JEFFERSON CITY, Mo. (Legal Newsline) - Johnson & Johnson has asked the Missouri Supreme Court to reverse a $2.1 billion talc verdict against it, saying lower courts misapplied the law and improperly bundled nearly two dozen plaintiffs from around the country into a single trial despite a U.S. Supreme Court decision prohibiting the practice.
In a filing yesterday with Missouri’s highest court, J&J said that while an appeals court cut in half the original $4.7 billion verdict by a St. Louis jury, it didn’t correct errors by the trial judge that could result in more unfair trials in the future. Among other things, Judge Rex Burlison ruled his court had jurisdiction over lawsuits by out-of-state plaintiffs against J&J because the New Jersey company had briefly distributed talcum powder from a Missouri supplier.
The appeals court upheld jurisdiction for most of the cases and rejected J&J’s argument that putting multiple plaintiffs together into a single trial unfairly prejudiced the jury.
“Left undisturbed, the opinion will set the standard for when mass trials are to be prohibited,” the company said. “The answer appears to be almost never.”
The 2018 trial over J&J’s iconic Johnson’s Baby Powder – since removed from the market – featured a master performance by Houston lawyer Mark Lanier, who used props like a block of cheese and a scientifically implausible diagram showing “asbestos baby powder” pushing a woman at high risk of cancer off of a cliff to convince the jury to award $4.7 billion to 22 women or their family members. The claim was asbestos fibers in the talc caused their ovarian cancer, although J&J maintains there was no asbestos in its products and there is no scientific evidence showing they cause cancer.
Judge Burlison allowed Lanier to bring the out-of-state plaintiffs into his St. Louis court despite a U.S. Supreme Court decision the year before limiting the jurisdiction of state courts over claims against out-of-state defendants arising from actions that also occurred out-of-state. Many of the plaintiffs in the St. Louis trial had no connection with Missouri, yet Judge Burlison asserted jurisdiction because J&J had once licensed the production of a sister product called Shimmer by a Missouri company.
The judge also allowed plaintiff attorneys to make prejudicial arguments such as telling jurors the sole thing the plaintiffs had in common was their use of Baby Powder, J&J said. Given causation was the central issue in the case, the company argued, jurors could be led to believe causation was proved by the mere fact 22 women had cancer and all said they got it from Baby Powder.
Despite widely varying circumstances – one woman had been in remission from cancer for 32 years, and some plaintiffs made claims for loss of consortium or death while others only sought money for their illness – the jury awarded an identical $25 million in each case.
The judge also allowed Lanier to tell the jury the governing “but-for” standard under Missouri law had been “made up” by the defense. This was a key point in the trial, because defense lawyers extracted a concession from a plaintiff expert who couldn’t say the women wouldn’t have gotten cancer if they didn’t use talc.
Defense lawyers raised this in closing arguments, saying the plaintiffs failed to prove their case under Missouri’s but-for standard. But Lanier seized upon the fact “but-for” doesn’t appear in the standard jury instructions to tell jurors it wasn’t the law when in fact it is, J&J said.
The company also argues the punitive damages are excessive under Supreme Court standards limiting them to at most nine times compensatory damages and less when jurors order substantial conventional damages. The appeals court upheld the punitive damages, saying there was ample evidence 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.
The company says it tested its products continuously and never found asbestos. The only experts who have found asbestos in cosmetic talcum powder have been paid by plaintiff lawyers, examining samples from previously opened bottles those lawyers say they purchased on eBay and elsewhere. Johnson & Johnson has argued successfully in some jurisdictions old samples cannot be trusted since asbestos is ubiquitous in the air of most structures and could have contaminated the open containers.
Some of J&J’s complaints were addressed by the Missouri legislature, which last year tightened venue rules to prohibit trials like the one in St. Louis. But J&J still faces hundreds of cases filed before 2019 and worries if the appeals court decision stands, judges could order up more multi-plaintiff trials despite the new law.