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J&J, Talc Witness Get Criminal Contempt Ruling on Absence Nixed

May 19, 2022, 10:09 PM

A trial judge’s criminal contempt ruling against Johnson & Johnson and a key witness in its defense of a talcum powder product liability suit must be reversed because the judge “inferred and presumed” that the company and witness lied to him, an Illinois appeals court ruled.

The reprieve applies to the finding of “direct” criminal contempt—for contemptuous conduct in the presence of a judge—over explanations about the witness’s absence from the stand, Justice James R. Moore said Wednesday for the Illinois Appellate Court, Fifth District.

But the case will go back to the trial court for a determination, with “all appropriate due process rights,” of whether J&J and Dr. Susan Nicholson committed indirect criminal contempt, Moore said. Indirect contempt, occurring outside the presence of the court, must be proven with evidence, he said.

The appeals court declined to reassign the matter to a new trial judge as J&J requested.

Nicholson traveled to testify at the trial on a Friday. But when told her testimony would be needed in person the following Monday, she resisted, giving a reason in private to the judge, the appeals court said. After they spoke, the judge said Nicholson would appear on Monday after all.

But she didn’t, according to the appeals court. On Sunday night, counsel for J&J allegedly informed the judge that she would be absent because of her own medical emergency. The judge struck her testimony, refused J&J’s documentation of her condition, and held her and J&J in direct criminal contempt.

But that ruling was in error, the appeals court said. “For the trial court to have found Dr. Nicholson and J&J in contempt (i.e., determine that Dr. Nicholson was not ill and was lying), it would have had to rely upon proof of matters outside of the court’s immediate knowledge,” Moore said. “This type of contempt would be indirect, not direct.”

Justices Thomas M. Welch and Judy Lynn Cates also served on the panel.

HeplerBroom LLC, Skadden, Arps, Slate, Meagher & Flom LLP, and Porter Hedges LLP represented J&J and Nicholson.

The Office of the Illinois State’s Attorney Appellate Prosecutor represented the state.

The case is People v. Johnson & Johnson, 2022 BL 171535, Ill. App. Ct., 5th Dist., No. 5-21-0250, 5/18/22.

To contact the reporter on this story: Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com