed with terminal cancer caused by defendant's product.

Defendants contend this is due to improper arguments by Echeverria?s counsel.

48

 

23

24

25

 

 

The evidence was that Echeverria was diagnosed with cancer in 2007. She underwent
surgery and multiple rounds of chemotherapy, including clinical trials, and endured their side
effects, for ten years. She testi?ed that she has pain from tumors that have developed since her
surgery. (Tr. 3010:1-301 1:3; Tr. 2574: 26-2577: 28; She testi?ed that she
feared death when she became ill in late 2016 and was hospitalized with sepsis. (Tr. 2998:28-
2999:2.) She testi?ed to her fears and to the impact that her illness has had on her family,
particularly her daughter, who took on the responsibility for her care at age 16 and delayed
graduation from high school as a result, as well as her sadness at the potential of losing her
relationship with her young grandson. (Tr. 301 1: 4-19.) Yessaian testi?ed that Echeverria had
complications from the chemotherapy, resulting in multiple hospitalizations. She also testi?ed
that for a woman of Echeverria?s age the average life expectancy is 81 years. (Tr. 

Given this testimony the Court is not persuaded that the compensatory damages against
JCCI million) can be deemed excessive if liability were established. The number is well in
line with other verdicts in comparable cases. Accordingly, as to the motion for new trial on
grounds of excessive damages is denied.

As to Johnson Johnson, however, the court is convinced that thejury should have
reached a different verdict. The compensatory verdict ($68 million) is plainly excessive. As
found, infra, there is no evidence Johnson Johnson manufactured baby powder after 1967 and
there is no evidence it manufactured Shower to Shower. Yet, thejury apportioned the damages
97% to Johnson Johnson. Given the misconduct of the jury in considering matters that were
not to be included, and the arguments of counsel that were in violation of the Court?s in limine
motions, and given the other reasons why a new trial is required, a remittitur is not appropriate.
A new trial is required on the basis of excessive noneconomic damages is granted as to Johnson
Johnson under Cal. Code. of Civ. Pro. 657(5).

(ii) Punitive Damages

Defendants argue that the punitive damage award is against the weight of evidence and
excessive. Defendants contend Echeverria failed to establish by clear and convincing evidence

that Defendants acted with malice. Even if allowed, Defendants contend the Court should reduce

49

 



La)

 

 

the damages as excessive and the product of passion and prejudice, driven by improper
arguments seeking to punish Defendants for protected First Amendment activity and in violation
of due process. BMW of North America v. Gore (1996) 517 U.S. 559, 574-575 indicates that
punitive damages are to be reviewed based on (1) the degree of reprehensibility, (2) the disparity
between the actual or potential harm suffered by the plaintiff and the punitive damage award, and
(3) a comparison to civil penalties in comparable cases. Focusing on the second factor,
Defendants cites case law showing historical practice is to compare the ratio of punitive to
compensatory damages, and, although bright-line rules are to be eschewed, awards of more than
four times the amount of compensatory damages, ?might be close to the line of constitutional
impropriety? (Slate Farm Mutual A uto Ins. Co. v. Campbell (2003) 538 1; .S. 408, 425), but
Where compensatory damages are substantial, a lesser ratio 1:1) can reach the due process limit.

(Ibid.) Ratios of 9:1 are inherently suspect. (Simon v. San Paolo U.S. Holding (2005) 35

 

Cal.4th 1 159, 1 182.) Echeverria points out that the 5:1 ratio here is well within the limits that
have consistently been upheld but does not identify a case upholding a very signi?cant punitive
damages award layered on top of a substantial compensatory damage award.

It is suf?cient to state for these purposes that the evidence was insuf?cient to uphold a
punitive damage award of any kind. Analysis of what constitutes a ?proper? amount of punitive
damages is thus unnecessary. The punitive damages were excessive based on the evidence. A

new trial is required as to both defendants under Cal. Code of Civ. Pro. 657(5).
V. ORDER

For the foregoing reasons:

(1) The motions for JNOV by Johnson Johnson and JCCI are granted;

 

(2) The motions for new trial by Johnson Johnson and CCI on grounds of (1)
insuf?ciency of the evidence as to causation as to both defendants (Cal. Code of Civ. 5

Pro. 657(6)); (2) error in law occurring at trial and excepted to by defendants (Cal.

Code of Civ. Pro. 657(7); (3) misconduct of thejury (Cal. Code of Civ. Pro. 657(2);

50

 

 

 

Civ. Pro. 657(2); and (4) excessive compensatory damages (as to Johnson Johnson)
and excessive punitive damages (as to both defendants)(Cal. Code of Civ. Pro. 657(5)

are granted.

