Johnson & Johnson Gets $72M Talc Verdict Tossed on Appeal

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By Martina Barash

An out-of state plaintiff didn’t belong in a talc-injury case brought in a plaintiff-friendly Missouri court and isn’t entitled to her $72 million jury award against Johnson & Johnson, the Missouri Court of Appeals ruled Oct. 17 ( Estate of Fox v. Johnson & Johnson , 2017 BL 370679, Mo. Ct. App. E.D., No. ED104580, 10/17/17 ).

The court applied a recent U.S. Supreme Court opinion, Bristol-Myers Squibb Co. v. Superior Court of Cal., to determine that Jacqueline Fox’s claims related to her ovarian cancer didn’t arise out of J&J’s activities in the state.

With that, the court tossed the first of several talc verdicts, which have totaled more than $300 million in the Circuit Court of the City of St. Louis. A separate $417 million verdict is the subject of post-trial motions in a California state court.

“This was inevitable,” said Prof. Howard Erichson of Fordham University School of Law in New York.

The BMS decision held that in order to establish a court’s authority, plaintiffs must either file in one of a defendant’s “home” states or the state where their claim arose out of or was related to the defendant’s conduct, Erichson told Bloomberg Law.

But talc, more than other mass torts, has had its center of gravity in Missouri, he said, with the state’s multimillion-dollar verdicts being the first to be handed down against the company. So it may affect the plaintiffs’ momentum in the nationwide talc litigation, he said.

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 women to develop ovarian cancer.

“The big picture is that non-Missouri plaintiffs aren’t going to be able to file in Missouri,” he said.

The nonresident talc plaintiffs will be able to re-file their cases in their own states or in New Jersey, where J&J is headquartered, according to Erichson and attorney Mark Raffman.

Raffman, of Goodwin Procter LLP in Washington, defends companies in asbestos and other cases, but doesn’t represent J&J or other defendants in the talc litigation.

“The plaintiffs made a choice to bring the case in a forum they thought favorable,” he said. “Now they’re going to have to go back and try again.”

A federal court in Missouri recently dismissed some 79 talc suits by non-Missouri residents based on BMS. Meanwhile, many cases are pending in New Jersey’s mass tort proceedings against J&J over talc.

J&J, and attorneys for Fox’s estate, couldn’t be reached for comment.

Jurisdictional Hearing Rejected

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 she could bolster her factual argument for jurisdiction.

But the Missouri Court of Appeals reversed and vacated the trial court’s judgment. Fox’s estate didn’t show “a procedural path” for relitigating jurisdiction, especially given the “advanced posture” of the case, the court said.

Raffman agreed it would be hard to do that. ""I don’t know how the plaintiffs would have been able to go about the procedure they wanted to put in,” he said. “Given that they hadn’t established jurisdiction before trial, it’s hard to go back and fix it,” he said.

The federal court that recently dismissed the 79 talc suits addressed the idea of jurisdictional discovery in more detail. The plaintiffs said there’s evidence raw talc is sent with a Material Safety Data Sheet warning of the risk of ovarian cancer to Pharma Tech Industries in Union, Mo.

There, at the direction of Johnson & Johnson, the warning is cast aside and the talc is processed, bottled and labeled without warning, creating the defect in Missouri, the plaintiffs argued.

But the federal court said that evidence wouldn’t establish the necessary connection with Missouri. It drew a parallel to BMS, where a drugmaker’s contract with a California distributor wasn’t enough to support jurisdiction over nonresidents’ claims.

Bartimus Frickleton Robertson and Onder, Shelton, O’Leary & Peterson LLC represented Fox’s estate.

Armstrong Teasdale LLP, HeplerBroom LLC and Shook, Hardy & Bacon LLP represented J&J.

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

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

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