"Evil Motive": What Judges Write About Johnson & Johnson

Juries have issued multi-billion dollar punitive damage awards
Scathing rebukes from judges reinforce the need for substantial punitive deterrents
Series of judicial rulings illustrate a broken corporate culture that elevates profits above people

After a Missouri jury in 2018 slammed Johnson & Johnson with a $4.7 billion verdict in a case over tainted baby powder, the company appealed. It would be hard to imagine a worse outcome for the company’s reputation than the appellate court decision.

“Viewing the evidence in the light most favorable to the verdict, we find Plaintiffs proved with convincing clarity that Defendants engaged in outrageous conduct because of an evil motive or reckless indifference,” Judge Philip Hess wrote in an opinion dated June 23, 2020.

In an 83-page decision filed in the Missouri Court of Appeals, Hess found that Johnson & Johnson, which built a reputation as a trusted friend of mothers and babies, had instead an “evil motive” or “reckless indifference” to its loyal customers.

At least as far back as 1969, Johnson & Johnson knew that its iconic Johnson’s Baby Powder contained cancer-causing asbestos, according to the opinion.

The 22 women who won the verdict claimed their ovarian cancer was caused by regular use of the baby powder or another J&J talcum powder.

To the company, baby powder was its “company trust mark,” “golden egg” and “sacred cow,” according to the opinion.

The opinion cites multiple internal company letters, reports, test results and warnings over five decades about the presence of asbestos in the powder. Yet, J&J fought to hide evidence of asbestos contamination. Among the “outrageous conduct” cited by the judge was the company secretly paying for publication of articles downplaying the risk, pressuring independent agencies to withdraw findings of asbestos in Johnson’s Baby Powder and attempting to discredit scientists who discovered the truth.

“Defendants worked tirelessly to ensure the industry adopted testing protocols not sensitive enough to detect asbestos in every talc sample,” Hess wrote. “…A reasonable inference from all this evidence is that, motivated by profits, Defendants disregarded the safety of consumers despite their knowledge the talc in their Products caused ovarian cancer.”

Wile the appellate court reduced the jury verdict by half, the order justified the final multi-billion dollar judgement by quoting case law that reads: "High-ratio punitive damage awards are sometimes necessary in order to have a sufficient deterrent effect."

The appellate decision followed equally scathing findings by the trial judge Rex Burlison in St. Louis, Missouri, in upholding the jury’s verdict.

Burlison wrote that “substantial evidence was adduced at trial of particularly reprehensible conduct” by Johnson & Johnson, including that the company “knew of the presence of asbestos in products that they knowingly targeted for sale to mothers and babies, knew of the damage their products caused, and misrepresented the safety of these products for decades,” according to the New York Times.

Johnson & Johnson's Declining Reputation

The judicial opinions in the talc case are the latest of several court findings that have blistered Johnson & Johnson’s reputation in recent years for a range of litigation involving other products including opioids, Risperdal, and vaginal mesh. Taken all together, these massive verdicts and scathing judgments allude to a systematic problem within Johnson & Johnson -- a culture that prioritizes making money, even when it means hurting people.

In a global reputational survey of pharmaceutical companies, Johnson & Johnson dropped from 9th place out of 58 companies in 2014 to 57th out of 58 in 2019, according to PR Week.

"So far, we have seen clear evidence that J&J’s reputation has been negatively affected by the issues it is facing. The key risk beyond the lawsuits and settlement costs is clearly the erosion of the company's brand promise," Alastair Pickering, chief strategy officer at alva, told PR Week.

Johnson & Johnson's Role in the Opioid Crisis

The alva Reputation Case Study followed Johnson & Johnson’s losses in litigation related to company’s role in the the deadly national opioid epidemic.

In a 2019 trial in Norman, Oklahoma, District Judge Thad Balkman found J&J guilty as charged of creating a public nuisance. The trial exposed the company’s role as the No. 1 provider in the U.S. of the active narcotic ingredient used to make opioid pills, according to Balkman’s report.

Balkman found that Johnson & Johnson and other drug companies encouraged doctors to prescribe excessive quantities of opioid drugs.

“Defendants’ opioid marketing, in its multitude of forms, was false, deceptive and misleading,” the judge found, leading to “exponentially increased rates of addiction, overdose deaths” and babies exposed to opiates in the womb.

Risperdal Rulings

In January 2020, Philadelphia Court of Common Pleas Judge Kenneth Powell Jr. defended his rulings following a jury’s decision to award $8 billion to a young Maryland man. Nicholas Murray grew large female breasts as a result of taking Risperdal as a boy. It was a side effect that Johnson & Johnson knew was a problem but went to great lengths to hide.

“The record clearly indicates that Defendants had actual knowledge of Risperdal’s defect,” Powell wrote. “…This evidence is clear and convincing that Defendants acted with conscious or deliberate disregard for the known defects with Risperdal.”

In an earlier Risperdal case, trial judge Paula Patrick wrote that the verdict and a $70 million monetary award against Johnson & Johnson were not excessive based on the evidence and the young man’s injuries.

Vaginal Mesh

In Australia, a judge overseeing a class action lawsuit over injuries caused to women by Johnson & Johson’s vaginal mesh found that the company and its subsidiary Ethicon failed to warn women about the “gravity of the risks” and rushed the mesh to market without adequate testing, according to Reuters.

“The risks were known, not insignificant and on Ethicon’s own admission, serious harm could ensue if they eventuated,” the judge said in her ruling, according to Reuters.

According to alva’s work on reputational surveys, terms such as ‘danger’, ‘harm’, ‘unsafe’, ‘unethical’, and ‘mislead’ have more than doubled in news stories and social media posts regarding Johnson & Johnson since 2016.