The first trial since the U.S. Supreme Court threatened to wipe out a big chunk of claims over Johnson & Johnson’s baby powder is set to begin this week in St. Louis, Missouri, state court.
Claims of 22 women are set to be tested in the case, the first scheduled to go to trial since the Supreme Court’s 2017 decision in Bristol-Myers Squibb v. Superior Court of California, which made it harder for nonresident litigants to pursue claims in multiplaintiff lawsuits.
It’s also the second case since Bristol-Myers set to go to trial with more than one plaintiff. A trial over claims involving three women, two of whom weren’t from Missouri, who died from ovarian cancer ended in a mistrial in the wake of Bristol-Myers. The Missouri Supreme Court temporarily halted an Oct. 16 retrial involving the claims of the one Missouri resident.
The trial also is the first in the ovarian cancer cases against Johnson & Johnson for W. Mark Lanier, of The Lanier Law Firm in Houston. Most of the 22 plaintiffs, all of whom are Lanier’s clients, are not from Missouri. Others are from Texas, California, New York, New Jersey, Pennsylvania and Georgia. They include a bus driver, a special-education teacher and a cashier at Bed, Bath & Beyond. Six have died from ovarian cancer, and several have spouses with additional claims.
So how to tell all their stories?
“I liken it to speed dating,” Lanier said. “The jury will get to know them. The jury will see them every day. But each one will take the stand, who’s alive, and some by deposition who’ve passed away, and the jury will hear and see them.”
The five previous Missouri verdicts, which have ended in one defense win and four awards ranging from $55 million to $110 million, have involved one plaintiff.
Johnson & Johnson spokeswoman Carol Goodrich wrote in an emailed statement: “Johnson’s baby powder does not contain asbestos or cause ovarian cancer and we will continue to defend the safety of our product.”
Jury selection began on May 31. It’s expected to continue Monday and Tuesday. St. Louis Judge Rex Burlison has indicated he doesn’t plan for the trial to last beyond July 13.
Lanier is trying the case with Lee Cirsch, managing attorney of the firm’s Los Angeles office, and associates Monica Cooper, in Houston, and Rachel Lanier, his daughter, in New York. Joining him are Eric Holland, of the Holland Law Firm in St. Louis, who has been involved in previous talc trials in Missouri. Ted Meadows, of Beasley, Allen, Crow, Methvin, Portis & Miles, and Allen Smith, of The Smith Law Firm in Ridgeland, Mississippi, spearheaded all the previous talc trials in Missouri.
Heading Johnson & Johnson’s trial team are Peter Bicks, Morton Dubin and Lisa Simpson, all New York partners at Orrick, Herrington & Sutcliffe, which has represented the New Jersey-based pharmaceutical firm in related cases alleging its baby powder caused mesothelioma, including the first trial that ended in a defense verdict. They are joined by HeplerBroom’s Beth Bauer in Edwardsville, Illinois, and Thomas Magee in St. Louis, and Mark Hegarty at Shook, Hardy & Bacon in Kansas City, Missouri, all with previous experience in the ovarian cancer cases in Missouri.
The cases allege that a woman’s use of Johnson & Johnson’s talcum powder for many years on a regular basis caused her to get ovarian cancer. Many of the verdicts have come with substantial punitive damages against Johnson & Johnson, which plaintiffs lawyers insist knew for decades about scientific studies demonstrating a link between talc and ovarian cancer.
Bristol-Myers, which was decided last year, tightened the rules on where corporate defendants could be sued. The ruling wiped out many of the talcum powder cases in Missouri state courts, some of which were removed to federal court and transferred to the multidistrict litigation against Johnson & Johnson in New Jersey. It also prompted reversal of a $72 million verdict in Missouri and tossed about 600 claims in California state court.
Lanier acknowledged the ruling’s impact.
“It’ll be an issue on appeal, but we won the matter so far because we’ve proven up jurisdiction,” he said. “Turns out, all our women were exposed to the product where the bottling of the product was done under the oversight of a Missouri company.”
That company, Pharma Tech Industries, is based in Athens, Georgia, but has a plant in Union, Missouri. Plaintiffs lawyers have alleged that Pharma Tech bought the raw talc and bottled it for Johnson & Johnson.
Lanier said he also plans to argue that Johnson & Johnson did marketing in Missouri, with focus groups for their ads in St. Louis, and “lobbied extensively with the politicians here to change the laws to be favorable to them.”
Unlike previous talc trials, Lanier chose to dismiss Imerys Talc America Inc., the talc supplier, from the claims because “we wanted to concentrate on Johnson & Johnson.”
“It streamlines the case, makes it quicker,” he said. “We’ve got a better shot of getting it done within the time limits.”