Missouri Judge Upholds $110M Talc Verdict, Saying New Evidence Cleared Jurisdiction Hurdle
Wednesday's ruling gave a boost to plaintiffs lawyers suing Johnson & Johnson over its baby powder and Shower to Shower products, which they allege caused women to get ovarian cancer.
November 30, 2017 at 04:14 PM
4 minute read
A Missouri judge has upheld a $110 million talcum powder verdict, finding for the first time that new evidence produced by plaintiffs attorneys was sufficient to overcome the jurisdictional hurdles of a U.S. Supreme Court decision earlier this year.
Wednesday's ruling gave a boost to plaintiffs lawyers suing Johnson & Johnson over its baby powder and Shower to Shower products, which they allege caused women to get ovarian cancer. Plaintiffs have won five verdicts, ranging from $55 million to $417 million, all but one in Missouri. But the Supreme Court's June 19 decision in Bristol-Myers Squibb v. Superior Court halted the litigation because it challenged whether plaintiffs who aren't from Missouri had jurisdiction to sue Johnson & Johnson and supplier Imerys Talc America Inc. in Missouri.
In an attempt to salvage the Missouri cases, plaintiffs attorneys pursued discovery of talc manufacturer Pharma Tech Industries, which has a plant in Union, Missouri. Taking up that evidence, Judge Rex Burlison of the 22nd Judicial Circuit Court in St. Louis found in his 12-page ruling that there was “substantial evidence” to “satisfy the stringent standard for personal jurisdiction set forth in Bristol-Myers.”
“Upon review of the record and the standard as enunciated in Bristol-Myers, the court finds that plaintiffs have sufficiently established that specific personal jurisdiction exists over both the Johnson & Johnson defendants and Imerys,” the judge wrote.
Burlison rejected about a dozen posttrial motions that Johnson & Johnson and Imerys filed to reverse the $110 million verdict, awarded to Lois Slemp, a woman from Virginia. But plaintiffs lawyer Ted Meadows said the ruling would aid all Missouri cases, including those with verdicts now on appeal.
“This ruling confirms that even the limited evidence we've uncovered regarding Pharma Tech is sufficient to meet the high standard set by the Supreme Court, and should allow us to affirm the earlier verdicts and move forward with additional trials in Missouri,” said Ted Meadows, of Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Alabama.
Johnson & Johnson vowed to appeal the decision to the Missouri Court of Appeals.
“The U.S. Supreme Court's decision in the Bristol Myers Squibb case and the prior ruling by the Missouri Court of Appeals in the Fox case makes clear that this court does not have jurisdiction and the Slemp case should be dismissed,” spokeswoman Carol Goodrich wrote in an email.
Gwen Myers, a spokeswoman for Imerys, which was found 1 percent liable for the verdict, didn't address the Missouri decision but noted that the talc supplier had been removed in a case in California.
On Oct. 17, the Missouri Court of Appeals vacated a $72 million talc verdict for the husband of an Alabama woman named Jacqueline Fox, citing Bristol-Myers. The panel found that it could not, under Missouri law, allow additional discovery in the case, particularly at such an “advanced posture.”
“This court, however, believes this case is not in such advance posture so as to prohibit a review of jurisdictional facts,” Burlison wrote in the Slemp case. “The court finds that fundamental fairness and due process require that the court allow plaintiff to make a record that would support personal jurisdiction, in light of the Bristol-Myers decision, a decision that was handed down after a jury verdict was returned in this case.”
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 court also found that a California distributor, McKesson Corp., didn't have enough connection to the claims.
On the same day as the ruling, Burlison granted a mistrial in a separate case but allowed plaintiffs attorneys to pursue discovery of Pharma Tech.
In this week's ruling, Burlison distinguished Pharma Tech from McKesson. Pharma Tech, he wrote, manufactured “the very products which caused injury to the plaintiffs.”
“In Bristol-Myers, it was not alleged that BMS engaged in relevant acts together with McKesson in California, nor that BMS was derivatively liable for McKesson's conduct in California,” Burlison wrote. “Here, by contrast, there is evidence that defendants' conduct giving rise to plaintiffs' claims occurred in Missouri.”
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