Dated: [0/3 I 9 . 
MAREN B. NELSON
Judge of the Superior Court

51

 

PLEADINGS CONSIDERED

Filed September 5.. 2017

Defendant Johnson Johnson?s Notice of Intention to Move for a New Trial

Defendant Johnson Johnson?s Notice of Motion for Judgment Notwithstanding the
Verdict

Defendant Johnson Johnson Consumer lnc.?s Notice of Motion for Judgment
Notwithstanding the Verdict

Filed September 15., 2017
Defendants? Motion for New Trial (Combined Memorandum of Points and Authorities)

Defendants? Compendium of Trial Transcripts (Volumes I and II)

0 Declaration of Bart H. Williams in Support of Johnson Johnson and Johnson 
Johnson Consumer, Inc.?s Motions for New Trial and Motions for Judgment
Notwithstanding the Verdict

I Notice of Lodging Exhibits and to the Williams Declaration
Conditionally Under Seal
I Notice of Lodging Exhibits the
Williams Declaration Conditionally Under Seal
0 Declaration of Juror Number 1
0 Declaration of Juror Number 2

Filed September 25, 2017
Plaintiff Eva Echeverria?s Opposition to the Johnson Johnson Defendants? Motion for
New Trial
Plaintiff Eva Echeverria?s Opposition to Defendant Johnson Johnson?s Motion for
Judgment Notwithstanding the Verdict
Plaintiff Eva Echeverria?s Opposition to Defendant Johnson Johnson Consumer, lnc.?s
Motion for Judgment Notwithstanding the Verdict

0 Declaration of Mark P. Robinson, Jr. (Under Seal and Redacted Versions)

0 Plaintiff Eva Echeverria?s Compendium of Trial Transcript Excerpts

Evidentiary Objections to Declarations of Juror No. 1 and Juror No. 2

0 Request by Plaintiff and Motion to Strike Declarations of Juror Nos. 1 and 2
Submitted by Defendants
Af?davit of Juror Number 8 (RC)
0 Af?davit of Juror Number 10 (N .F.)

0

Filed October 3, 2017
Defendants? Reply in Support of Motions for New Trial
0 Defendants? Response to Plaintiff?s Request to Strike and Evidentiary Objections
re Juror Declarations Submitted in Support of Motion for New Trial
a Defendants? Objections to Plaintiff?s Juror Af?davits re Defendants? Motions for
New Trial
0 Defendants? Supplemental Compendium of Trial Transcript Excerpts
Defendant Johnson Johnson Consumer, lnc.?s Reply in Support of Motion for
Judgment Notwithstanding the Verdict

52

 

20

2]

22

23

25

u?I- In. an. 1a In.- a- luau - 

 

 

0 Defendant Johnson Johnson?s Reply in Support of Motion for Judgment
Notwithstanding the Verdict

Filed October 13. 2017
Plaintiffs Supplemental Brief re Court?s Questions at Hearing on Post-Trial Motions

Filed October 16., 2017
Defendants? response to Plaintiff? 3 Supplemental Post-Hearing Brief

 

 



 






II.

 

Material Objected to:

Grounds for Objection:

EVIOENTIARY OBJECTIONS TO THE DECLARATION OF JUROR N0. 1 (M.M.)

Ruling:

 

 

There were extensive

discussions among the jurors

?about. the distinction between

?possible? and ?probable?
causes. I raised that distinction
several times. At one point
while we were discussing this
issue, one of the jurors raised
the jury

?Multiple

and pointed to
instruction on
Causes,? which said in effect
that there could be more than
one substantial cause. After
that, jurors in favor of the
plaintiff relied heavily on that
instruction in their arguments to
Juror No. 1

other jurors.?

Decl., at 11 3 (italics added).

 

Inadmissible pursuant to Evid. Code 1150.
The statements in paragraph 3 of Juror No. 1?s
declaration concern the mental processes,
deliberative thinking, and subjective reasoning of
the jury regarding how the verdict was reached.
Such statements are inadmissible pursuant to

Evid. Code 1150 and cannot be used to try to

Sustained
El Overruled

 

 

impeach the verdict. See Evid. Code 1150(a); I

see also LA. supra; Cal. Judges Benchbook Civ.
Proc. After Trial, Chp. 2, at 2.27. ?When a juror

. . . gives the reasons for his or her vote, the words

are a verbal re?ection of the juror?s mental-

processes, and consideration of such a statement
as evidence of those processes is barred by Evid.
Code 1150.? Id.

Hearsay. Juror No. 1?s statements about what
other (unidenti?ed) jurors discussed or raised
verbally is inadmissible hearsay.

Speculation. Juror No.1?s statement about what
he thinks other jurors thought was important or
what they ?relied heavily on? is speculation, lacks
foundation and personal knowledge as to the
thinking and decision-making of other jurors.

Lacks foundation, lacks detail, and conclusory.

 

 

 

I3 Sustained

Overruled

 

li/Sustained

Overruled

El Sustained
Overruled

 

 

 

Arr"-

 

 

EVIDENTIARY OBJECTIONS BY PLAINTIFF EVA ECHEVERRIA TO DECLARATIONS OF

JUROR NO. 1 AND JUROR NO. 2

 

 

 

 

 

Material Objected to:

Grounds for Objection:

Ruling:

 

?64
?conomic damages,
initially discussed

much _lower th

to paid and were going to
. They
also stated that taxes, appeal
costs, and expenses would be
taken out of Ms. Echeverria?s
compensation or out of the
money received by Ms.
Echeverria?s daughter when
Ms. Echeverria passed away.
After

jurors raised those

arguments, other jurors
expressed an agreement to raise
the amount of the damages.?
Juror No. 1 Decl., at 1  4 (italics

added).

