discussing this distinctionSummary of this case from Olson v. Brenntag N. Am., Inc.
Levy Konigsberg, LLP (Jerome H. Block of counsel), and Maune Raichle Hartley French & Mudd, LLC (Christian H. Hartley, Suzanne Ratcliffe, and Margaret Samadi of counsel), for plaintiffs. Kirkland & Ellis LLP (Robert "Mike" Brock, Barry E. Fields, and Stacey G. Pagonis of counsel) and Paterson Belknap Webb & Tyler LLP (John D. Winter, Thomas P. Kurland, and Louis M. Russo of counsel) for defendants Johnson & Johnson and Johnson & Johnson Consumer Inc.
Levy Konigsberg, LLP (Jerome H. Block of counsel), and Maune Raichle Hartley French & Mudd, LLC (Christian H. Hartley, Suzanne Ratcliffe, and Margaret Samadi of counsel), for plaintiffs.
Kirkland & Ellis LLP (Robert "Mike" Brock, Barry E. Fields, and Stacey G. Pagonis of counsel) and Paterson Belknap Webb & Tyler LLP (John D. Winter, Thomas P. Kurland, and Louis M. Russo of counsel) for defendants Johnson & Johnson and Johnson & Johnson Consumer Inc.
Gerald Lebovits, J.
On May 21, 2019, in Phase I of the trial in this asbestos-related action, a jury found defendants Johnson & Johnson and Johnson & Johnson Consumer Inc. (collectively, J & J) liable for plaintiffs' injuries and awarded compensatory damages. The jury also found that J & J should be assessed punitive damages. The same jury in Phase II of this trial will shortly determine the size of the punitive-damages award. Phase 2 will be conducted under Section XXIV of the New York City Asbestos Litigation (NYCAL) Case Management Order (CMO).
Now before the court is the question of what evidence the jury may consider in Phase II. Beyond the evidence admitted at Phase I, plaintiffs have proposed a list of exhibits they wish to introduce. J & J categorically objects to the introduction of any new evidence at Phase II. In the alternative, J & J has raised evidentiary objections to plaintiffs' proposed exhibits.
Whether new evidence may be introduced at the punitive-damages phase of a NYCAL action—and if so, the scope of the evidence the parties may introduce—is of first impression. The current action is the first case since 1994, and probably earlier, in which a NYCAL jury will be asked to determine a punitive-damages award at all.
This court has considered the parties' helpful arguments and submissions and announced its rulings on the record. The basis for some of those rulings is set forth in more detail below. I. Admissibility of New Evidence at Phase II
In addition to other evidentiary matters dealt with solely on the record, J & J contended that the parties should not deliver opening statements, because the CMO does not address openings and that J & J should be permitted to deliver its closing statement following plaintiffs' to permit J & J to respond to what J & J anticipates will be plaintiffs' suggestion in closing of an appropriate punitive-damages award. Although the CMO does not discuss the issue of opening statements or the order of closing statements, this court concluded that J & J did not offer a sufficient basis to deviate from the customary structure of trial presentation in New York. Each party will deliver brief opening statements, and J & J will deliver its closing statement before plaintiffs' closing.
The parties also duel over the court's forthcoming jury instructions. One issue is J & J's contention that due process requires this court expressly to tell the jury that it should award no punitive damages if it concludes that its Phase 1 compensatory-damages award (here, $ 25 Million) is sufficient. This court agrees that a jury may, in appropriate circumstances, award $ 0 in punitive damages. But the jury need not be expressly instructed in this case to that effect as a matter of due process. The existing PJI punitive-damages instruction—which takes into account the U.S. Supreme Court decisions on which J & J relies—does not create a sufficient risk of misinforming the jury regarding the minimum size of a punitive-damages award that due process requires J & J's desired modification to the language of PJI 2:278. In any event, it is law of the case from Phase I that at least some punitive damages must be awarded. Plaintiffs persuaded the Phase I jury to award punitive damages. Both sides may address in Phase II only those arguments relating to the size of the award.
