J&J Must Face Some Non-Missouri Talc Plaintiffs in Missouri

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By Julie A. Steinberg

Talc plaintiffs got a boost from a recent decision upholding a $110 million verdict and allowing some non-Missouri plaintiffs to sue Johnson & Johnson in Missouri under the Supreme Court’s new requirements.

J&J’s use of a Missouri company to manufacture, package, and label the powder provides enough connection with Missouri to make it fair for J&J to defend a Virginia woman’s suit there, a Missouri judge said ( Slemp v. Johnson & Johnson , Mo. Cir. Ct., No. 1422-CC09326-02, 11/29/17 ).

Lois Slemp established that the Missouri court has specific personal jurisdiction over Johnson & Johnson and supplier Imerys Talc America Inc. under the standard recently set by the Supreme Court in Bristol-Myers Squibb Co. v. Superior Court, the state court said.

Judge Rex M. Burlison of the Missouri Circuit Court for St. Louis Nov. 29 upheld the verdict for Slemp, which included $105 million in punitive damages.

Slemp alleged she developed ovarian cancer caused by decades of using Johnson’s Baby Powder and Shower to Shower powder. She said the defendants failed to warn about cancer risks.

The company says it will appeal.

The court in St. Louis has gained a reputation as plaintiff-friendly. In 2016, three St. Louis trials brought by other women suffering from ovarian cancer led to jury verdicts of $70 million, $72 million and $55 million against J&J and Imerys.

The company has contested the Missouri court’s jurisdiction in those cases as well, and has had success in getting one of the verdicts overturned under the new Supreme Court ruling.

Other Verdicts Overturned

In October, a Missouri appeals court threw out the $72 million award to the estate of Jacqueline Fox, saying the out-of-state plaintiff wasn’t entitled to bring suit there. Fox’s was the first of the talc verdicts.

The family has asked for a rehearing, saying the court threw out the award based on the standard newly set in BMS without giving the plaintiff an opportunity to supplement the record and meet the tougher jurisdiction test.

In additional to getting the Fox verdict reversed, J&J also recently won a federal court ruling in Missouri dismissing some 79 talc suits by non-Missouri residents based on BMS.

J&J also has succeeded in getting other big verdicts reversed on other grounds including in California where a state judge tossed a $417 million award. The court said J&J, as the parent company of the manufacturer, didn’t have a duty to warn a decades-long user that its Baby Powder could cause ovarian cancer.

Plaintiffs Look Ahead

The latest Missouri ruling “should allow us to affirm the earlier verdicts and move forward with additional trials in Missouri,” said Ted Meadows of Beasley Allen in Montgomery, Ala., co-lead counsel for Slemp.

“Now that jurisdiction has been confirmed by the court, future trials will be able to more clearly show the steps J&J has taken to deceive the public and medical community of the dangers of talcum powder use for feminine hygiene,” said Allen Smith of the Smith Law Firm of Ridgeland, Miss., co-lead counsel for Slemp.

BMS Standards Met

The jury award to Slemp came in May. A month later BMS limited where companies could be sued, requiring a significant connection between a company’s conduct in a state and a plaintiff’s claim.

J&J argued it was entitled to a reversal under BMS, but the court said the cases were different.In BMS, plaintiffs didn’t allege that the defendant drug company engaged in relevant conduct with a California distributor, or that BMS was liable for the distributor’s conduct in California, the Missouri court said.

“Here, by contrast, there is evidence that Defendants’ conduct giving rise to plaintiffs’ claims occurred in Missouri,” the court said.

Slemp alleged the defendants enlisted a Missouri company, PTI Union, LLC, to manufacture, label, and package Johnson & Johnson’s Baby Powder and Shower to Shower, the products at issue, the court said.

The products were manufactured in Union, Mo., and at a plant in Georgia that was under the control of the Missouri company, the court said.The evidence supported the jury’s award to Slemp, the court also said.

J&J faces suits by thousands of talc plaintiffs, including about 1,000 in Missouri.

Slemp’s case was part of a combined suit involving 61 plaintiffs, two of whom are Missouri residents.

Missouri law allows non-residents to bundle their claims into a single suit along with claims of Missouri residents.

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.

To contact the reporter on this story: Julie A. Steinberg in Washington at jsteinberg@bloomberglaw.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bloomberglaw.com

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