A state appeals court has reversed a $55 million talcum powder verdict in Missouri.
The Missouri Court of Appeals decision on June 29 is the third ruling to reverse a jury award against Johnson & Johnson over its baby powder, which thousands of lawsuits have alleged caused women to get ovarian cancer. The ruling largely mirrors an Oct. 17 decision by the Missouri Court of Appeals that reversed a $72 million verdict in light of the U.S. Supreme Court’s holding a year ago in Bristol-Myers Squibb v. Superior Court of California.
A panel of three judges found that plaintiff Gloria Ristesund had “ample opportunity to fully address the issue of personal jurisdiction in the underlying proceedings” and that Bristol-Myers was not a decision that “came out of nowhere.”
“The plain and clear language of BMS refutes Ristesund’s suggestion that the U.S. Supreme Court somehow changed the law of specific personal jurisdiction,” the opinion says. “The parties before us were well aware of the legal principles being argued before the Supreme Court, as evidenced by their pleadings and argument before the trial court. Ristesund was not precluded from broadening the scope of her claims for personal jurisdiction while her case was before the trial court.”
Johnson & Johnson spokeswoman Carol Goodrich said in a statement: “We are extremely pleased the court recognized this trial never should have occurred and vacated the judgment and verdict.”
Thomas Weaver of St. Louis-based Armstrong Teasdale represented Johnson & Johnson in both appeals.
“Johnson & Johnson used a jurisdictional technicality to escape liability for its reprehensible corporate conduct in this case, but the facts and the science behind these verdicts are not going away,” plaintiffs attorney Ted Meadows of Beasley, Allen, Crow, Methvin, Portis & Miles, who represented Ristesund at trial, said in a statement. “We will continue to fight for Ms. Ristesund and other victims, and will do so in courtrooms throughout the country, including Missouri.”
Edward “Chip” Robertson, a partner at Leawood, Kansas-based Bartimus Frickleton Robertson, represented the plaintiffs in both appeals. Ristesund is a South Dakota woman diagnosed with ovarian cancer in 2011 after 40 years of using Johnson & Johnson’s talc products.
The reversal comes as another trial opened in Missouri last month involving 22 women.
Ristesund’s award, which included $50 million in punitive damages, was the second against Johnson & Johnson over its talcum powder products. The first was the $72 million award to the husband of Jacqueline Fox, a woman from Alabama who died of ovarian cancer in 2015.
Johnson & Johnson has since lost verdicts of $70 million and $110 million, both in Missouri, and $417 million in California, although a Los Angeles Superior Court reversed the last award due to insufficient evidence and “serious misconduct” on the part of the jury.
Bristol-Myers has stymied plaintiffs in the talc cases. That ruling limited the venues where out-of-state plaintiffs could sue a corporate defendant by requiring a link between their claims and the venue where they sued.
Ristesund’s trial came out of a case with 64 plaintiffs, only one of whom was from Missouri.
In both appeals, Robertson acknowledged that the verdicts couldn’t stand under Bristol-Myers. But in the Fox appeal, he argued to retain the verdict but remand the case so that plaintiffs attorneys could conduct additional discovery that might support jurisdiction under Bristol-Myers.
In the Ristesund case, Robinson asked the appeals court to set aside the verdict but remand the case for a hearing and “whatever follows.”
“We are not persuaded that Ristesund’s request for a different remedy is cause to diverge from our reasoning and holding in Fox,” the panel wrote. “We find no compelling reason to stray from Fox’s precedential history and to permit ‘whatever follows.’”