J & J contends as a threshold matter that the only new evidence that may be introduced at Phase II is evidence of J & J's financial condition in the form of the documents described in CMO § XXIV.B. (See J & J's Phase II Mem. of Law at 3-4, NYSCEF No. 765.) This court disagrees.
Section XXIV of the CMO does not limit the scope of Phase II to evidence already introduced at Phase I. Rather, CMO § XXIV.C provides only that if the jury finds in Phase I "that the plaintiff is entitled to punitive damages, then the jury shall determine the quantification of damages in Phase II," based on the "presentation of evidence, closing statements by counsel, and appropriate instructions by the Court."
Defendants rely on the fact that Subdivision XXIV.B permits limited discovery into a defendant's financial condition. But that subdivision permits that discovery because a "defendant's ability to pay punitive damages is a factor to be considered by a jury" in Phase II. Neither Subdivision XXIV.B nor Subdivision XXIV.C purports to limit the scope of Phase II to the financial-condition evidence described in CMO § XXIV.B.
Additionally, New York law has historically permitted the parties to introduce "additional evidence as they see fit" at the punitive-damages phase of trial, so long as the evidence is relevant "on the question of the amount of damages to which plaintiffs are entitled." ( James D. Vollertsen Assoc. v. John T. Nothnagle, Inc. , 48 A.D.2d 1007, 1007, 369 N.Y.S.2d 267 [4th Dept. 1975].)
To be sure, the parties should avoid lengthy and potentially duplicative presentations of evidence on punitive damages at Phase II here, particularly in view of the long duration of Phase I. But the need judiciously to streamline the parties' Phase II presentations does not require wholesale preclusion of new evidence beyond financial condition.
II. Admissibility of Post-2015 Evidence
Plaintiffs seek to present evidence of recent conduct and statements by J & J—that is, evidence dating from after Ms. Olson stopped using Johnson's Baby Powder in 2015—that assertedly shows J & J has continued to misrepresent and conceal the dangers presented by asbestos contamination of J & J's talc.
This evidence comprises Proposed Exhibits 925, 925A, 929A, 929B, 929C, 930, 930A, 931, 931C, 934, 935, 938B, 950A, and 951A.
Defendants argue that the jury is categorically barred as a due-process matter from taking post-2015 evidence into account. Defendants also raise First Amendment and hearsay challenges to its admission. (See J & J Mem. of Law at 5-7, 9-11.)
This court concludes that plaintiffs may not present evidence of post-2015 conduct or statements by J & J in Phase II of this trial. The jury may not award punitive damages to punish J & J for any harm that J & J inflicted on nonparties. And because J & J's post-2015 conduct could not and did not harm plaintiffs here, it is not probative regarding the reprehensibility of J & J's wrongful conduct that did harm plaintiffs.
In light of its ruling on this issue, the court does not reach J & J's First Amendment and hearsay arguments.
A. The Purpose of Punitive Damages is to Punish the Wrongdoer for the Harm Inflicted on a Plaintiff.
Punitive damages are intended to "punish the tortfeasor and to deter this wrongdoer and others similarly situated from indulging in the same conduct in the future." ( Ross v. Louise Wise Servs. , 8 N.Y.3d 478, 489, 836 N.Y.S.2d 509, 868 N.E.2d 189 .) They are permitted when the wrongdoing at issue "evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations." ( Id. )
Thus, the question is whether "the wrong is aggravated by evil motives," so that punitives should be allowed to "punish the wrongdoer for his misconduct and furnish a wholesome example." ( Merrick v. Four Star Stage Lighting , 60 A.D.2d 806, 807, 400 N.Y.S.2d 543 [1st Dept. 1978] [emphasis added].)
