Missouri $72M Talcum Verdict Reversed on Appeal
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UPDATED: Dec 9, 2017
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Missouri courts have been regularly condemned as “judicial hellholes” because plaintiffs in those courts have had success winning significant verdicts. Demands for reform recently prompted the state legislature to adopt the Daubert standard for expert witness testimony, which they claim will keep “junk science” from influencing juries. What critics rarely mention is that large verdicts are frequently overturned on appeal, protecting businesses from unfair liability when protection is warranted.
A verdict against Johnson & Johnson made headlines when a Missouri jury awarded $72 million to a plaintiff after finding that her lifetime use of Johnson’s Baby Powder caused her cervical cancer. Fewer headlines have reported that the verdict was recently reversed on appeal. The reversal was not based on unfairness in the trial (there is little reason to believe that the verdict would have differed even if the Daubert standard had been applied) but on a determination that the trial should not have been held in Missouri.
State Court Jurisdiction
State courts generally have the power to hear lawsuits against defendants who commit harmful acts in that state. A driver who lives in Florida but causes a car accident while driving in Texas can therefore be sued in a Texas court.
When defendants do not cause harm while physically present in a state, determining whether the court has the power to hear the case is more difficult. States apply their own tests to determine whether they have jurisdiction over an out-of-state defendant, but they must also apply a federal test to decide whether hearing the lawsuit would violate the defendant’s right to due process, which is essentially a right to be treated fairly.
The Missouri Lawsuit
Tiffany Hogans and Marianne Westerman were residents of St. Louis County, Missouri. They sued Johnson & Johnson for manufacturing products (talcum powder and baby powder containing talc) that have been linked to ovarian cancer. Their lawsuit attributed their ovarian cancer to their use of Johnson & Johnson products.
Pursuant to Missouri law, 63 women who resided in other states joined the lawsuit, each alleging that Johnson & Johnson’s products caused their ovarian cancer. Jacquelyn Fox was one of the out-of-state plaintiffs. Rather than trying 65 claims in a single trial, the court decided to begin with a trial of one plaintiff’s claim, no doubt hoping that its outcome would shape a settlement of the other 64 claims.
Jacquelyn Fox’s case was the first to reach a jury, although Fox died a few months before the trial began. Lawyers for her estate satisfied the jury that Johnson & Johnson products caused her ovarian cancer. The jury awarded the estate $10 million in compensatory damages and $62 million in punitive damages.
Well before the trial began, Johnson & Johnson asked the court to dismiss the claims of the out-of-case plaintiffs, arguing that deciding their claims in Missouri would violate Johnson & Johnson’s right to due process. Relying on its interpretation of Supreme Court precedent in effect at that time, the trial court ruled that Johnson & Johnson’s product sales in Missouri established sufficient contact with the state to make Missouri a fair forum to hear the out-of-state cases.
The Missouri Court of Appeals reversed the judgment, concluding that the Missouri trial court did not have jurisdiction over the claims advanced by the out-of-state plaintiffs.
The Court of Appeals based its decision on the U.S. Supreme Court’s 2017 holding in Bristol-Myers Squibb Co. v. Superior Court of California. That case involved 600 plaintiffs who sued Bristol-Myers in California for harm allegedly caused by the drug Plavix. Most of the plaintiffs did not reside in California.
The Supreme Court held that a plaintiff’s extensive contact with a state is not sufficient to give a state court jurisdiction over a defendant when the conduct that allegedly caused the harm to a particular plaintiff did not occur in that state. Rather, there must be a connection between the defendant’s contact with the state and the harm alleged in the lawsuit.
Applying that precedent, the Court of Appeals concluded that Fox’s lawyers presented no evidence that Johnson & Johnson took any action in Missouri that was related to her ovarian cancer. Fox did not buy Johnson & Johnson products in Missouri and there was no evidence that Johnson & Johnson manufactured the products in Missouri that injured Fox.
Fox’s attorneys asked the Court of Appeals to return the case to the trial court so that they could present evidence that Johnson & Johnson subcontracted with a Missouri company to package and distribute its products. The Court of Appeals concluded that Fox should have presented that evidence to the trial court and declined to give her lawyers a second chance to prove that Johnson & Johnson’s actions in Missouri were related to her cancer.
The Future of Talcum Powder Litigation
As a result of the Court of Appeals’ decision, the other out-of-state plaintiffs with pending trials in Missouri might find their cases dismissed. Whether they will be able to refile those cases in their home states is unclear, given the passage of time.
The Court of Appeals’ decision did not address the merits of the verdict. A growing body of evidence suggests that talcum powder and baby powder containing talc can cause ovarian cancer. Cases involving Johnson & Johnson products containing talc resulted in three of the largest verdicts in 2016.
Cases against Johnson & Johnson will continue to be litigated, but they will no longer be consolidated in a single state regardless of where the plaintiffs live. That may result in less efficiency and greater cost to taxpayers, but at least in the opinion of the Supreme Court, that result will be fair to Johnson & Johnson. Fairness to litigants is what appeals are meant to assure, and the Missouri Court of Appeals’ decision in this case allows Johnson & Johnson to avoid the “judicial hellhole” about which businesses have loudly complained.