 

 

 

   
  
   
  

 

Inadmissible pursuant to Evid. Code 1150.
The statements in paragraph 4 of Juror No. 1?s
declaration concern the mental processes,
deliberative thinking, and subj ective reasoning of
the jury regarding how the verdict was reached.
The statements are inadmissible pursuant to Evid.
Code 1150 and cannot be used to try to impeach
the verdict. See Evid. Code 1150(a); see also 
LA. supra; Cal. Judges Benchbook Civ. Proc.
After Trial, Chp. 2, at 2.27. ?Juror declarations
that purport to show a deliberative error by one or
more jurors are inadmissible to impeach the
verdict, as are juror declarations that purport to
show . . . [h]ow the jurors arrived at the award of
damages.? Cal. Judges Benchbook Civ. Proc.
After Trial, Chp. 2, at 2.29 (citing Maxwell v.
Powers (1994) 22 Cal.App.4th 1596, 1604?05).
Hearsay. Juror No. 1?s statements about other
(unidenti?ed) jurors? ?discussions,? their
?arguments? or what they ?argued,? what they
?stated,? what they ?expressed,? or ?raised?
verbally is inadmissible hearsay.

Lacks foundation, lacks detail, and conclusory.
Neither the substance of any such statements by
others nor their identity is provided. The

statements are vague and conclusory.

El Sustained

E/Overruled





9%

El Sustained

m/Overruled

Sustained

lit/Overruled

 

to
149-






 



 

EVIDENTIARY OBJECTIONS BY PLAINTIFF EVA ECI-IEVERRIA TO DECLARATIONS OF

JUROR NO. 1 AND JUROR NO. 2

 

 

 

 

 

Material Objected to:

Grounds for Objection:

Ruling:

 

 


the

   
   
   
 

jury ?rst

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

vote, (as

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

amount of

The

views on the
compensatory damages.
other two defense jurors did not
participate in the discussion of
compensatory damages after
the poll was taken regarding
their participation.? Juror No. 1
Decl., at 1[ 5 (italics added).

 

Inadmissible pursuant to Evid. Code 1150.
The statements in paragraph 5 of Juror No. 1?s
declaration concern the mental processes,
deliberative thinking, and subjective reasoning of
the jury regarding how the verdict was reached.
Such statements are inadmissible pursuant to
Evid. Code 1150 and cannot be used to try to
impeach the verdict. See Evid. Code 1150(a);
see also LA. supra. ?No evidence is admissible
to show the effect (of improper in?uences) upon
a juror in in?uencing him to assent to or dissent
from the verdict or concerning the mental
processes by which it was determined.? Evid.
Code 1150(a) (emphasis added).

Hearsay. Juror No. 1?s statements about what one
or more jurors (unidenti?ed by name or juror
number) supposedly said, discussed or expressed
is inadmissible hearsay.

Lacks foundation, lacks detail, and conclusory.
Juror No. 1 does not have personal knowledge

regarding the extent of participation of other

jurors in discussions in the deliberation process.

 

Wen

G/Overruled

'35

n??g me"
Powhatan-d1?



Sustained
til/Overruled

El Sustained

u/oven?uled

 

 

18-51

 

EVIDENTIARY OBJECTIONS BY PLAINTIFF EVA TO DECLARATIONS OF

JUROR NO. 1 AND JUROR NO. 2

 

 

Material Objected to:

Grounds for Objection:

Ruling:

 

 

 

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 
Juror No. 1 Decl., at 1[ 6 (italics

added).

 

Inadmissible pursuant to Evid. Code 1150.
The statements in paragraph 6 of Juror No. 1?s
declaration concern the mental processes,
deliberative thinking, and subjective reasoning of
the jury regarding how the verdict was reached.
These statements are inadmissible pursuant to
Evid. Code 1150 and cannot be used to try to
impeach the verdict. See Evid. Code 1150(a);
see also LA. supra; Cal. Judges Benchbook Civ.
Proc. After Trial, Chp. 2, at 2.27. ?Juror
declarations that purport to show a deliberative
error by one or more jurors are inadmissible to
impeach the verdict, as are juror declarations that
purport to show . . . [h]ow the jurors arrived at the
award of damages.? Id. at 2.29 (citing Maxwell
v. Powers (1994) 22 Cal.App.4th 1596, 1604-05).
Hearsay. Juror No. 1?s statements about what
other (unidenti?ed) jurors ?discussed? or
?agreed? regarding their decision-making process
in awarding damages is inadmissible hearsay.

Speculation, lacks foundation, lacks personal
knowledge, conclusory. In paragraph 5, Juror
No. 1 said that he and the other ?defense jurors?
did not participate in the damages discussion. If
that was true, it would mean that he lacks

foundation and personal knowledge to state why

or how other jurors ?agreed? to assess damages.

 

Sustained
Iii/Overruled
Sums-VS 641"


Jlei:

Sustained



Sustained

lit/Overruled

 

 

 

 

2-5?1?

