Robert H. Wright is a Partner with Horvitz & Levy LLP in Los Angeles, CA and is the WLF Legal Pulse’s Featured Expert Contributor on Mass Torts—Asbestos.

Juries in the same states applying the same law have returned conflicting verdicts on the question whether Johnson & Johnson’s Baby Power is defective.  Should punitive damages be available given the divergence in these verdicts?  To borrow from Charles Dickens, these cases present a tale of two verdicts: it has been the best of times and the worst of times for Johnson & Johnson.  But if juries applying the same law disagree about whether the same product is defective, can it be said in any case that there is clear and convincing evidence of malice, oppression, or fraud to support an award of punitive damages?

For example, last year California juries in Weirick v. Johnson & Johnson (Los Angeles County Superior Court, Case No. BC656425) and Schmitz v. Johnson & Johnson (Alameda County Superior Court, Case No. RG18923615) considered the plaintiffs’ claims that they developed mesothelioma from exposure to asbestos in J&J’s Baby Power.  In Weirick, the jury found the product was not defective.  In Schmitz, the jury found the product was defective.  The jury in Schmitz returned a verdict in the plaintiff’s favor on the issues of liability, causation, and compensatory damages, but split on the question whether the plaintiff had proven malice, oppression, or fraud by clear and convincing evidence.  The court declared a partial mistrial and set a new trial on punitive damages.

The issue extends beyond California.  A New Jersey jury in Lanzo v. Cyprus Amax Minerals Co. considered the plaintiff’s claim that he developed mesothelioma from exposure to asbestos in J&J’s Baby Power.  (Middlesex County Superior Court, Case No. MID-L-7385-16.)  The jury found the product was defective, and specifically that it was “defectively designed.”  The jury awarded a total of $37 million in compensatory damages, allocating 70 percent of the fault to J&J and 30 percent to another defendant.  The jury also found that the plaintiff had proven his punitive damages claims by clear and convincing evidence, awarding $55 million in punitive damages against J&J.

But a New Jersey jury in Rimondi v. BASF Catalysts LLC reached the opposite conclusion when considering the plaintiff’s claim that he developed mesothelioma from exposure to asbestos in J&J’s Baby Power.  (Middlesex County Superior Court, Case No. MID-L-002912-17.)  The jury unanimously found the baby power did not contain asbestos.

Should punitive damages be available in these cases when juries disagree about the threshold question whether the product is even defective?

Punitive damages must be based on the particular conduct that gave rise to the liability of the defendant.  In State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 422-23 (2003), the U.S. Supreme Court held, as a matter of due process, that “[a] defendant’s dissimilar acts, independent from the acts upon which liability was premised, may not serve as the basis for punitive damages.  A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business.”  Id. at 422-23 (emphases added); see also Philip Morris USA v. Williams, 549 U.S. 346, 353-55 (2007) (due process prohibits punishment for harm to others).

In many jurisdictions including California and New Jersey, the standard of proof for an award of punitive damages is clear and convincing evidence.  Cal. Civ. Code § 3294(a); N.J St. Ann. § 2A:15-5.12.  In California, that standard “requir[es] that the evidence be ‘so clear as to leave no substantial doubt’; ‘sufficiently strong to command the unhesitating assent of every reasonable mind.’”  In re Angelia P., 28 Cal. 3d 908, 919 (1981).  “When there is sharply conflicting evidence . . . it is very difficult for a party to meet this high standard.”  Weiner v. Fleischman, 54 Cal. 3d 476, 490 (1991).  In New Jersey, the standard requires evidence that “leaves no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.”  N.J. St. Ann. § 2A:15-5.10.

When juries applying the same law to the same product return conflicting verdicts on the existence of a product defect, can it be true that anything has been shown by clear and convincing evidence?  Such conflicting findings on the threshold question whether the product is even defective show that the cases present close issues under the lower standard required to establish liability.  Those close issues seem incompatible with the heightened standard required for an award of punitive damages.  If juries can conclude that it “was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness,” perhaps it cannot be any of those things by clear and convincing evidence.