A Missouri appeals court has vacated a $72 million talcum powder verdict, citing a U.S. Supreme Court decision that could threaten to erase additional verdicts against Johnson & Johnson in the state.
In an Oct. 17 order, Missouri Court of Appeals for the Eastern District found that the Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court required tossing the verdict, which came out in early 2016. It was the first talcum powder verdict against Johnson & Johnson in Missouri and was awarded to the husband of Jacqueline Fox, an Alabama woman who died in 2015 of ovarian cancer after prolonged use of Johnson & Johnson’s baby powder.
After oral arguments on appeal, the panel said it would postpone its decision until the Supreme Court ruled in Bristol-Myers, which it did on June 19. Fox’s attorneys had hoped to remand the case so that they could conduct additional discovery in light of Bristol-Myers, which limited the venues where a corporate defendant can be sued.
The court declined to grant them that the chance.
“To be sure, this court generally possesses the authority to remand cases to the trial court for further evidence and analysis, including on jurisdictional questions or due to changes in the law pending appeal,” wrote Judge Lisa Van Amburg for the panel. “But Fox provides no Missouri precedent illuminating a procedural path for this court to stay a jury verdict pending re-litigation of facts supporting jurisdiction. Simply put, this court declines to remand the case in its advanced posture.”
Johnson & Johnson spokesman Carol Goodrich issued a statement that indicated it would challenge additional verdicts, in which Missouri juries have granted $55 million, $70 million and $110 million to women and their families over talcum powder.
“We’re pleased with the opinion of the Missouri Court of Appeals, Eastern District, and continue to move forward with the appeals process,” she wrote. “In the cases involving nonresident plaintiffs who sued in the state of Missouri, we consistently argued that there was no jurisdiction and we expect the existing verdicts that we are appealing to be reversed.”
Attorney Ted Meadows said the plaintiffs’ team was weighing its appeal options and would “continue to fight for the rights of our clients in whatever venue and whatever jurisdiction may be required.”
“While we must respect this most recent ruling, in our view the retroactive application of the U.S. Supreme Court’s opinion in BMS should have resulted in a return to the trial court for further consideration,” wrote Meadows, principal at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Alabama, referring to Bristol-Myers. “The evidence and science remain on the side of the victims of ovarian cancer, and in time we will prevail.”
Tuesday’s ruling comes days after the Missouri Supreme Court temporarily haltedanother talcum powder trial that was set to begin on Monday. In that case, Johnson & Johnson filed a petition for writ of prohibition, arguing that plaintiffs attorneys had engaged in forum-shopping by bringing the claims of Michael Blaes, the husband of Shawn Blaes, who died in 2010 from ovarian cancer, in St. Louis.
In the Fox appeal, Johnson & Johnson had challenged jurisdiction of her claims, which were in a single case involving 65 plaintiffs, only two of whom were from Missouri. The majority of the nearly 2,000 women who allege they got ovarian cancer from Johnson & Johnson’s talcum powder products have brought claims in Missouri, even though most aren’t from there—a practice that’s permitted under Missouri rules but being questioned in light of Bristol-Myers.
Plaintiffs’ attorneys want to pursue discovery over a Missouri talc distributor’s alleged ties to Johnson & Johnson, which is based in New Jersey, to establish jurisdiction under Bristol-Myers. Rex Burlison, the St. Louis judge overseeing all the Missouri trials, had allowed the discovery after he granted an immediate mistrial in June in a separate case due to Bristol-Myers.
Amanda Bronstad is the ALM staff reporter covering class actions and mass torts nationwide. She is based in Los Angeles.