 

EVIDENTIARY OBJECTIONS BY PLAINTIFF EVA ECHEVERRIA TO DECLARATIONS OF

JUROR NO. 1 AND JUROR NO. 2

 



Material Objected to:

Grounds for Objection:

Ruling:

 

ag s, the jurors
who voted in favor of liability
discussed-and agreed to set the
number based on a percentage
of the Defendants? net worth, as
Allen Smith had argued in
closing argument.? Juror No. 1

Decl., at 7 (italics added).

 

 

 

   

 

Inadmissible pursuant to Evid. Code 1150.
The statements in paragraph 7 concern the mental
processes, deliberative thinking, and subjective
reasoning of the jury regarding how the verdict
was reached. Such statements are inadmissible.
See Evid. Code 1150(a); see also LA. supra;
Statements in ?juror declarations that purport to
show . . . [h]ow the jurors arrived at the award of
damages? are inadmissible. Cal. Judges
Benchbook Civ. Proc. After Trial, Chp. 2, 2.29.
Hearsay. Juror No. 1?s statements about what
other (unidenti?ed) jurors ?discussed? or
?agreed? regarding their decision-making process
in awarding damages is inadmissible hearsay.
Speculation, lacks foundation, lacks personal
knowledge. Juror No. 1 lacks personal
knowledge and his statements lack foundation as
to what other jurors discussed or how or why they
decided or ?agreed? to award damages.

Not relevant. Evid. Code 350. It is not
misconduct to consider the defendant?s net worth
in awarding punitive damages. CACI 3945. See
also Cal. Judges Benchbook Civ. Proc. After
Trial, Chp. 2, 2.53 damages must
be supported by . . . evidence of the defendant?s
?nancial condition? and ?the defendant?s net

worth is the critical determinant?).

 

El Sustained
li/Overruled

El Sustained
Ii/Overruled

El Sustained

3/ Overruled

El Sustained

9/ Overruled

 

 

 



 

EVIDENTLARY BY PLAINTIFF ECHEVERRIA To DECLARATIONS or

JUROR NO. 1 AND JUROR NO. 2

 






 

Material Objected to:

Grounds for Objection:

Ruling:

 

 

When the jury was at a
six-to-six impasse on the Friday
before the verdict, one plaintiff
juror expressed that she no
longer wanted to participate.
She even turned her chair away
?'om the table. I wrote a note to
the Court about the impasse.
After we received a note back
from the Court, we continued to

but the

jury

continued to be divided and

deliberate,

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 the jury
because of her frustration. She
began writing a letter in front of
the other jurors.? Juror No. 1

Decl., at 8 (italics added).

 

Inadmissible pursuant to Evid. Code 1150.
The statements in paragraph 8 concern the mental
processes, deliberative thinking, and subjective
reasoning of the jury regarding how the verdict
was reached. The statements are inadmissible.
See Evid. Code 1150(a); see also LA. supra.
?No evidence is admissible to show the effect (of
improper in?uences) upon a juror in in?uencing
him to assent to or dissent from the verdict or
concerning the mental processes by which it was
determined.? Evid. Code 1150(3).

Hearsay. Juror No. 1?s statements about what
some other (unidenti?ed) juror ?expressed? or
?told? him or said she was going to ?ask? is
inadmissible hearsay.

Speculation, lacks foundation, lacks personal
knowledge. Juror No. 1?s statements regarding
why he thinks some other juror (who is not even
identi?ed) was frustrated is speculation and lacks
foundation.

Not relevant. See Evid. Code 350. The fact
that one juror at one point in time was frustrated
or supposedly said that she was going to write a
letter to the judge is not relevant. The statements
do not show misconduct, that the juror refused to

continue to deliberate or did anything improper.

 

2/ Sustained

El Overruled

[D/Sustained
Overruled

Wistained

El Overruled

?tained

El Overruled

 

 

 

as??

 

EVIDENTIARY OBJECTIONS BY PLAINTIFF EVA ECI-IEVERRIA TO DECLARATIONS OF

JUROR NO. 1 AND JUROR NO. 2

 

 






 

Material Objected to:

Grounds for Objection:

Ruling:

 

 

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

being strongest for defense, and

?10? being strongest for
plainti?). Using that
methodology, the ?average?

was about a even though
the jury remained divided. The
jury continued to deliberate
through the end of the day on
Friday.? Juror No. 1 Decl., at 11
9 (italics added).

 

Inadmissible pursuant to Evid. Code 1150.
The statements in paragraph 9 are inadmissible
because they concern the mental processes,
deliberative thinking, and subjective reasoning of
the jury regarding how the verdict was reached.
See Evid. Code 1150(a); see also LA. supra.
??Evidence about a jury?s ?subjective collective
mental process purporting to show how the
verdict was reached? is inadmissible.? English v.
Lin (1994) 26 Ca1.App.4th 1187, 1367.

Hearsay. The statements about what some other
jurors ?argued? regarding what they were ?told,?
and methodology referenced is hearsay.
Speculation, lacks foundation, lacks personal
knowledge, lacks detail, conclusory. Juror No.
1?s statements about what he recalls the overall
?average? numbers referenced in the
methodology being ?about? for the other jurors is
Speculation, lack foundation, lack detail, and are
vague and impermissible conclusions.