Punitive damages are therefore tied closely to a particular wrong for which a plaintiff seeks compensatory damages. A plaintiff may not plead punitive damages as a freestanding cause of action (see Jean v. Chinitz , 163 A.D.3d 497, 498, 83 N.Y.S.3d 55 [1st Dept. 2018] ); and a plaintiff may not obtain punitive damages if the compensatory claim to which those damages would relate has been dismissed (see Prote Contracting Co. v. Bd. of Educ. of the City of New York , 276 A.D.2d 309, 310, 714 N.Y.S.2d 36 [1st Dept. 2000] ).
Indeed, some New York decisions have gone so far as to call punitive damages "parasitic" on an underlying substantive cause of action. (See e.g. Rocanova v. Equitable Life Assurance Soc'y of the United States , 83 N.Y.2d 603, 616, 612 N.Y.S.2d 339, 634 N.E.2d 940 .)
Applying these principles, the Court of Appeals and the Appellate Division, First Department, have held that a plaintiff may not obtain punitive damages for distinct wrongful conduct that post-dates the period covered by a plaintiff's causes of action. (See Ross , 8 N.Y.3d at 491, 836 N.Y.S.2d 509, 868 N.E.2d 189 ; Juman v. Louise Wise Servs. , 3 A.D.3d 309, 310, 770 N.Y.S.2d 305 [1st Dept. 2004] [affirming dismissal of plaintiff's request for punitive damages based on defendant's post-1983 conduct, where plaintiff's claim of liability was based on defendant's conduct in 1966].)
Other federal and state courts have long adhered to a similar rule. (See e.g. Marshall v. El Paso Natural Gas Co. , 874 F.2d 1373, 1381 [10th Cir. 1989] ; R.E. Linder Steel Erection Co. v. Wedemeyer, Cernik, Corrubia, Inc. , 585 F.Supp. 1530, 1532 [D. Md. 1984] ; Thomas v. American Cystoscope Makers, Inc. , 414 F.Supp. 255, 264-265 [E.D. Pa. 1976] ; Bennett v. Greeley Gas Co. , 969 P.2d 754, 761 [Colo. Ct. App. 1998] ; Byers v. Santiam Ford, Inc. , 281 Or. 411, 416, 574 P.2d 1122  ; Forquer v. Pinal County , 22 Ariz. App. 266, 269, 526 P.2d 1064 [Ariz. Ct. App. 1974] ]; but see Johns-Manville Sales Corp. v. Janssens , 463 So.2d 242 [Fla. Ct. App. 1984].)
B. Punitive Damages May Not be Assessed for Wrongdoing Unrelated to the Harm Inflicted on a Plaintiff.
By the same token, where, as here, the factfinder has determined that punitive damages should be assessed, the amount of punitive damages must be tied as well to the particular wrong the defendant committed.
This limitation is reflected in the language of New York's Pattern Jury Instructions (PJI), which suggest that trial judges should instruct the jury to "consider the nature and reprehensibility of what [defendant] did," including the character, motivation, and duration of defendant's wrongful conduct, the defendant's awareness of potential harm to others from its conduct, the scope of the actual harm resulting from that conduct, and "any concealment or covering up of the wrongdoing." ( PJI 2:278.) Each of these factors—which the PJI phrases in the past tense—is tied to the particular wrongs a defendant committed against a plaintiff. The U.S. Supreme Court has made clear that this requirement is one of constitutional dimension. In State Farm Mut. Automotive Ins. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003), the Court reversed a punitive-damages award rendered by the courts of Utah, holding that the award violated the Due Process Clause of the U.S. Constitution.
The Court held that the Utah courts erred by awarding "punitive damages to punish and deter conduct that bore no relation to the [plaintiffs'] harm." ( 538 U.S. at 422, 123 S.Ct. 1513.) Due process requires instead that a defendant be punished only "for the conduct that harmed the plaintiff"—and that the need to determine the reprehensibility of a defendant's conduct for punitive damages purposes does not license courts "to adjudicate the merits of other parties' hypothetical claims against a defendant." ( Id. at 423, 123 S.Ct. 1513.)
