Credit: josefkubes/Shutterstock.com

The Missouri Court of Appeals appeared disinclined to question a jury's $4.7 billion talcum powder verdict but raised numerous jurisdictional questions about why the case against New Jersey-based Johnson & Johnson was in Missouri.

The case involved 22 women and their families alleging Johnson & Johnson's baby powder, which contained asbestos, caused them to get ovarian cancer. On Friday, Johnson & Johnson attorney Thomas Weaver argued to reverse the verdict, focusing in large part on the fact that the judge should never have joined the claims of so many plaintiffs into a single trial, particularly since 17 of them were not from Missouri. He claimed that doing so prejudiced the jury, which awarded $25 million in compensatory damages to each plaintiff in 2018.

"If this is not an abuse of discretion, if this didn't warrant separate trials, I can't imagine a case that would," said Weaver, of Armstrong Teasdale in St. Louis.

The panel of three judges appeared skeptical about challenging 22nd Circuit Judge Rex Burlison's order consolidated the claims, or the reasoning behind the jury's record award.

"How do we know what the jury was thinking?" said Philip Hess, one of the judges on the panel.

Kurt Odenwald, another panelist, asked plaintiffs attorney Kevin Parker, of The Lanier Law Firm in Houston, multiple questions about the connections Johnson & Johnson had with Missouri, particularly in light of the U.S. Supreme Court's 2017 decision in Bristol-Myers Squibb v. Superior Court of California. In Bristol-Myers, the Supreme Court found that plaintiffs who sued over injuries attributed to blood thinner Plavix had failed to establish specific jurisdiction because there wasn't enough of a link between their claims and California, where they brought their case.

The appeal is the latest in Missouri to involve a talcum powder verdict. Last year, the Missouri Court of Appeals reversed a $110 million award based on Bristol-Myers because the plaintiff was from Virginia, and previously reversed verdicts of $72 million, $70 million and $55 million on similar grounds. The Missouri Supreme Court also shut down several talcum powder trials involving multiple women originally planned for last year when it granted petitions for a writ of prohibition that Johnson & Johnson and another defendant, talc supplier Imerys Talc America Inc., had filed based on Bristol-Myers.

The reversed verdicts, however, involved a single plaintiff and predated Bristol-Myers. In the case now before the Missouri Court of Appeals, the plaintiffs attempted to establish jurisdiction by presenting evidence of a Missouri talc supplier, Pharma Tech Industries, which served as a distributor to Johnson & Johnson. On Friday, the appeals panel asked several questions about the Pharma Tech contract, which supplied Johnson & Johnson for some, but not all, of its products.

Thomas Weaver of Armstrong Teasdale.

They appeared less receptive to Weaver's argument that the jury was prejudiced in its verdict because plaintiffs attorneys were "homogenizing all the plaintiffs' claims," which originated in other states and involved different cancer stories.

Combining such myriad claims of so many people "defies human nature and common sense," Weaver told them at the hearing.

"It's impossible to suggest that they could have considered all this evidence and analyzed these claims on an individual basis, and then the record reflects that they didn't," he said, noting that the jury spent only eight hours deliberating.

Parker, in response, said the case had a "highly attentive jury."

"These people took their task seriously," he said of jurors. "The court should not just assume they were overwhelmed."

In its appeal briefs, Johnson & Johnson also raised numerous issues with plaintiffs' experts, including William Longo, founder of Materials Analytical Services, who testified on Capitol Hill last year. The briefs also accused plaintiffs attorneys of mischaracterizing Missouri law on causation in their closing argument, to which another panelist, Lisa Page, replied Friday, "The jury had the proper instructions in front of them, correct?"

Friday's hearing touched briefly on another issue: the constitutionality of and evidence supporting $4.14 billion in punitive damages in the jury's award. In 2018, Burlison affirmed the $4.7 billion award, citing Johnson & Johnson's "reprehensible conduct."

The hearing, which was limited to two lawyers for each side and broadcast on Facebook, comes after the Missouri Court of Appeals on April 8 ordered in-person oral arguments canceled due to the coronavirus outbreak. Between arguments Friday, a gloved member of the court staff wiped down the podium and microphone.