An appeals court has confirmed that Johnson & Johnson will be allowed to dodge a $417 million jury award and retry a baby powder cancer lawsuit.

The case involves plaintiff Eva E., who died of ovarian cancer shortly after she won an August 2017 trial. The jury found that talcum powder contributed to Eva’s ovarian cancer and awarded her $70 million in compensatory damages and added $347 million in punitive damages, ordered to be paid by Johnson & Johnson subsidiary Johnson & Johnson Consumer Inc.

In October 2017, Los Angeles Superior Court Judge Maren E. Nelson ruled that Eva was unsuccessful in linking the pharmaceutical giant to its Consumer Inc. subsidiary. Johnson & Johnson Consumer Inc. allegedly took over the manufacturing and marketing of the talc powder in 1967.

Judge Nelson granted Johnson & Johnson a new trial because she said the awards were “plainly excessive,” and that malice was not proven in awarding the punitive damages.

On July 9, 2019, a panel of the Second District Court of Appeal upheld Judge Nelson’s decision to grant a new trial to Johnson & Johnson. The panel said the evidence didn’t establish a strong enough link that talc had a large role in causing her deadly ovarian cancer. At the same time, the panel said evidence suggested Johnson & Johnson Consumer Inc. failed to warn of the risks of using talc in the perineal area.

Criminal Investigation into Baby Powder Cancer

Eva filed her lawsuit in July 2016 with six other women. She alleged that for many years, she used talcum powder products that included talc mined by Imerys Talc America Inc., which was marketed and sold by Johnson & Johnson. Eva was initially diagnosed with ovarian cancer in 2007.

The 2017 four-week trial was held in Los Angeles County Superior Court and included two days of deliberations. The jury ultimately decided Johnson & Johnson failed to warn consumers that using Johnson’s Baby Powder and Shower to Shower powder in the genital area could result in an increased risk of ovarian cancer.

According to a Bloomberg news report published Friday, July 12, the U.S. Justice Department has begun a criminal investigation to determine if Johnson & Johnson knowingly concealed from the public an increased risk of cancer from using its talcum powders.

The criminal investigation is purportedly separate from a regulatory investigation that is also pending. A grand jury in Washington is convening to determine what Johnson & Johnson knew, and when they knew, whether their talcum powders were tainted with asbestos or other known carcinogenic materials.

Johnson & Johnson is the defendant in more than 14,000 lawsuits that allege the use of Johnson’s Baby Powder and/or Shower to Shower powder caused ovarian cancer or mesothelioma cancer, which is a rare type of cancer most always linked to exposure to asbestos fibers. More than $5 billion has been awarded to plaintiffs by jurors over the past three years.

During some of the trials, internal memos surfaced that show Johnson & Johnson’s own researchers warned that asbestos was found in the company’s talc supply, and was a “severe health hazard” that could potentially place the company in legal peril, according to the Los Angeles Times.

The Baby Powder Cancer Lawsuit is Elisha E. v. Johnson & Johnson et al., Case No. B286283, in the Court of Appeals of the State of California, Second Appellate District.