Not relevant. Jurors can consider the evidence
and ?express opinions regarding it.? People v.
Steele (2002) 27 Ca1.4th 1230, 1266. There is
nothing wrong with ?jurors employ[ing] their
own reasoning skills in a demonstrative manner

. . . to the evidence admitted at trial.? People v.
Vigil (2011) 191 Ca1.App.4th 1474, 1485.

 

a/ Sustained

I3 Overruled

lit/Sustained

Overruled

Ig/Sustained

Overruled

(Zr/Sustained

Overruled

 

 

 

V60

 

EVIDENTLARY OBJECTIONS BY PLAINTIFF EVA TO DECLARATIONS OF

JUROR NO. 1 AND JUROR NO. 2

 

 





2017, the jury was split 6 to 6.
Our foreperson sent a note to
the Judge telling her that the
jury could not reach a verdict.
One plaintiff juror said she no
longer wanted to participate in
discussions. She turned her
chair away from the table and
began writing something. After
we received the note from the
Judge and were still not able to
reach a verdict, someone said
we should just tell the Judge
that we are a hung jury. At that
point, one of the jurors angrily
said that the note we received
from the Judge said we had no
choice but to reach a verdict.?
Juror No. 2 Decl., at 11 2 (italics
added).

 

The statements in paragraph 2 concern the mental
processes, deliberative thinking, and subjective
reasoning of the jury regarding how the verdict
was reached. Such statements are inadmissible.
See Evid. Code 1150(a); see also I.A. supra.
?No evidence is admissible to show the effect (of
improper influences) upon a juror in in?uencing
him to assent to or dissent from the verdict or
concerning the mental processes by which it was
determined.? Evid. Code 1150(a).

Hearsay. Juror No. 2?s statements about what
some other juror (unidenti?ed by name, juror
number or even gender) supposedly said or meant
is inadmissible hearsay.

Speculation, lacks foundation, lacks personal
knowledge, lacks detail, and conclusory. Juror
No. 2?s statements are vague, lack foundation, are
Speculative, conclusory and lack suf?cient detail.
Not relevant. See Evid. Code 350. The fact
that one juror at one point in time may have been
frustrated or supposedly said that she was going
to write a letter to the judge is not relevant. The
statements do not show misconduct, that

deliberations did not continue, or anyone did

anything improper.

 

EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JUROR N0. 2 (J.D.H.)
Material Objected to: Grounds for Objection: Ruling:
On Friday August 18, Inadmissible pursuant to Evid. Code 1150. El Sustained

p/Overruled 

El Sustained

El Overruled

El Sustained

p/ Overruled

B/Sustained

I3 Overruled

 

 

 

K61

 

EVIDENTIARY OBJECTIONS BY PLAINTIFF EVA ECI-IEVERRIA TO DECLARATIONS OF

JUROR NO. 1 AND JUROR NO. 2

 

 




oeucnu-mewowooucxm-p-wmwo

 

 

 

Grounds for Objection:

Ruling:

 

We were not able to 

 

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.? Juror No. 2 .

Decl.,at11 3.

Material Objected to: 

Inadrnissible pursuant to Evid. Code 1150.

reach a verdict on Friday The statements in paragraph 3 concern the mental

processes, deliberative thinking, and subjective

reasoning of the jury regarding how the verdict

was reached. The statements are inadmissible. .

See Evid. Code 1150(3); see also LA. supra.

?No evidence is admissible to show the effect (of i

improper in?uences) upon a juror in in?uencing
him to assent to or dissent from the verdict or
concerning the mental processes by which it was

determined.? Evid. Code 1150(a). ?Evidence

 

 

admission of jurors? testimony describing their
own mental processes, but also by permitting
testimony concerning statements made by jurors
in the course of their deliberations.? People v.

Sanchez (1998) 62 Ca1.App.4th 460, 475-76.

 

I hindsight probing of the trial court.? Maple v.

Cincinatti, Inc. (1985) 163 Cal.App.3d 387, 394.
The rule prevents one or two jurors ?from

upsetting a verdict of the whole jury by

 

 

- process or reasons for assent or dissent.? Wegner,

i at1[18:288.

5452?

 

 

 

Code 1150 may be violated not only by the

?[T]he mental processes of jurors are beyond the 

 

impugning his own or his fellow jurors? mental 

1:1 Sustained

m/Overruled

EVIDENTIARY OBIECTIONS BY PLAINTIFF EVA ECHEVERRIA r0 DECLARATIONS OF

IUROR NO. 1 AND JUROR NO. 2

 

 

 

 






 

Material Objected to:

Grounds for Objection:

Ruling:

 

 

4. ?On Monday August
21, 2017, Most?no
discussion, two more jurors
switched to the plaintiff side,
giving the plaintiff 9 votes.?
Juror No. 2 Decl., at 11 4.

 

Inadmissible pursuant to Evid. Code 1150.
The statements in paragraph 4 concern the mental
processes, deliberative thinking, and subjective
reasoning of the jury regarding how the verdict
was reached. Such statements are inadmissible.
Evid. Code 1150(a); see also LA. supra.

