In a significant asbestos and talc decision, the Illinois Appellate Court, First District, affirmed a $45 million verdict in favor of the estate of Theresa Garcia, who developed mesothelioma after decades of using Johnson’s Baby Powder. The court also upheld the imposition of prejudgment interest and rejected challenges to successor liability claims against Johnson & Johnson affiliates created through the company’s recent corporate restructuring.
Background
Theresa Garcia was diagnosed with mesothelioma in January 2020 at age 52. She alleged that nearly five decades of exposure to asbestos-contaminated Johnson’s Baby Powder caused her disease. Following her death in July 2020, her daughter, Stephanie Salcedo, continued the litigation as administrator of Garcia’s estate, asserting claims under both the Illinois Survival Act and Wrongful Death Act.
After a four-week trial, a Cook County jury returned a $45 million verdict, awarding $33 million on the survival claim and $12 million on the wrongful death claim. Of the survival award, $30 million was allocated to Garcia’s loss of years of life, or “shortened life expectancy,” while $3 million compensated for pain and suffering, emotional distress, disfigurement, and loss of normal life.
The jury apportioned liability as follows:
- Kenvue Inc.: 70%
- Johnson & Johnson: 15%
- Johnson & Johnson Holdco (NA), Inc.: 15%
- LTL Management LLC: 0%
The trial court subsequently added approximately $2.66 million in prejudgment interest.
Court Upholds Survival Act Recovery for Lost Years of Life
The most significant aspect of the decision concerns the recoverability of shortened-life-expectancy damages after a plaintiff’s death.
Johnson & Johnson argued that Illinois law permits recovery for reduced life expectancy only when the plaintiff remains alive at the time of trial. According to the company, once Garcia died, any claim for lost future years became impermissible future damages.
The appellate court rejected that argument. Writing for the majority, Justice Hyman concluded that Garcia sustained the injury while she was alive because mesothelioma had already deprived her of decades of expected life. The court emphasized that the injury was not Garcia’s death itself, but the loss of years of life caused by the disease before her death occurred.
The court relied on Illinois Supreme Court precedent recognizing that a proven reduction in lifespan constitutes a compensable injury and held that the Survival Act preserves claims that accrued during the decedent’s lifetime. Accordingly, Garcia’s estate could continue pursuing damages for the years of life allegedly taken from her by mesothelioma.
Partial Dissent Warns of Expansion of Survival Damages
One justice dissented from this portion of the opinion.
The dissent argued that shortened-life-expectancy damages are inherently future-oriented and should be limited to living plaintiffs. According to the dissent, once a plaintiff dies, the Wrongful Death Act already provides compensation for the life that was lost and allowing both categories of damages risks double recovery.
The dissent characterized the majority’s ruling as a significant expansion of Illinois survival damages law and suggested that such a change should come from the Illinois Supreme Court or legislature rather than an intermediate appellate court.
Successor Liability Claims Against Kenvue and Holdco Survive
The court also affirmed the jury’s findings that both Kenvue and Holdco could be held liable as successors to Johnson & Johnson’s consumer products business.
The dispute arose from Johnson & Johnson’s efforts to manage mounting talc litigation through a corporate restructuring commonly referred to as the “Texas Two-Step.” Through a divisional merger, talc liabilities were assigned to LTL Management LLC, while other assets were transferred to affiliated entities, including Holdco. Johnson & Johnson later spun off its consumer health business into Kenvue.
Johnson & Johnson argued that Texas law should govern the restructuring and that neither Holdco nor Kenvue expressly assumed historical talc liabilities.
The appellate court disagreed, concluding that New Jersey law applied because New Jersey had the most significant relationship to the successor liability issues. Applying New Jersey law, the court found sufficient evidence to support liability under both the “mere continuation” and “product line” exceptions to the general rule against successor liability.
Evidence showed continuity of management, employees, facilities, operations, branding, and goodwill, while Kenvue continued marketing Johnson-branded baby powder products and maintained the consumer health business that generated the challenged liabilities.
Evidentiary Challenges Rejected
The court also rejected Johnson & Johnson’s arguments that several evidentiary rulings deprived it of a fair trial.
Among other rulings, the court upheld the exclusion of certain testimony from Johnson & Johnson’s chief medical officer because he had not been disclosed as an expert witness and lacked personal knowledge regarding historical company practices. The court likewise rejected challenges related to plaintiff expert Mark Bailey and causation expert Dr. Steven Haber, finding no abuse of discretion by the trial judge.
Prejudgment Interest Statute Upheld
Finally, the appellate court upheld Illinois’ prejudgment interest statute against a constitutional challenge. The court reasoned that prejudgment interest is a ministerial addition to a verdict, similar to costs or postjudgment interest, and does not interfere with the jury’s determination of liability or damages.
Takeaway
Salcedo v. Johnson & Johnson may become one of the most important recent Illinois asbestos decisions. The ruling not only affirms a substantial talc mesothelioma verdict, but it also recognizes that an estate may recover damages for a decedent’s lost years of life under the Survival Act after death has occurred. The decision further demonstrates courts’ willingness to scrutinize corporate restructuring efforts designed to isolate mass tort liabilities and confirms the continued viability of successor liability theories against entities associated with the Johnson & Johnson talc business. This has certainly teed up a fight in the Illinois Supreme Court.