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Supreme Court won't hear Johnson & Johnson's appeal of $2 billion talcum powder verdict

The company argued that it didn't get a fair trial when a jury awarded nearly $5 billion to 22 women, damages that were later reduced by more than half.

WASHINGTON — The Supreme Court declined Tuesday to take up Johnson & Johnson's appeal of a multibillion-dollar verdict in favor of women who said they developed ovarian cancer from using the company's talcum powder products.

The company argued that it didn't get a fair trial when a jury in Missouri state court awarded nearly $5 billion to 22 women who used Johnson's Baby Powder and Shower to Shower Shimmer Effects, both made with talcum powder that their lawsuit claimed was contaminated with asbestos, a known carcinogen.

A state appeals court reduced the award to more than $2.1 billion.

As is its usual practice, the Supreme Court gave no explanation for not taking the case. Two of the justices took no part in its consideration — Samuel Alito, who owns stock in the company, and Brett Kavanaugh, whose father worked for an industry lobbying group.

Talc, the mineral from which talcum powder is made, is chemically related to asbestos. Both are mined and may occur close together in the ground, so asbestos contamination is a known production problem. But Johnson & Johnson denied that its products were tainted or that they caused cancer.

The Supreme Court had not been asked to review whether the products did cause cancer. Instead, it had been asked to consider the company's argument that the Missouri courts unfairly combined the cases of nearly two dozen women from several states whose cancer severity varied widely.

Some of the women had genetic or family predispositions for cancer, while others did not. Putting all the cases together confused the jury and blurred the legal distinctions separate to each claim, the company said.

Because the laws of 12 states were involved, it took the judge more than five hours to give the jury instructions before deliberations began.

Johnson & Johnson said the Supreme Court should take the case "to curb due-process abuses in mass-tort suits" and to give corporate defendants the same rights to a fair trial as everyone else. The company also said the amount of punitive damages was too far out of line with the actual or monetary damages.

"The matters that were before the court are related to legal procedure, and not safety," the company said in response to the Supreme Court's order. "Decades of independent scientific evaluations confirm Johnson's Baby Powder is safe, does not contain asbestos, and does not cause cancer."

Attorneys for the women said consolidating several plaintiffs in product liability cases is a widely accepted way to preserve the resources of the courts, especially "when common issues — such as the product's safety and the defendants knowledge of its danger — predominate, as they did here."

And the women said the size of the damage award is within the range that courts have concluded does not amount to disproportionate punishment.

The case features an unusual lineup of lawyers. The women are represented by former Solicitor General Kenneth Starr, who was a member of President Donald Trump's legal team during his first Senate impeachment trial; former Attorney General John Ashcroft, who served in President George W. Bush's administration; and Tom Goldstein, the publisher of SCOTUSBlog, who has served as an NBC News legal analyst.

Johnson & Johnson is represented by Neal Katyal, who was acting solicitor general in the Obama administration. He was part of the team behind the Minnesota attorney general's prosecution in the George Floyd case, and he has also been an NBC News legal analyst.

As for the potential health hazards of talc products, the American Cancer Society has said "it is not clear if consumer products containing talcum powder increase cancer risk." A U.S. government study of thousands of women found no strong evidence linking baby powder to ovarian cancer, but the lead author said the results were "very ambiguous."

Concern over the possible connection has prompted thousands of lawsuits nationwide. Johnson & Johnson no longer sells talcum-based baby powder in the U.S. or Canada.