Plaintiffs lawyers have asked a Missouri court of appeals to reconsider its reversal of a $72 million talcum powder verdict as more cases are sent to a multidistrict litigation docket in New Jersey federal court.
In a motion for rehearing filed on Tuesday, plaintiffs attorneys insisted they be allowed to argue why their client, the husband of Alabama resident Jacqueline Fox, who died in 2015 from ovarian cancer, still had personal jurisdiction to pursue a lawsuit in Missouri despite the U.S. Supreme Court’s June 19 decision in Bristol-Myers Squibb v. Superior Court of California. They asked for a rehearing or transfer to the Missouri Supreme Court “because of the general interest and importance of the issue of first impression raised here and for the purpose of re-examining the law.”
“This is an unusual case,” plaintiffs attorney Edward “Chip” Robertson of Bartimus Frickleton Robertson in Jefferson City, Missouri, wrote in the motion. “This court still has jurisdiction over this case. It has the power, the authority, and the opportunity to avoid letting its prior acquiescence to Missouri personal jurisdiction become a roadblock to justice.”
The petition is the latest to salvage Bristol-Myers’ impact on the talcum powder cases in Missouri, where the majority of the nearly 5,000 women and their families initially brought claims alleging Johnson & Johnson’s baby powder and Shower to Shower products caused them to get ovarian cancer. Missouri’s joinder rules have allowed dozens of women outside the state to join a local resident’s case, and juries in St. Louis have come out with four verdicts ranging from $55 million to $110 million apiece, including Fox’s award in 2016.
But Bristol-Myers has thrown a wrench in the litigation. The Supreme Court found that plaintiffs who sued over injuries attributed to blood thinner Plavix had failed to establish specific jurisdiction because there wasn’t enough of a link between their claims and California, where they brought their “mass action.”
Bristol-Myers prompted the Missouri Court of Appeals to reverse the verdict in Fox’s case.
“We accept the fact that the U.S. Supreme Court’s Bristol-Myers Squibb ruling changed the jurisdictional requirements 17 months after the Fox verdict,” said lead plaintiffs attorney Ted Meadows of Beasley Allen. “But what we cannot accept are Johnson & Johnson’s attempts to use that ruling to evade justice, and deny the Fox family the opportunity to prove their claim meets the criteria of the BMS ruling.”
Fox’s case involved 65 plaintiffs, only two of whom were from Missouri. In Tuesday’s motion, Robinson noted that the 62 other women in Fox’s case are expected to argue they have personal jurisdiction. It would be unfair, he wrote, to prevent Fox from doing the same—even if it meant tossing the verdict aside for a new trial.
To make his case, he invoked an 1801 Supreme Court case that revolved around captured ships at sea. In United States v. Schooner Peggy, Chief Justice John Marshall found that in cases involving private parties “a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties.”
Bristol-Myers has had additional impacts on the Missouri talc litigation. A St. Louis judge declared a mistrial in a talcum powder case, and the decision surfaced in a case in which the Missouri Supreme Court temporarily halted the trial last month.
Plaintiffs are attempting to pursue discovery into a Missouri talc distributor’s alleged ties to Johnson & Johnson, which is based in New Jersey, in order to establish personal jurisdiction.
Johnson & Johnson, meanwhile, has vowed to appeal the additional Missouri verdicts. And its lawyers also have cited Bristol-Myers in attempting to remove Missouri cases to federal court, where many are in the process of being transferred into the multidistrict litigation before U.S. District Judge Freda Wolfson of the District of New Jersey.
In an Oct. 3 status report, lawyers on both sides reported that 2,688 plaintiffs had pending cases in the MDL. Of those, 1,513 plaintiffs had been in cases removed from Missouri state court (another 466 plaintiffs in Missouri federal court who were awaiting transfer to New Jersey at the time of the status report are now in the MDL).