The family of the Alabama woman whose $72 million talc verdict against Johnson and Johnson was thrown out wants a chance to prove a Missouri court can hear the case under the U.S. Supreme Court’s new jurisdiction rules. And it’s willing to forego the multi-million-dollar award to start over.
Jacqueline Fox’s estate asked the Missouri Court of Appeals Oct. 31 to reconsider its recent ruling tossing the verdict. The court threw out the award based on the standard newly set in Bristol-Myers Squibb Co. v. Superior Court without giving the plaintiff an opportunity to supplement the record and meet the tougher jurisdiction test, the estate said ( Estate of Fox v. Johnson & Johnson , Mo. Ct. App. E.D., No. ED104580, motion filed 10/31/17 ).But fundamental fairness and due process require that the estate be permitted an attempt to establish personal jurisdiction over J&J under the Bristol-Myers test, the estate said.
“If this means that the entire verdict must be set aside–vacated–before the personal jurisdiction issues are decided anew,” the estate “acquiesces in this result,” the filing said.
The Bristol-Myers Squibb v. Superior Court of Cal. decision limits where companies can be sued, requiring a connection between a plaintiff’s claims and the defendant’s contacts with the state where suit is filed.
The decision has thrown a wrench in the efforts of non-Missouri plaintiffs to keep their cases in the Circuit Court for the City of St. Louis, where juries issued four verdicts, including the one for Fox’s estate, totaling more than $300 million.
“We accept the fact that the U.S. Supreme Court’s Bristol-Myers Squibb ruling changed the jurisdictional requirements 17 months after the Fox verdict,” Ted Meadows, one of the plaintiffs’ attorneys, said in a statement to Bloomberg Law.
“But what we cannot accept are Johnson & Johnson’s attempts to use that ruling to evade justice, and deny the Fox family the opportunity to prove their claim meets the criteria of the BMS ruling,” said Meadows, of Beasley Allen in Montgomery, Ala.
Johnson & Johnson said it had no comment on the filing.
The company has contested the Missouri court’s jurisdiction and also has appealed the other verdicts.
The Fox case was the first state-court case to go to trial alleging J&J’s talcum products cause ovarian cancer.
The verdict came down in February 2016, awarding $10 million in compensatory damages and $62 million in punitive damages to Fox’s family.
The case had proceeded under then-existing rules of jurisdiction after a Missouri appeals court and the state’s top court rejected J&J’s jurisdiction-based challenges.
Fox was initially part of a case that included 65 plaintiffs, two of whom were Missouri residents.
At the time, “Missouri courts appeared to accept the rule that commonality between the in-state plaintiffs and the out-of-state plaintiffs created specific personal jurisdiction in Missouri courts,” the estate said.
Then came the Bristol-Myers decision, and then came a round of supplemental briefing to address its effect on the case.
J&J said the trial court lacked jurisdiction to hear the suit because the family’s claims didn’t arise out of its activities in Missouri.
Fox’s estate argued the appeals court should have kept the verdict on hold and sent the case back to the trial court for proceedings in which it could bolster the factual argument for jurisdiction under the tougher BMS standards.
The family sought to establish that J&J directed the production and distribution of its products in Missouri through a Missouri company, Pharma Tech.
But J&J said the estate was precluded from supplementing the record and urged the court to dismiss the case outright.
The appeals court sided with J&J. It reversed and vacated the trial court’s judgment. Fox’s estate didn’t show “a procedural path” to stay a jury verdict and relitigate jurisdiction, especially given the “advanced posture” of the case, the court said.
The appeals court should clarify that its unusual language of judgment, “reverse and vacate,” operates to set aside the entire verdict but still allows reconsideration of the personal jurisdiction issue in the trial court under the BMS standard, the new filing said.
“Here the equities come down heavily” on the side of the estate to make the case for personal jurisdiction based on the changed law, the estate said.
Women whose cases haven’t yet been tried “will have an opportunity to submit new proof to establish personal jurisdiction,” the filing said. “It hardly seems equitable to deprive the plaintiff here of the very opportunity that she made necessary for the later-in-line plaintiffs.”
Alternatively, the estate seeks transfer to the Missouri Supreme Court for resolution.
Johnson & Johnson said in an August 3 securities filing that it is defending itself from about 4,800 plaintiffs who allege its talc products, mainly Johnson’s Baby Powder, caused ovarian cancer.
J&J denies there’s an increased cancer risk from using its talc products for female hygiene and points out that no government health authority has found otherwise.
Bartimus, Frickleton, and Robertson, P.C. and others represent Fox’s estate.
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The motion is at http://src.bna.com/tTk
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