?No evidence is admissible to show the effect (of
improper in?uences) upon a juror in in?uencing
him to assent to or dissent from the verdict or
concerning the mental processes by which it was
determined.? Evid. Code 1150(a). ??Evidence
about a jury?s ?subjective collective mental
process purporting to show how the verdict was
reached? is inadmissible to impeach a jury
verdict.? English v. Lin (1994) 26 Cal.App.4th
1187, 1367. ?[T]he mental processes of jurors? is
not admissible. Maple v. Cincinatti, Inc. (1985)
163 Ca1.App.3d 387, 394.

Speculation, lacks foundation, lacks detail and
conclusory. Juror No. 2 lacks personal
knowledge and her statements lack foundation as
to the reasons and decision making process of the
other jurors after ?almost no discussion? 
whatever that means, and what they considered or
deemed important in reaching their verdict. She
does not say which jurors ?switched? and she

does not say or know why.

 

Sustained

WOverruled

Sustained
WVerruled

 

 

 

 

V563

 

EVIDENTIARY OBJECTIONS BY PLAINTIFF EVA ECI-IEVERRIA TO DECLARATIONS OF

JUROR NO. 1 AND IUROR NO. 2

 



 

 

Material Objected to:

Grounds for Objection:

Ruling:

 

 

Once the discussion of

Wont: 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
jurors voted that we should not
participate, the three of us who
had voted for the defense did
not participate in the discussion
of how to decide on an amount
for compensatory damages, or
on the amount of damages.?

Juror No. 2 Decl., at 11 5 (italics
added).

 

Inadmissible pursuant to Evid. Code 1150.
The statements in paragraph 5 of Juror No. 2?s
declaration concern the mental processes,
deliberative thinking, and subjective reasoning of
the jury regarding how the verdict was reached.
Such are inadmissible statements pursuant to
Evid. Code 1150 and carmot be used to try to
impeach the verdict. See Evid. Code 1150(a);
see also LA. supra. ?No evidence is admissible
to show the effect (of improper in?uences) upon
a juror in in?uencing him to assent to or dissent
from the verdict or conceming the mental
processes by which it was determined.? Evid.
Code 1150(a) (emphasis added). The rule
prevents one or two jurors upsetting a
verdict of the whole jury by impugning his own
or his fellow jurors? mental process or reasons for
assent or dissent.? Wegner, at 1  18:288.
Hearsay. Juror No. 2?s statements about what one
of jurors (Lmidenti?ed by name or juror number)
supposedly said, discussed or expressed is
inadmissible hearsay.

Lacks foundation, lacks detail, and conclusory.
Juror No. 2 does not have personal knowledge
and her vague statements lack foundation
regarding the extent of participation of other

jurors in discussions in the deliberation process.

 

Ij Sustained

m/?verruled

Sustained

Iii/Gven'uled

El Sustained

52/ Overruled

 

 

mid-f

 

EVIDENTIARY OBJECTIONS BY PLAINTIFF EVA ECI-IEVERRIA TO DECLARATIONS OF

JUROR NO. 1 AND JUROR NO. 2

 

 

 

 

Material Objected to:

Grounds for Objection:

Ruling:

 

 

 

 

The jurors who favored
the plaintiff said they should
increase the amount of damages
that they had been discussing
because Ms. Echeverria was
going to have to pay taxes on
the money, pay her lawyers,
and pay foran appeal. After the

jurors raised those possible

costs, other jurors agreed to

of the

raise the amount

damages. .

 

plaintiff-favoring jurors a; eed

larger

Juror No. 2 Decl., at 11 6 (italics
added).

 

Inadmissible pursuant to Evid. Code 1150.
The statements in paragraph 6 of Juror No. 2?s
declaration concern the mental processes,
deliberative thinking, and subjective reasoning of
the jury regarding how the verdict was reached.
Such statements are inadmissible pursuant to
Evid. Code 1150 and cannot be used to try to
impeach the verdict. See Evid. Code 1150(a);
see also I.A. supra; Cal. Judges Benchbook Civ.
Proc. After Trial, Chp. 2, at 2.27. ?Juror
declarations that purport to show 'a deliberative
error by one or more jurors are inadmissible to
impeach the verdict, as are juror declarations that
purport to show . . . [h]ow the jurors arrived at the
award of damages.? Id. at 2.29.

Hearsay. Juror No. 2?s statements about what
other (unidenti?ed) jurors ?said,? were
?discussing,? or verbally ?raised? or ?agreed?
regarding their decision-making process in
awarding damages is inadmissible hearsay.
Speculation, lacks foundation, lacks personal
knowledge, conclusory. In paragraph 5, Juror
No. 2 said that she and the other ?defense jurors?
did not participate in the damages discussion. If
that was true, it would mean that she has no basis

to say why or how other jurors ?decided? or

?agreed? to assess damages.

 

Sustained

E/Overruled
?int
60?

Sustained
IE/Overmled

Sustained

E/Oven'uled



 

 

was?

