J&J Faces Fourth Missouri Talc Trial

By Julie A. Steinberg

Johnson & Johnson faces its fourth talcum powder cancer trial in a St. Louis courtroom Feb. 6, despite an ongoing challenge to the court’s authority to hear the suit ( Swann v. Johnson & Johnson , Mo. Cir. Ct., No. 1422-CC09326, trial set 2/6/17 ).

Juries in St. Louis awarded verdicts of $70 million, $72 million and $55 million in 2016 to three non-Missouri women who allege use of the company’s talc products in the genital area caused ovarian cancer.

J&J is challenging those verdicts on appeal and wanted to put the upcoming trial, which also involves an out-of-state resident, on hold.

The company argued that the courts lack jurisdiction over the suits because of a lack of a Missouri connection between the defendants and the non-residents’ claims.

The jurisdictional challenge could affect claims by more than 1,300 other non-Missouri plaintiffs with suits pending in St Louis, it said.

The company’s jurisdiction argument may find support in the U.S. Supreme Court’s recent decision to review a California Supreme Court decision involving similar arguments in another drug suit, Bristol-Myers Squibb Co. v. Super. Ct. of Cal., U.S., No. 16-466, review granted 1/19/17 .

But an intermediate state appeals court and Missouri’s top court both recently denied the company’s request to postpone proceedings.

Those rulings pave the way for Tennessee resident Nora Daniels, the plaintiff in the upcoming trial, to argue to a jury that she developed ovarian cancer in 2013 after decades of using talcum powder.

Women Say Science Shows Link

Daniels and the other talc plaintiffs allege numerous scientific studies dating back decades have shown a link between ovarian cancer and genital use of talcum powder.

They contend J&J promoted products like Johnson’s Baby Powder and Shower to Shower as feminine hygiene products despite this knowledge, and failed to include warnings.

Cornstarch, a safer alternative to talc, was available, Daniels’s complaint says.

One of Daniels’s attorneys says he is confident of a fourth win in St. Louis.

“We have an exceptional team of experts to testify to the science. There are more than 20 independent, credible scientific studies showing the link between talcum powder use by women, and an increase in ovarian cancer diagnoses,” attorney Ted Meadows of Beasley Allen in Montgomery, Ala., told Bloomberg BNA.

“The science showing the risk factors, showing causation, is consistent and solid,” he said.

J&J representatives didn’t return e-mails seeking comment.

But the company has said in prior statements that it stands by the safety of cosmetic talc.

“Among the many studies that have confirmed the safety of talcum powder use are two major prospective cohort studies that included more than 130,000 women and were run for more than 14 years,” one statement on its website says.

“No government health authority has concluded that talc can cause ovarian cancer,” the company says.

The Jurisdictional Challenge

The non-residents suing Johnson & Johnson are properly before the St. Louis court, and the defendants have a presence in Missouri, Meadows says.

Missouri law allows out-of-state plaintiffs to combine their claims with those of St. Louis residents.

Daniels, for example, is part of a multi-plaintiff complaint that also includes claims on behalf of Valerie Swann, a St. Louis resident.

“It’s our position that anyone has the constitutional right to bring a case in the jurisdiction of his or her choosing,” Meadows said.

“We’ve chosen St. Louis to file several talc-related claims because it’s a central location that makes sense for these consumers. The rulings by the Court of Appeals and Supreme Court affirm that position,” he said.

Some defense-oriented groups say St. Louis is a plaintiff-friendly jurisdiction.

But juries there have also handed down some significant defense verdicts. They include one for Altria Group Inc.'s Philip Morris unit in a Marlboro Lights cigarette deception suit, and one for Pfizer Inc. in the first Zoloft birth defect trial.

J&J also faces some 200 suits in a New Jersey state court over its talc products. Plaintiffs there recently appealed a trial judge’s ruling that barred their experts in the first two test trials.

Additionally, the company faces about 100 federal suits in a combined proceeding in the U.S. District Court for the District of New Jersey.

Beasley, Allen represents the Missouri plaintiffs.

HeplerBroom LLC and Shook, Hardy & Bacon LLP represent Johnson & Johnson.

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

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

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