Mark Robinson Jr., of Robinson Calcagnie.

Plaintiffs lawyers who lost a California appeals court decision affirming dismissal of a $417 million talcum powder verdict have petitioned the California Supreme Court to review the case.

In a brief filed Aug. 9, attorney Mark Robinson sought to reverse last month’s decision by the Second District Court of Appeal, which lawyers in the multidistrict litigation in New Jersey over Johnson & Johnson’s baby powder cited in briefings ahead of a hearing on expert evidence. Monsanto Co. also unsuccessfully relied upon the ruling in motions hoping to overturn a $2 billion Roundup verdict.

Robinson wrote that the July 9 ruling, which has “significant consequences for many products liability actions,” was inconsistent with the California Supreme Court’s 2017 holding in T.H. v. Novartis Pharmaceuticals.

“I have no doubt we’ll win that issue, that we raised, that Novartis applies here, and the court of appeals was wrong,” said Robinson, of Robinson Calcagnie Inc. in Newport Beach, California.

The argument is key to unraveling the appeals court decision because it found no liability as to Johnson & Johnson, which stopped selling the product after 1967. In a key finding for the plaintiffs, however, the appeals court concluded “substantial evidence” existed that Johnson & Johnson’s subsidiary, Johnson & Johnson Consumer Inc., “breached a duty to warn of the risks of ovarian cancer from genital talc use.”

In Novartis, the Supreme Court found the original manufacturer of a brand-name pharmaceutical was liable for failing to warn about the generic drug equivalent that followed.

By limiting liability to Johnson & Johnson Consumer Inc., the Second District Court of Appeal adopted a “narrow, restrictive and incorrect” view of Novartis as applying only to pharmaceuticals, the plaintiffs’ brief says.

“There are all sorts of products in California that have hazards and risks, and, frankly, the laws that apply to them, product defect or negligent failure to warn, go across the board on all types of products,” Robinson said. “It’s not just pharmaceutical products.”

The appeals court also upheld dismissal of punitive damages.

“We are pleased with the California appellate court’s review of the case and that they agreed with [Los Angeles Superior Court] Judge [Maren] Nelson’s finding that punitive damages should not have been awarded,” wrote Johnson & Johnson spokeswoman Kimberly Montagnino. “They also found that ‘it was also undisputed that there has not been direct, conclusive evidence establishing genital talc use causes ovarian cancer.’ We look forward to presenting our view that talc does not cause ovarian cancer to the California Supreme Court.”

The case, brought by Eva Echeverria, landed one of the largest talcum powder verdicts in the country in 2017. The verdict included $70 million in non-economic damages and $347 million in punitive damages.

After the verdict, Los Angeles Superior Court’s Nelson granted Johnson & Johnson’s motions for a new trial and judgment notwithstanding the verdict, finding “ongoing debate in the scientific and medical community” over whether talc caused ovarian cancer, particularly in the case of Echeverria, who died a month after the verdict.

The Second District Court of Appeal, in a unanimous decision, agreed with Nelson except as to Johnson & Johnson Consumer Inc.’s liability.

Under Novartis, that holding should have extended to Johnson & Johnson, which remained heavily involved in the product’s warnings, Robinson said.

“They stayed involved with the decision not to give warnings out to the women, from ’67 to today,” he said. “They still haven’t warned.”

In his brief, Robinson also argued that the appeals court used the wrong standard of review in evaluating punitive damages. At the very least, Robinson said, the judge should have reduced but not eliminated them. “If, in fact, they decide in our favor, we get punitive damages back,” he said.

The appeals court also gave too much weight to Nelson’s ruling, given that she based her rulings on “errors of law and unsubstantiated or mistaken assumptions of fact,” the brief says.

“The opinion therefore goes too far and grants unbridled deference to trial courts to overturn verdicts, even when they are wrong on the law and wrong on the facts,” the brief says.