The Supreme Court extended this ruling in Philip Morris USA v. Williams, 549 U.S. 346, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007). There, the Court reversed a punitive-damages award rendered by the courts of Oregon. The Court held that the award violated the Due Process Clause, because the award punished "a defendant for injury that it inflicts upon nonparties," individuals "who are, essentially, strangers to the litigation."
The Court explained that defendants lack the necessary information to defend themselves properly against a punitive-damages claim based on harm to nonparties and that a jury and trial court lack the necessary standards to impose punishment for harm done to nonparties—thereby magnifying the due-process "risks of arbitrariness, uncertainty, and lack of notice" posed by punitive-damages awards. ( 549 U.S. at 353-354, 127 S.Ct. 1057.)
The Court did acknowledge in Philip Morris that a plaintiff could introduce evidence of actual or potential harm to nonparties for limited purposes. In particular, a defendant's conduct that "risks harm to many is likely more reprehensible than conduct that risks harm to only a few." ( Id. at 357, 127 S.Ct. 1057.) Thus, evidence that a defendant's conduct injured "nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible." ( Id. at 355, 127 S.Ct. 1057.)
The Court distinguished, though, between putting evidence before a jury that a defendant's wrongful conduct was especially reprehensible because it was broad in scope and risked harming many people, and permitting a jury to "use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties." ( Id. )
After Philip Morris , the Appellate Division, Second Department, vacated a punitive-damages award in a tobacco-related case, concluding that the plaintiffs' emphasis on the deaths allegedly had been caused by defendant of thousands of other smokers besides the plaintiff could have led the jury improperly to "punish the defendants for harm caused to other smokers in New York." ( Frankson v. Brown & Williamson Tobacco Corp. , 67 A.D.3d 213, 221-222, 886 N.Y.S.2d 714 [2d Dept. 2009].)
Similarly, state and federal courts around the country have emphasized after the Supreme Court's decisions in State Farm and Philip Morris that evidence regarding harm inflicted by a defendant's wrongdoing on nonparties should be admitted or given weight in the reprehensibility analysis only when that wrongdoing is part of the same course of conduct that injured the plaintiff, such that the evidence is being admitted to show the scope—and thus the degree of reprehensibility—of defendant's wrongs against the plaintiff.
See Guyoungtech USA, Inc. v. Dees, 156 So.3d 374, 385-386 (Ala. 2014) (holding that trial court erred by admitting punitive-damages evidence about alleged wrongful conduct toward nonparties that had not harmed plaintiff); Gober v. Ralphs Grocery Co., 137 Cal. App. 4th 204, 211, 40 Cal.Rptr.3d 92 (Cal. Ct. App. 2006) (declining to consider post-injury conduct as part of reprehensibility analysis in reviewing jury's punitive-damages award); Wohlwend v. Edwards, 796 N.E.2d 781, 785-787 (Ind. Ct. App. 2003) (reversing jury's punitive-damages award for taking post-injury conduct into account); accord Jacobson v. R.J. Reynolds Tobacco Co., 2013 WL 12094893, at *6 (S.D. Fla. Sept. 12, 2013) (noting that evidence of defendants' wrongful conduct post-dating the death of plaintiff's decedent would have "minimal relevance" and risked causing "undue prejudice to Defendants" and "confus[ing] the jury"); Klawer v. SDI Residual Assets LLC , 2012 WL 13001298, at *4-*5 (C.D. Cal. Mar. 26, 2012) (granting defendant's motion for summary judgment dismissing request for punitive damages where only conduct that could support punitive damages occurred after plaintiff's injury); Perrine v. E.I. du Pont de Nemours and Co., 225 W. Va. 482, 544, 694 S.E.2d 815 (W. Va. 2010) (approving jury instruction that the jury could consider harm to nonparties in determining defendant's degree of reprehensibility only if that harm "was caused by the same conduct that allegedly harmed the plaintiffs"); Poage v. Crane Co., 523 S.W.3d 496, 521 (Mo. Ct. App. 2017) (rejecting defendant's challenge to punitive-damages award in asbestos case where plaintiff's counsel referred to harm to nonparties to show that the conduct that harmed plaintiff's decedent was part of a large-scale repeated action rather than an isolated incident); accord Brand Marketing Grp. v. Intertek Testing Servs. N.A., 801 F.3d 347, 364-365 (3d Cir. 2015) (rejecting defendant's challenge to punitive damages award based upon evidence of potential harm to nonparties where the same conduct that risked harm to nonparties also caused closely related harm to plaintiff.)
