Johnson & Johnson appeared to turn the tide in the talcum powder litigation this year—with a big boost from the U.S. Supreme Court.

Johnson & Johnson was hit with a trio of double-digit verdicts out of Missouri in 2016, and now faces lawsuits by more than 5,000 women alleging its iconic baby powder and Shower to Shower products caused them to get ovarian cancer. But a new legal team out of Proskauer Rose's Los Angeles office scored the first defense win earlier this year—then got a record $417 million verdict in California thrown out. And Johnson & Johnson got a big boost in June with the U.S. Supreme Court's ruling in Bristol-Myers Squibb v. Superior Court of California, which prompted a mistrial, reversal of a $72 million verdict and a halt to the Missouri trials.

“So far, the story of the talc litigation has mostly been about two things—the science and the choice of forum,” said Howard Erichson, a professor at Fordham University School of Law. The judge who tossed the $417 million verdict “not only overturned a huge verdict but also showed deep skepticism about the science behind plaintiffs' claims. Another big event of 2017 was the Supreme Court's personal jurisdiction ruling in Bristol-Myers Squibb, which makes it harder for mass tort plaintiffs to sue en masse in their preferred forum.”

Bristol-Myers Bouts

Bristol-Myers found that plaintiffs who sued over injuries attributed to blood thinner Plavix had failed to establish specific jurisdiction in California, where they brought their case, because there wasn't enough of a link between their claims and the Golden State. The high court also found that a California distributor, McKesson Corp., didn't have enough connection to the claims.

Most of the talc claims have been brought in Missouri by women who don't live there, and all but one of the jury verdicts has come out of a St. Louis courtroom. But Bristol-Myers prompted St. Louis Judge Rex Burlison to grant Johnson & Johnson's motion for a mistrial in a case involving the families of three women. Then, just as another trial was set to begin in October, the Missouri Supreme Court temporarily ordered a halt, citing Bristol-Myers. Oral arguments on Johnson & Johnson's writ of prohibition are scheduled for Feb. 27.

Johnson & Johnson spokeswoman Carol Goodrich declined to comment.

Ted Meadows, a principal at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Alabama, acknowledged that Bristol-Myers “shook things up.”

“The life of a litigation is such that you have ups and downs,” he said. “We had all ups in 2016. I fully expected there would be challenges at the appellate level and posttrial motion level in 2017. I knew we'd win some and lose some.”

And, in fact, plaintiffs did score a few significant wins. In November, Burlison refused to toss a $110 million verdict that a Missouri jury awarded in May because plaintiffs attorneys, in posttrial motions, had put forth “substantial evidence” of a Missouri talc manufacturer that could overcome Bristol-Myers.

Meadows said he was hopeful that the Missouri Court of Appeals would side with the plaintiffs after Johnson & Johnson appeals that ruling, even though in October the same appeals court cited Bristol-Myers in reversing a $72 million award in the first talcum powder verdict in 2016.

“We've field a motion to reconsider on that and, if we don't get traction there, we plan to appeal that to the Missouri Supreme Court,” he said.

The next Missouri trial is set for June 4.

Science on Trial

Since the first verdict in early 2016, Johnson & Johnson's lawyers have attacked the science behind the plaintiffs' claims. In Missouri, tort reform advocates derided what they called “junk science” in talc cases when pushing to change the state's rules on scientific evidence at trials.

Johnson & Johnson also brought in a new legal team. Proskauer partners Bart Williams and Manuel Cachán scored the first—and only—defense verdict in March. They also handled the first talcum powder trial in California, which ended with the $417 million verdict in August. But they convinced Los Angeles Superior Court Judge Maren Nelson to toss the award.

Nelson's most pointed complaint struck at the heart of the talc cases: The plaintiff, she said, didn't provide enough scientific evidence that Johnson & Johnson's baby powder caused ovarian cancer. In the end, Nelson wrote in her order, “the best that can be said is that there was (and is) an ongoing debate in the scientific and medical community about whether talc more probably than not causes ovarian cancer and thus giving rise to a duty to warn.”

For 2018, Meadows expected success in appeals of both the California ruling and a summary judgment ruling by a New Jersey Superior Court judge in 2016 that threw out two talc cases because of their “made-for-litigation” scientific methods.

And discovery has just begun in multidistrict litigation in federal court in New Jersey, to which many of the Missouri cases are getting transferred following Bristol-Myers. Johnson & Johnson's most recent quarterly report, on Nov. 2, made clear it's far from out of the woods when it comes to talc: “The number of pending product liability lawsuits continues to increase, and the company continues to receive information with respect to potential costs and the anticipated number of cases.”