 

EVIDENTIARY OBJECTIONS BY PLAINTIFF EVA ECI-IEVERRIA TO DECLARATIONS OF

JUROR NO. 1 AND JUROR NO. 2

 

 

\omqmmemmr?i




 

 

 

Grounds for Objection:

Ruling:

 

punitive damages, the jurors
who voted in favor of liability

Edid what Allen Smith asked

 

i them to do in his closing
argument they set the number
based on a percentage of the

Defendants? net worth.?

 

 

Material Ob jected to:
When the jury 
discussed the amount of 

 

 

Not relevant.

misconduct to consider the defendant?s net worth

i also Cal. Judges Benehbook Civ. Proc. After

 

Inadmissible pursuant to Evid. Code 1150.
The statements in paragraph 7 concern the mental
processes, deliberative thinking, and subjective
reasoning of the jury regarding how the verdict
was reached. Such statements are inadmissible.

See Evid. Code 1150(a); see also I.A. supra;

 

Statements in ?juror declarations that purport to .
show . . . [h]ow the jurors arrived at the award of 
damages? inadmissible. Cal. Judges .
Benehbook Civ. Proc. After Trial, Chp. 2, 2.29. I

are

Hearsay. Juror No. 2?s statements about what
other (unidenti?ed) jurors said or their decision-
rnaking process in calculating damages based on
what Juror No. 2 heard them say is hearsay.

Speculation, lacks foundation, lacks personal

knowledge. Juror No. 2 lacks personal

 

knowledge and her statements lack foundation as
to what other jurors discussed or how or why they
decided or ?set? to award damages.

Evid. Code 350. It is not

in awarding punitive damages. CACI 3945. See

Trial, Chp. 2, 2.53 damages must
be supported by . . . evidence of the defendant?s

?nancial condition? and ?the defendant?s net

worth is the critical determinant?).

 

I maimed

El Overruled

Sustained
U/Oven'uled

wistained

Overruled

El Sustained

Wet-ruled

 

 



aeh'vt? .14? (c 

 

EVIDENTIARY OBJECTIONS BY PLAINTIFF EVA ECHEVERRIA TO DECLARATIONS OF

(612.01,;

JUROR NO. 1 AND JUROR NO. 2



 

 

 








p?i


27
28

 

 

I. EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JUROR NO. 8 (P.C.)

 

 

Material Objected to: Grounds for Objection: Ruling:
11 4, lines 10-11: ?[E]veryone Vague and ambiguous. The phrase IE/Sustained
in the jury room was free to ?everyone in the jury room was free to El Overruled

participate in the damages
deliberations . . .

participate in the damages deliberations?
appears intended to address the contention
in defense jurors? declarations that they
were directed not to deliberate on damages,
without actually refuting it. Two sentences
later in the juror?s declaration, she professes
being unable to remember ?whether or not?
defense jurors were requested not to
participate in damages deliberations. The
two contentions?that defense jurors were
requested not to deliberate on damages and
that they were nonetheless ?free to
participate in the damages deliberations??
are not necessarily mutually exclusive,
where being ?free to participate? means
something short of having a vote on the
?nal awarded amount. See Evid. Code
352, 765.

Evidence Code
Statement of Jurors? Subjective
Reasoning/Mental Process). While
testimony that speci?c jurors were told not
to participate in damages deliberationsfact participate in them,
could be admissible as observable conduct,
this juror?s subjective Opinion about
whether defense-leaning jurors were ??ee to
participate in the damages deliberations? is
an improper statement of mental processes
to the extent it is based on the juror?s vague
feeling or sense of the room, rather than on
actual statements made.

1150 (Improper

II/Sustained

El Overruled

 

 

1  4, lines 12-13: ?Everyone
was given a chance to say
what they thought about the
amount to award Ms.
Echeverria, including the
jurors who voted for the
defendants.?

 

Vague and ambiguous as to the phrase
?[e]veryone was given a chance to say What
they thought.? That language appears to be
a lawerly non~re?1tation of the contention in
defense jurors? declarations that they were
directed not to deliberate on damages.
Indeed, the very next sentence of the juror?s
declaration states that she cannot remember

 

Sustained
El Overruled

 

2/61-

OBJECTIONS TO PLAINTIFF JUROR AFFIDAVITS

 

 

wax-IQUI-Bhw

?whether or not? defense jurors were asked
not to participate in damages deliberations.
The two contentions?that defense jurors
were requested not to deliberate on damages
and that, notwithstanding, they could have
interposed ?what they thought about the
amount??are not necessarily mutually
exclusive, where having ?a chance to say
what they thOught? means something short
of being permitted to vote. See Evid. Code
352, 765.

Evidence Code 1150 (Improper
Statement of Jurors? Subjective
Reasoning/Mental Process). While

testimony that speci?c jurors were told not
to participate in damages deliberationsfact participate in them,
could be admissible as observable conduct,
this juror?s subjective opinion about
whether ?[e]veryone was given a chance to
say what they thought? is an improper
statement of mental processes to the extent
it is based on a vague feeling rather than on
actual statements made in the jury room.

 

 

4, lines 13-15: do not
remember a request to
exclude jurors from these
deliberations, but whether or
not that happened, everyone
on the jury participated in
reaching the verdict, and no
one was excluded.?