C. J & J May Not be Assessed Punitive Damages for Wrongdoing That Could Not Have Harmed the Olsons.
In this case, a number of exhibits plaintiffs seek to submit at Phase II (listed at note 2, supra ) are inadmissible because they lack the necessary connection to the J & J wrongdoing that harmed Ms. Olson (and, as a result, her husband's loss of consortium).
This evidence consists chiefly of statements over the past year by J & J and its CEO that J & J's talcum-powder products are safe and asbestos-free. Plaintiffs contend this evidence shows that J & J is continuing to conceal and misrepresent the asbestos-related risks of using J & J's products and thus is relevant to J & J's culpability and the need for deterrence.
But introducing these 2018- and 2019-vintage statements does not—cannot—serve the purpose of establishing the scope and reprehensibility of the tortious J & J conduct that harmed the Olsons, since Ms. Olson stopped using Johnson's Baby Powder in 2015.
Instead, the statements at issue are relevant only to show that J & J has also, separately, harmed or risked harming other consumers between 2015 and now and should be punished for those distinct wrongs. But the Supreme Court has made clear that due process forbids awarding damages to punish a defendant for having inflicted harm on nonparties distinct from the harm done to the plaintiff: "A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business." ( State Farm , 538 U.S. at 423, 123 S.Ct. 1513.)
And although plaintiffs are correct to say that a core purpose of punitive damages is to deter a defendant from continuing to engage in wrongful conduct, deterrence "in the air, so to speak, will not do." ( Pulka v. Edelman , 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019  [quotation marks omitted]. Rather, the wrongdoing for which the plaintiffs may seek punitive damages in deterrence is the course of conduct that harmed them—not acts that risked harming others only thereafter.
The court disagrees with plaintiffs' suggestion that this limitation will prevent plaintiffs from meaningfully asserting deterrence-related arguments to the Phase II jury. Plaintiffs may seek to persuade the jury that evidence of J & J's continuing wrongdoing between 1953 and 2015 shows that a large punitive-damages award is necessary to deter J & J from engaging in similar wrongful conduct going forward.
Permitting plaintiffs to introduce evidence of J & J's allegedly wrongful conduct between 2015 and now will also invite the jury to punish J & J for potential or actual harm inflicted solely on strangers to this litigation. The Supreme Court's decisions in State Farm and Philip Morris make clear that this is not a permissible basis to award punitive damages. Nor is the court is persuaded by the limited caselaw plaintiffs provided to support their position that the jury may hear evidence of post-2015 conduct.
Admitting J & J statements from 2018 and 2019 will, moreover, likely entail a burdensome mini-trial on whether those statements are accurate with respect to J & J's current source of talc, which is located in China rather than Vermont or Italy (as it was for much of the time Ms. Olson's used J & J products).
Plaintiffs rely principally on Gomez v. Cabatic, 159 A.D.3d 62, 70 N.Y.S.3d 19 (2d Dept. 2018). In Gomez , a jury found that a doctor's malpractice led to the death of plaintiff's decedent and awarded compensatory damages. The jury also awarded punitive damages for the doctor's post-mortem destruction of notes about her treatment of the patient that might have contained information supporting plaintiff's malpractice claims. ( Id. at 70-71, 70 N.Y.S.3d 19.)
