The Missouri Supreme Court has handed Johnson & Johnson a big win in the New Jersey-based consumer products maker’s fight to get lawsuits brought over its baby powder out of Missouri, where juries, particularly in a St. Louis courthouse, have rendered several multimillion-dollar plaintiffs’ verdicts in the past three years.
The high court’s en banc decision could stymie other talcum powder cases in St. Louis, most of which have included multiple out-of-state plaintiffs that Johnson & Johnson has insisted don’t belong in Missouri. The ruling, which was dated Feb. 13, focused on interpretations of Missouri’s rules and statutes surrounding venue and joinder of claims by multiple plaintiffs into a single case, similar arguments raised in writ petitions that the Missouri Supreme Court took up this year, halting a Jan. 22 trial of 13 women and an April 8 trial of 24 women. Both of those cases, had they gone forward, would have followed the first consolidated talcum powder trial, which ended with a $4.7 billion verdict last year for 22 women.
“We are evaluating the implications of this ruling on other upcoming trials,” wrote plaintiffs attorney Ted Meadows, of Atlanta- and Montgomery, Alabama-based Beasley, Allen, Crow, Methvin, Portis & Miles who is spearheading the talc trials in Missouri. Edward “Chip” Robertson, a partner at Leawood, Kansas-based Bartimus Frickleton Robertson, who argued the case for plaintiff Michael Blaes, did not respond to a call for comment.
Blaes, who alleged his wife died from ovarian cancer after using Johnson & Johnson’s talcum powder products, is a resident of suburban St. Louis County, not the city of St. Louis. However, Blaes’ joined his claims with those of another plaintiff who was a St. Louis city resident. In 2017, his trial was set to begin when the Missouri Supreme Court intervened.
The majority opinion, on a 4-3 vote, ruled that Judge Rex Burlison abused his discretion in allowing Blaes to pursue claims in his St. Louis courtroom, rather than in St. Louis County Circuit Court. The county was the location where his wife was “injured” as defined under Missouri statutes, the ruling held.
“The central issue in this case is whether permissive joinder of separate claims may extend venue to a county when, absent joinder, venue in that county would not otherwise be proper for each claim,” wrote Judge W. Brent Powell, joined by three other panelists. “It cannot and does not. This is evidenced not only by our Court’s rules but also nearly 40 years of this Court’s precedent.”
Johnson & Johnson praised the decision.
“In its ruling, the court held that in a multiple-plaintiff trial, each claim must be properly venued,” spokeswoman Kimberly Montagnino wrote in an emailed statement. “One claim that is properly before a court cannot provide a basis for drawing into a trial other claims that are not. We believe that decision is clearly correct, and we continue to believe that the science doesn’t support plaintiffs’ claims.”
St. Louis-based Thomas Weaver, head of the appellate practice area of Armstrong Teasdale’s litigation department, represented Johnson & Johnson.
A spokeswoman for Imerys Talc America, a talc supplier to Johnson & Johnson and defendant in the case, declined to comment, as did its lawyer, Susan Robertson of The Robertson Law Group in Kansas City, Missouri. On Feb. 13, Imerys Talc America filed for Chapter 11 bankruptcy in Delaware, citing “historic talc-related liabilities.”
Two dissenting opinions chastised the majority’s holding as disregarding last year’s oral arguments in the case and creating a “sudden and unexpected change in the law.”
The Blaes case had a long and complicated procedural background. Blaes, whose wife, Shawn Blaes, died in 2010, originally filed his case in St. Louis County Circuit Court. He dismissed it in 2016 after Johnson & Johnson removed the case to federal court. Blaes refiled his claims in the city of St. Louis soon after a jury there awarded $72 million in the first talcum powder trial, a move that Johnson & Johnson, in court papers, insisted smacked of “blatant forum shopping.”
His claims ended up as part of a case involving 61 plaintiffs, most not from Missouri. Blaes went to trial in 2017, along with the husbands of two other women not from Missouri, but Burlison declared a mistrial after the U.S. Supreme Court’s ruling in Bristol-Myers Squibb v. Superior Court made it harder for plaintiffs to sue in states outside their own.
Bristol-Myers, however, did not prevent Blaes from going to trial in Missouri, so Burlison scheduled a retrial. The judge rejected Johnson & Johnson’s request to move the case to St. Louis County Circuit Court, prompting the writ of prohibition before the Missouri Supreme Court.
The dissents in this month’s en banc opinion latched onto the majority opinion’s failure to address a key case in Johnson & Johnson’s arguments: Judge Paul Wilson’s concurring opinion in the Missouri Supreme Court’s 2017 en banc decision in Barron v. Abbott Laboratories.
The majority’s opinion “essentially becomes an advocate for J&J by reframing its argument in a vastly more favorable light to ensure the outcome it wished to reach,” wrote Judge George Draper, in a footnote to his dissent.
The Abbott appeal involved a $38 million verdict in a case involving a Minnesota woman who alleged her baby was born with birth defects after she took the anti-epileptic drug Depakote while pregnant. The St. Louis trial was about only her claims, even though she joined more than a dozen other non-Missouri plaintiffs in the case.
Abbott challenged the verdict on several grounds, including venue and joinder, which Powell denied in the majority’s opinion. Wilson, backed by two other panelists, had affirmed the majority’s opinion because of Abbott’s “ambiguous” arguments but concluded that the ruling could impose onerous venue requirements on plaintiffs not required under Missouri’s rules.
“Today, the Court announces a second sudden, unexpected, and—in my view—unjustified detour in venue law,” Wilson wrote in his Blaes dissent, which was joined by Judge Zel Fischer. “This is no small change.”