Talc ovarian cancer litigation against Johnson & Johnson and supplier Imerys Talc America, Inc. has shifted from state courts in Missouri and elsewhere to federal court in New Jersey.
The movement to federal court is good news for J&J because some plaintiffs in state courts, particularly in Missouri, have been awarded multi-million dollar verdicts recently in the high-profile talc litigation.
Some 4,003 plaintiffs have filed suits in the federal consolidated litigation, where no trial have yet taken place, according to a Dec. 5 report. That’s up from 2,688 plaintiffs in the federal proceeding, as reported Sept. 29. The newest figures are current as of Dec. 1.
The movement to the New Jersey federal court, where most of the litigation now resides, is largely a result of the U.S. Supreme Court’s ruling in Bristol-Myers Squibb Co. v. Superior Court, which limited where companies could be sued by requiring a stronger connection between the plaintiff’s claim and the company’s alleged bad conduct.
After BMS, Judge Freda L. Wolfson of the U.S. District Court for the District of New Jersey issued an order that let plaintiffs refile their cases in the consolidated proceedings, to avoid a potential challenge based on jurisdiction, a strategy that J&J has used with some success in Missouri.
Wolfson’s order allows plaintiffs to select a new jurisdiction, such as one’s home state. It protects cases from dismissal by suspending time limits for cases that were timely filed to begin with.
More than 1,900 plaintiffs have refiled their cases in the MDL under the order, the newest status report said.
“The post- BMS shuffle has occurred,” Leigh O’Dell, co-lead counsel for the talc plaintiffs, told Bloomberg Law.
A majority of those 1,900 plaintiffs had initially filed cases in state court in Missouri, said O’Dell, of O’Dell, of Beasley Allen in Montgomery, Ala.
But it’s not surprising that a majority of cases in a mass tort with state- and federal-court pieces would be in the federal MDL, O’Dell said.
And although there are more cases now in the MDL than anywhere else, “there are still a significant number of cases in St. Louis and we expect that to continue to be a robust venue for the litigation,” she said.
J&J, according to its own numbers, was facing suits from about 5,500 ovarian cancer plaintiffs as of Oct. 1, according to a Nov. 2 securities filing.
There are 15 multi-plaintiff cases pending in the City of St. Louis, according to the report, though how many plaintiffs in each case is unclear.
A J&J spokeswoman said she couldn’t provide any more specific, or updated numbers.
Four juries in St. Louis have awarded talc verdicts against J&J ranging from $55 million to $110 million. J&J has contested whether non-Missouri plaintiffs can sue in that state, and says the June BMS ruling strengthens its arguments.
J&J, which is incorporated in New Jersey, has had mixed success with its jurisdictional challenges, including to two of those big verdicts.
A trial judge upheld the $110 million verdict, ruling J&J’s use of a Missouri company to manufacture, package, and label the powder provided enough of a connection to allow the Virginia woman’s suit there.
J&J is expected to appeal the affirmance of that verdict, which included $105 million in punitive damages.
But in October, a Missouri appeals court threw out a $72 million award in the first suit tried, saying the out-of-state plaintiff, Jacqueline Fox, wasn’t entitled to sue in Missouri.
Fox’s family has appealed, saying they weren’t given an opportunity to meet the jurisdiction test of BMS. The jury verdict in that case came down in February 2016, months before the BMS decision.
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 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.
The company’s argument has gained some purchase in state court in California, which has a cluster of talc suits. The company also has had success in New Jersey where, in addition to the federal litigation, a number of suits are in state consolidated proceedings.
Some 438 plaintiffs have suits in California, and the New Jersey mass tort in state court numbers just shy of 300 plaintiffs, the status report said.
A California judge threw out a $417 million award recently. Among other things, the court found insufficient evidence of causation.
And a New Jersey trial judge in 2016 tossed the first two plaintiffs’ suits, saying their scientific experts couldn’t support their theory that talc use causes ovarian cancer.
The New Jersey state plaintiffs have appealed the evidence ruling, and the talc cases there have been stayed pending resolution of the appeal.
Meanwhile, the MDL plaintiffs have disclosed their experts to the court and to the parties, as directed by the court, O’Dell said. The federal plaintiffs have a “deep bench” of experts to support their theory that genital use of talcum power caused their ovarian cancer, she said.
More than 30 experts in multiple scientific disciplines have been disclosed, O’Dell said. Nearly all are experts who haven’t been involved in prior talc trials.
Defendants have not yet been directed to disclose their experts, she said.
The case is In re Johnson & Johnson Talcum Powder Prod. Mktg., Sales Prac. & Prod. Liab. Litig. , D.N.J., No. 16-2738, report 12/5/17
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