The Second Department affirmed the imposition of punitive damages for destroying the treatment notes. In so doing, though, the Court carefully connected this wrongful conduct to the harm done to plaintiff. The Court noted the jury had been instructed that it could award punitive damages only if it found that the doctor acted "deliberately, with knowledge of the plaintiff's rights and with the intent to interfere with those rights." ( Id. at 73, 70 N.Y.S.3d 19.) The Court further emphasized that it was not permitting punitive damages to be "awarded for conduct unconnected to the malpractice," but rather to punish the defendant's improper "attempt to evade liability for that malpractice" by destroying evidence. ( Id. 76-77, 70 N.Y.S.3d 19.) The conduct for which punitive damages were awarded was an extension of the harm inflicted on the plaintiff, in particular.
Similarly, in Matbon, Inc. v. Gries, 288 S.W.3d 471, 488 (Tex. Ct. App. 2009), plaintiffs sued a truck driver and his employer for injuries sustained in a highway accident the driver caused. The post-accident evidence the jury in that case considered was limited to (i) the conduct of the truck driver immediately following the accident, and (ii) the employer's alleged failure to properly investigate the accident. (See Br. for Appellants, 1911 WL 50412, at *33-34.) This evidence related directly to the injuries that defendants' wrongdoing caused plaintiffs and the degree of defendants' culpability for those injuries—not defendants' culpability for harm or risk of harm only to individuals other than the plaintiffs. In any event, defendants in that case did not raise, and the court did not consider, the potential due-process concerns from admitting post-accident evidence.
Here, on the other hand, J & J's post-2015 statements necessarily could affect only individuals other than the Olsons. And the statements do not establish the degree of reprehensibility of the pre-2015 conduct that did harm the Olsons. This evidence thus lacks the connection to the defendant's tortious wrongdoing that existed in Gomez . Plaintiffs also cite the U.S. District Court for the Middle District of Georgia's decision in Matter of Mentor Corp. Obtape Transobturator Sling Products Liability Litigation, 2015 WL 7863032 (M.D. Ga. Dec. 3, 2015 ). To the extent that Matter of Mentor stands merely for the proposition that post-injury actions can shed light on a defendant's state of mind during an injury-causing course of conduct (see id. at *2, citing Janssens , 463 So.2d at 256 ), that holding does not bear on the issue to be decided here, because the jury in this action already decided in Phase I that J & J's state of mind was sufficiently culpable to warrant punitive damages.
Plaintiffs cite Guariglia v. Price Chopper Operating Co., 38 A.D.3d 1043, 830 N.Y.S.2d 871 (3d Dept. 2007). But in that case the parties did not brief the issue of the admissibility of post-injury conduct, the Third Department referenced post-injury conduct only in passing as additional evidence that punitive damages could be awarded, and the Court's separate evaluation of the size of the award focused on the injury-causing conduct itself. (See 38 A.D.3d at 1044, 830 N.Y.S.2d 871. The parties' opening, response, and reply briefs on appeal can be found on Westlaw at 2016 WL 4937338, 4937339, and 4937340, respectively.)
To the extent that Matter of Mentor also concluded that admitting post-injury conduct more broadly was consistent with due process, because the conduct was "not dissimilar to or independent from the acts on which [p]laintiff's claims are based" (see id. at *2 n. 2 ), this court simply disagrees. Even if J & J's pre- and post-injury acts were similar in kind, the fact that J & J's post-injury conduct could not have affected plaintiffs breaks the connection between the two categories of acts and renders, for due-process purposes, J & J's post-injury conduct independent of its pre-injury wrongdoing.
Plaintiffs also rely on Owens-Corning Fiberglas Corp. v. Ballard, 749 So.2d 483 (Fla. 1999), in which the Florida Supreme Court affirmed a punitive-damages award based in part on post-injury statements by Owens Corning and its key decisionmakers. But in addition to the fact that Ballard preceded State Farm and Philip Morris , the Ballard Court noted that Owens Corning did not object to the jury instruction that permitted the jury to consider recent corporate statements in determining the appropriate size of a punitive-damages award. (See id. at 484 [describing instruction], 487 [noting lack of objection].) That is not the case here.
