Photo: Mike Mozart/Flickr

Hours before New Jersey jurors on Thursday came out with a $750 million verdict in a talcum powder case, attorney Chris Panatier told them that their award was "going to have to be big" to deter Johnson & Johnson, according to a transcript. New Jersey law prohibited Panatier from suggesting a specific dollar figure, but he noted that Johnson & Johnson CEO Alex Gorsky, who testified at trial, made $30 million a year and had $300 million in stock options.

That prompted an objection from Johnson & Johnson lawyer Allison Brown, who called the introduction of Gorsky's compensation "wildly improper" and moved for a mistrial.

Panatier, a shareholder at Simon Greenstone Panatier in Dallas, defended his actions, according to the transcript.

"I have not suggested a number on punitive damages at all," he told the judge in a sidebar. "I am talking about what the company pays their CEO."

The executive compensation remark was one of several objections made by Johnson & Johnson in a high-stakes trial that focused solely on punitive damages. On Thursday, according to the transcript, the lawyers were in a fight to the finish, forcing the judge to make two curative instructions for the jury to ignore the attacks the attorneys had made about each other.

It was the second phase of a trial involving four individuals who alleged that its baby powder caused them to get mesothelioma. On Sept. 11, a different jury awarded $37.3 million in compensatory damages.  During that phase, Middlesex County Superior Court Judge Ana Viscomi struck the closing argument of Johnson & Johnson's attorney, Diane Sullivan, of Weil, Gotshal & Manges, after she "denigrated" plaintiffs' counsel, calling them "sinister" and "attacking the profession."

This time, Johnson & Johnson had a new legal team spearheaded by Brown, a partner at New York's Skadden, Arps, Slate, Meagher & Flom, and Morton Dubin, a New York partner at King & Spalding. Viscomi did not strike anyone's closing, but she did give two curative instructions to the jury just before deliberations: Ignore Panatier's remarks about his opponent using "lawyer tricks," and disregard Brown's comment about "lawyers advancing arguments in the interest of winning a lawsuit."

In his final words to the jury, Panatier made it clear that the focus of their verdict should be on Johnson & Johnson's conduct.

"So when you think about the punitive damages, what number punishes and deters them, you've got to think in Johnson & Johnson terms," he said, noting that Johnson & Johnson was a "$60 billion company." "And you can make them pay attention. And that is an immense responsibility and it is an immense, immense task that you'll have to try amongst the 10 of you to determine what that number should be."

Less than three hours later, the jury returned with that number, which was $187.5 million for each of the four plaintiffs. Viscomi, citing New Jersey's Punitive Damages Act, which caps punitive damages in the state at five times the compensatory damages, immediately reduced the total award to $186.5 million.

"It was a long, hard-fought case," said Chris Placitella, of Cohen Placitella & Roth in Red Bank, New Jersey. "The evidence we put on in our affirmative case was clear and convincing, as required by statute, and I don't believe that J&J put on a defense to overcome that overwhelming proof."

The fight in court is not over. Plaintiffs' lawyers plan to challenge portions of the final judgment, and Johnson & Johnson said it would appeal the jury's findings in both phases of the trial, citing "numerous legal errors that subjected the jury to irrelevant information and prevented them from hearing meaningful evidence."

Johnson & Johnson attorney John Beisner, of Skadden, called the trial "an outlier from the very beginning with the highly unusual and prejudicial two phases."

In particular, he said in an interview, there were two separate juries hearing both phases.

"The problem is the first jury hears all the facts, makes a decision and the second jury comes in but it's only hearing some of the facts that deal with their phase," he said. "The reexamination argument is if there is a second jury, they should not be thinking about addressing any of the facts in the first trial. When you have a punitive damages phase of the case, by definition that's going to be a reexamination of the facts in the first trial."

There are likely to be other appellate arguments. On Thursday, Brown referenced improper evidence about Gorsky's stock sales during the trial. Panatier also asked Gorsky, testifying in person for the first time in a talcum powder trial, about his appearance on CNBC's "Mad Money" soon after two news articles came out in 2018 citing internal documents that showed asbestos in Johnson & Johnson's products.

On the stand, Gorsky acknowledged that he had not read those documents. On Thursday, Panatier told the jurors Gorsky wasn't telling the truth about the first time he heard about asbestos in Johnson & Johnson's products.

"Johnson & Johnson is not speaking the truth," he told them. "They haven't spoken the truth. They have misled the public. They have misled health providers, regulators, people, sick people with righteous claims. They've misled them by saying there's no asbestos in our talc. 'We swear to it.'"

Gorsky's testimony was a key factor in the jury's award, Placitella said.

"We believe it had a tremendous impact on the jury, and we believe the jury may very well have been speaking to Mr. Gorsky in their verdict," he said.