Vague and ambiguous as to the phrase
?everyone on the jury participated in
reaching the verdict, and no one was
excluded.? That artfully worded phrase
appears calculated to distinguish between
the ?nding of liability and the damages the
jury ultimately awarded. It cannot be true
both that there was a ?request to exclude
jurors from these deliberations? (about
which, the juror avers, she cannot remember
?whether or not that happened?) an_d that
?everyone on the jury participated in
reaching the verdict, and no one was
excluded? if ?verdict? includes deliberations
respecting damages. See Bvid. Code

Iii/Sustained

Overruled

?nned

El Overruled

 

 

 

 

352, 765.
1"
5, lines 16-17: ?Along with Evidence Code 1150 (Improper [B/Sustained
the other jurors, I voted based Statement of Jurors? Subjective El Overruled

on the evidence that was
presented against each of the
defendants and the law that

we were instructed to follow.?

 

Reasoning/Mental Process). The statement
as to what this juror purports to have
subjectively considered in voting is
inadmissible both as it concerns her own

 

 

3'93

 

OBJECTIONS T0 PLAINTIFF UROR 

 

 

 

 






vote and particularly as it concerns the votes
of other jurors. The statement goes to the
subjective reasoning of the jury in reaching
its verdict and is not veri?able and/or based
on observable facts/expressions.

Conclusory, and lacks foundation and
personal knowledge as to the basis for
other jurors? votes. See Evid. Code 702.

D/Sustained

El Overruled

 

1] 6, lines 22-23: ?The
evidence presented was
considered and was
interpreted by me based on
my thinking about the
evidence.?

Evidence Code 1150 (Improper
Statement of Jurors? Subjective
Reasoning/Mental Process). The statement

as to how this juror purports to have
interpreted the evidence and her subjective
?thinking? is an example of her subjective
reasoning, not veri?able and/or based on
observable facts/expressions.

[U/Sustained

El Overruled

 

 

1i 6, lines 23-24: ?We all
worked together and we used
our own reasoning skills in a
demonstrative manner based
on the evidence that was
presented in the trial.?

 

Evidence Code 1150 (Improper
Statement of Jurors? Subjective
Reasoning/Mental Process). The statement
as to how this juror perceives the collective
reasoning skills of the jury (and each juror

individually, including herselt) is not
veri?able and/or based on observable
facts/expressions.

Conclusory, and lacks foundation and.

personal knowledge as to the basis for the
other jurors? deliberations and the manner in
which they reached a verdict. See Evid.
Code 702.

Vague and ambiguous as to the phrase
?demonstrative manner,? which appears to
have been inserted merely in order to avoid
the prohibition of Evidence Code 1150 on
juror declarations concerning ?mental
processes.? See Evid. Code 352, 765.

 

lit/sustained

CI Overruled

ID/Sustained

El Overruled

U/Sustained

El Overruled

 

 

{Gal

OBJECT IONS TO JUROR AFFIDAVITS

 

 



Mace-4mm

II. EVIDENTIARY OBJECTIONS TO THE DECLARATION OF JUROR NO. 10 (NE)

 

 

Material Objected to: Grounds for Objection: Ruling:

1] 3, line 10: ?The Evidence Code 1150 (Improper IB/Sustained
compensatory damages Statement of Jurors? Subjective El Overruled
verdict was a reasonable Reasoning/Mental Process). Whether the

compromise.?

juror believes the damages verdict was a
?reasonable compromise? is not veri?able
and/or based on observable
facts/expressions.

Conclusory and lacks foundation as to
whether the verdict was ?a reasonable
compromise.? See Evid. Code 702.

Mustained

El Overruled

 

1i 3, line 11: ?Even though I
wanted to award her more, I
agreed to the lower amount.?

Evidence Code 1.150 (Improper
Statement of Jurors? Subjective
Reasoning/Mental Process). Whether the

juror wanted to award any more or less is
not veri?able and/or based on observable
facts/expressions.?

Iii/Sustained

El Overruled

 

11 3, lines 20-21: ?From my
standpoint, I am proud of the
fact that all of? us were very
conscientious in a way that
we considered all of the
evidence that was presented.?

Evidence Code 1150 (Improper
Statement of Jurors? Subjective
Reasoning/Mental Process). The juror?s

statement about what ?all of us [the jury]?
?considered? goes to her subjective
reasoning and is not veri?able and/or based
on observable facts/expressions.

Conclusory, and lacks foundation and

personal knowledge as to whether the other
jurors were conscientious or considered all
of the evidence. See Evid. Code 702.

Lil/Sustained

El Overruled

E?smined

Overruled

 

 

11 3, lines 22-23: believe
that the process was fair to
both the plaintiff and the
defendants.?

 

Evidence Code 1150 (Improper
Statement of Jurors? Subjective
Reasoning/Mental Process). The juror?s

statement of belief as to the fairness of ?the
process? goes to her subjective
beliefs/reasoning and is not veri?able and/or
based on observable facts/expressions.

 

Mustained

El Overruled

 

l0
?/3001?



OBJECTIONS TO PLAINTIFF JUROR AFFIDAVITS