In Jones v. Cruzan , referenced by plaintiffs, the Court held that evidence of defendant's conduct immediately after the injury-causing incident was admissible only to show defendant's culpable state of mind during the incident itself. (See 33 P.3d 1262, 1264 [Colo. Ct. App. 2001].) The Jones Court also observed that "ordinarily, the acts of a wrongdoer occurring after the event creating liability are not material to the jury's assessment of punitive damages." (Id. )
Since plaintiffs in this case may not present evidence to the jury at Phase II regarding J & J's actions after 2015, the court excludes Proposed Exhibits 925, 925A, 929A, 929B, 929C, 930, 930A, 931, 931C, 934, 935, 938B, 950A, and 951A.
III. Admissibility of Evidence of J & J Conduct Outside New York State
J & J contends that the Supreme Court's decision in State Farm forecloses plaintiffs from presenting "evidence of any conduct occurring outside of the geographic boundaries of New York," because State Farm putatively holds that "the Due Process clause limits a state court jury from considering conduct that occurs outside the geographic confines of the State's jurisdiction." (J & J Mem. of Law at 6-7 (quoting State Farm , 538 U.S. at 421, 123 S.Ct. 1513 ).) This decision does not sweep so broadly, however.
State Farm expressly states that when a defendant's out-of-state conduct has "a nexus to the specific harm suffered by the plaintiff," that conduct may be "probative when it demonstrates the deliberateness and culpability" of the defendant's in- state wrongdoing. (538 U.S. at 422, 123 S.Ct. 1513.)
In other words, evidence of out of state conduct—or conduct engaged in at a national level as part of nationwide company policy—may be introduced to show the degree of reprehensibility of the defendant's actions, if the acts that harmed the New York plaintiff were part of the defendant's broader course of wrongful conduct.
This distinction also tracks the basic teaching of Philip Morris that a plaintiff may not ask the jury to punish the defendant directly for harm inflicted on others but—to show the degree of reprehensibility of the conduct that harmed plaintiff—may submit evidence that the defendant risked harming others.. (See Philip Morris , 549 U.S. at 357, 127 S.Ct. 1057.)
IV. Admissibility of J & J Advertisements
Plaintiffs seek to admit some J & J print and television advertisements that ran between the 1960s and 1990s, while Ms. Olson was using Johnson's Baby Powder. This evidence comprises Proposed Exhibit 148 (print ads) and Proposed Exhibits 420, 421, 422, and 425 (television commercials).
Plaintiffs sought to admit many of these advertisements in Phase I; this court denied plaintiffs' request, in part because Ms. Olson had neither seen nor relied on advertisements in deciding to use (and continue using) Johnson's Baby Powder.
J & J now argues that absent Ms. Olson's reliance on J & J's advertisements, introducing those advertisements will improperly invite the jury to consider harm to other, dissimilar individuals and to "award damages for conduct that ... affirmatively did not harm plaintiffs." (J & J Mem. of Law at 9; see generally id. at 6-7, 8-9.)
But in Phase I, plaintiffs persuaded the jury that J & J's wrongful failure to warn consumers of the risk of asbestos contamination of talcum powder despite possessing internal evidence of that risk was a substantial factor in causing Ms. Olson's mesothelioma. Plaintiffs may introduce J & J advertisements at Phase II to show the degree of reprehensibility of that wrongful conduct.
The advertisements at issue are merely one form of what the jury found in Phase 1 was J & J's wrongful failure-to-warn conduct in the relevant time period—i.e. , J & J's concealment of the potential risks of using its talcum-powder products and false assurances to consumers that those products were entirely safe and beneficial. And the jury also found that J & J's failure-to-warn course of conduct had a nexus to the harm Ms. Olson suffered. This court concludes that the advertisements are not so dissimilar from the other forms of J & J's concealment and misrepresentation shown in Phase 1 of this trial as to sever that nexus.
Plaintiffs may not use the print and television advertisements to urge the jury to punish J & J for harm done to other consumers. But the advertisements are admissible to show J & J's reprehensibility of its failure-to-warn conduct that the jury found harmed Ms. Olson and her husband. This opinion is the court's decision and order.