ST. LOUIS (Legal Newsline) - A Missouri appeals court’s decision upholding what became a $2.2 billion talc verdict against Johnson & Johnson represents a thorough rejection of J&J’s argument it was subjected to an unfair trial process. It’s also a relic of the past.
A lot has changed in Missouri since a St. Louis jury handed down a $4.7 billion verdict – since cut by more than half -- on behalf of 22 women from around the country who said they contracted ovarian cancer from using J&J talcum powder. The most important change was SB7, signed by Gov. Mike Parson last year, which tightened up Missouri’s rules to prohibit the conglomeration of in- and out-of-state plaintiffs into a single trial that Houston attorney Mark Lanier exploited to such great effect in the J&J case.
Also sitting on the governor’s desk is SB 591, which tightens the rules governing punitive damages, which accounted for $4.1 billion of the $4.7 billion total verdict. Under the new law, plaintiffs would have to present clear and convincing evidence J&J intentionally harmed them or “acted with flagrant disregard for the safety of others.”
The appeals court said the St. Louis jury had enough evidence to find J&J “engaged in outrageous conduct because of evil motive or reckless indifference,” citing internal documents suggesting some executives thought talc supplies might be contaminated with asbestos fibers. But that might not be enough under the new “flagrant disregard” standard, since J&J argues it complied with industry requirements and that with the exception of one disputed test by an independent lab, only hired plaintiff experts have found asbestos fibers in its consumer talc.
Johnson & Johnson presented nine arguments in favor of throwing out the massive verdict against it, and the appeals court rejected nearly all of them. Most of the company’s objections stemmed from how Judge Rex Burlison conducted the trial, including allowing Lanier to bundle plaintiffs from a dozen states into a single case before a St. Louis jury. The plaintiffs were of different ages with widely varying preexisting medical conditions and J&J argued jurors didn’t assess each claim independently, since they awarded exactly $25 million in compensatory damages to each.
The appeals court rejected J&J’s claim the cases were improperly joined, even though a subsequent U.S. Supreme Court ruling and a ruling by the Missouri Supreme Court in another talc case before Judge Burlison – since codified by SB7 -- suggest otherwise. The appeals court focused on J&J’s claim the jury couldn’t sort through the “jumble of evidence” Lanier presented them, including a legally permissible but scientifically absurd diagram showing a woman with multiple risk factors for ovarian cancer being pushed off a cliff by “asbestos baby powder.”
In the appeals court’s opinion, it was enough Judge Burlison supplied jury instructions that required more than 140 pages of trial transcript to record. “Any dangers of prejudice,” the court ruled, “were adequately addressed by the trial court’s instructions to the jury to consider each Plaintiff’s claim separately.”
The appeals court did agree that some of the 17 out-of-state plaintiffs had failed to establish the trial court had personal jurisdiction over J&J and its J&J Consumer Companies Inc. unit, which is a legally separate business. The appeals court struck the claims of all 17 out-of-state plaintiffs against J&J, because the parent company lacked sufficient contacts within Missouri. But the court allowed 15 of the 17 out-of-staters to maintain their clams against JJCI, because those plaintiffs said they used Shimmer, a product manufactured under license by a Missouri company.
In so doing, the appeals court avoided wading into questions ultimately answered by the Supreme Court in Bristol-Myers Squibb v. Superior Court and the Missouri Supreme Court over when out-of-state plaintiffs can use a favorable court to sue companies. Under Supreme Court precedent and current Missouri law, Lanier might still get the plaintiffs who claimed they used Shimmer into a Missouri court, but he couldn’t get them all into the courtroom of Judge Burlison, where they benefitted from a string of pro-plaintiff rulings on evidence and procedure.
The law now requires plaintiffs to prove, in effect, that they were injured in the place where they were suing or by a company that is based there. Missouri went a step further and required Missouri plaintiffs to sue in their county of residence or where they were injured, again hindering the ability of plaintiff lawyers to bundle their clients into a single trial before a favorable judge.
The appeals court otherwise defended Burlison’s decisions across the board, including allowing testimony from plaintiff experts like William Longo and Dr. David Egilman, who have been barred by other courts. The appeals court also saw no problem with those experts relying upon talc samples mostly obtained from the plaintiff lawyers, who say they bought them on eBay or found elsewhere.
Johnson & Johnson argued there was no way of knowing whether bottles that in some cases had been open for decades had been contaminated by asbestos from other sources. But the appeals court, whose chief judge, Philip Hess, is a former Workers' Compensation attorney originally appointed by a Democratic governor, said it was satisfied that “Longo concluded none of the samples he analyzed showed any signs of tampering.”
Johnson & Johnson will appeal to the Missouri Supreme Court, saying it is the victim of “a fundamentally flawed trial, grounded in a faulty presentation of the facts.” Having cut the verdict in half through procedural arguments, however, the company now faces the tough task of convincing the state high court that Missouri’s often freewheeling style of tort law is itself unfair.