Johnson's baby powder. Photo: Flickr/Mike Mozart

The judge overseeing the talc trial that last week resulted in a $25 million compensatory damages award has rejected Johnson & Johnson's efforts to limit the scope of the punitive damages phase solely to the company's financial information.

New York Supreme Court Justice Gerald Lebovits on Monday ruled that the plaintiff should be able to introduce new evidence during the punitive damages phase, including evidence of the company's out-of-state conduct and advertisements for its Baby Powder products that ran between the 1960s and 1990s.

The plaintiffs, Donna and Robert Olson, had also sought to have the jury consider evidence of J&J's conduct after 2015—the approximate date that Donna Olson stopped using the company's talcum powder—but Lebovits also rejected that request.

Monday's ruling came on the eve of the punitive damages phase of the case, which was set to begin Tuesday, and addressed the first impression issue of whether New York City Asbestos Litigation rules allow new evidence can be introduced during the punitive damages phase.

J&J had contended that only the company's financial information can be introduced during the punitive phase, but Lebovits said that, although the rules allow for limited discovery into a defendant's financial situation, they do not limit the evidence solely to financials. The judge further said New York law does not limit the permissible evidence solely to financials either.

“To be sure, the parties should avoid lengthy and potentially duplication presentations of evidence on punitive damages at Phase II here, particularly in view of the long duration of Phase I,” Lebovits said. “But the need judiciously to streamline the parties' Phase II presentations does not require wholesale preclusion of new evidence beyond financial condition.”

According to court documents, Olson sued J&J over claims that she regularly used talcum powder, including J&J's baby powder, from her childhood—beginning roughly in the year 1953—to 2015, and that this exposure caused her to develop mesothelioma. Olson also contended that, from the 1930s through the 1960s, the defendants should have become aware of the scientific data establishing the link between asbestos-containing products and cancer.

She contended that the defendants failed to properly warn about the dangers of the talc products and raised negligence and strict liability claims.

In court papers, the defendants disputed whether the J&J baby powder Olson used actually contained asbestos.

Last week a Manhattan jury awarded Olson $25 million over claims that she developed mesothelioma from prolonged exposure to asbestos-containing talcum powder. The award was entirely for punitive damages.

Along with asking the court to limit the new evidence at the punitive stage solely to financial information, J&J also contended that the plaintiffs should be barred from introducing evidence about the company's conduct outside New York, or introducing its old advertisements, contending that the underlying conduct would not have directly impacted Olson, but would have only impacted non-parties.

Lebovits, however, said the evidence was not being used to punish J&J for conduct that affected non-parties, but instead was being used to show the alleged “degree of reprehensibility” of J&J's conduct. Therefore, he said, the jury should be able to hear the evidence.

The plaintiffs had also sought to introduce evidence about J&J and its CEO making statements from 2018 and 2019 about the safety of its talcum powder, but Lebovits said due process barred that evidence, since Olson stopped using J&J's Baby Powder in 2015.

“The jury may not award punitive damages to punish J&J for any harm that J&J inflicted on nonparties,” Lebovits said.

Neither Jerome Block of Levy Konigsberg, who is representing Olson, nor a J&J spokeswoman immediately returned messages seeking comment Tuesday morning.