Boston Scientific Pelvic Mesh Cases Removed From Philadelphia Court of Common Pleas Based on SCOTUS “Plavix” Ruling

Boston Scientific Mass Tort Mesh Cases Removed From Philadelphia Court of Common Pleas Based On Recent Supreme Court  June 2017, Bristol Myers vs. California Superior Court “Plavix” Ruling

 

 

 

 

 

 

Boston Scientific, Marlborough, MA

By Mark A. York (September 7, 2017)

Plaintiffs who filed suit against Boston Scientific in a Philadelphia court over allegedly defective pelvic mesh, have agreed to have their cases removed from the Pennsylvania Court to other venues based on the June 2017 “Bristol-Myers California Plavix” U.S. Supreme Court opinion.  The Plavix ruling has thrown thousands of non-resident drug and medical device state court cases across the country into turmoil, as the non-resident plaintiffs cannot continue their cases in state courts where they do not reside or the defendant companies are not corporate residents.  This was based on the Supreme Court ruling that stated Bristol-Myers R&D and sales activity in the State of California related to it’s Plavix blood thinner, (see Mass Tort Nexus “Plavix” CA State Court Briefcase) was not enough of a corporate presence to subject them to California state court jurisdiction, resulting in jurisdictional issue across the country for plaintiff firms.

Last month, Boston Scientific filed motions asking the court to remove any cases pending against it in the Philadelphia Court of Common Pleas, citing the Supreme Court’s both the “Bristol-Myers Squibb v. Superior Court of California”, see US Supreme Court Strikes Down State Court Jurisdiction and “BNSF Railway v. Tyrrell”, see SCOTUS Limits What State Court A Corporate Defendant Can Be Sued In.

According to one of the lead attorneys, the parties have agreed to litigate the cases in either Massachusetts, where Boston Scientific has its principal place of business, or in Delaware, it’s state of incorporation.

Kline & Specter attorney Shanin Specter said. “An agreement was reached with Boston Scientific to have the cases heard in a courtroom other than the Philadelphia Court of Common Pleas, so the cases can move forward and litigate without the jurisdictional issue creating legal issues. Although Boston Scientific’s motion last month sought to remove 94 cases, Specter said only three cases had been moving forward against Boston Scientific with calls placed to Boston Scientific defense counsel Shook, Hardy & Bacon and attorney Joseph Blum seeking comment have not been returned.

Judge New Asked to Reconsider

Last month, Boston Scientific had filed a motion requesting Philadelphia Court of Common Pleas Judge Arnold New reconsider his March 2015 decision that the state court had jurisdiction over the mesh cases.  New, who is the supervising judge of Philadelphia’s Complex Litigation Center, issued a one-page order saying Boston Scientific’s motion was moot.

As part of the motion, Boston Scientific had sought to have New’s 2015 ruling vacated to allow for additional arguments on the issue, and allowing defense counsel to begin pleading the removal of thousands of other non-resident plaintiff cases currently in in the court’s complex litigation docket.

Ethicon Mesh Motion for Removal

Another major defendant in over one thousand pelvic mesh mass cases , Johnson & Johnson subsidiary Ethicon, has also filed motions recently seeking to have the cases dismissed based the Supreme Court’s recent decisions. Plaintiffs, however, have requested Judge New pend any rulings on these issues, based on the Pennsylvania Superior Court has agreed to consider the matter in a case that is pending before the intermediate court on appeal.

The Supreme Court’s ruling from June 19, 2017 in Bristol-Myers vs. Superior Court of California (see US Supreme Court Denies California State Court Jurisdiction) now seen as the defining game-changing decision, for mass torts in state courts, that has promised to reshape the geography of mass tort litigation across the country. In the ruling, a majority of the Supreme Court determined that plaintiffs suing Bristol-Myers Squibb in California who were not California residents had failed to establish specific jurisdiction over the pharmaceutical giant, since there was no significant link between the claims and Bristol-Myers’ conduct in California. The ruling, according to observers, makes clear that out-of-state plaintiffs can’t sue companies in states where the defendants aren’t considered to be “at home,” or haven’t conducted business directly linked to the claimed injury.

Johnson & Johnson Files For Missouri Removals

Earlier this month, J&J filed a motion in Missouri seeking to dismiss more than 1,300 lawsuits against it over talcum powder, claiming the lawyers had engaged in “blatant forum shopping on a grand scale.” On June 19, 2017 St Louis City Court Judge Rex Burlison declared a mistrial in the fifth talcum powder cancer trial being heard there, which was the afternoon of the SCOTUS “Plavix” ruling, declaring that the opinion earlier that day prevented the trial from moving forward. The trial was reset for October 2017, and the parties are currently arguing the jurisdictional issues of resuming the trial in front of Judge Burlison, see Mistrial Declared in J&J Talc Trial Due to SCOTUS Ruling.

Boston Scientific Argument

In requesting reconsideration regarding the recent Supreme Court decisions, Boston Scientific contends that Pennsylvania state courts no longer have jurisdiction over it. Specifically, the motion said Boston Scientific is a Delaware corporation with its principal place of business in Massachusetts, it does not have sufficient ties to Pennsylvania to render it “at home” in the state, and the plaintiffs are not Pennsylvania residents. The company further says that finding Pennsylvania has jurisdiction simply because the company complies with the state’s business registration statute violates the due process clause of the U.S. Constitution and the now precedent “California Plavix” decision, .

“It is undisputed that Boston Scientific’s principal place of business is Massachusetts while its place of incorporation is Delaware,” the motion said. “Those are the only two jurisdictions where Boston Scientific is so heavily engaged in activity as to render it ‘at home.”

State Court Removal and Refiling Across The Country

The Philadelphia Court of Common Please Complex Litigation Docket appears to be preparing for a departure of many of the thousands of product liability cases, which prior to June 19, 2017 were moving along quite well in the under the direction of Judge Arnold New. State court dockets across the country are now forced to consider the removal of many cases as well as the potential refiling of thousands of cases in the state of incorporation for the medical device and pharmaceutical manufacturers.

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Does Using Talcum Powder Cause Ovarian Cancer?

Does Johnson & Johnson talcum powder cause ovarian cancer?

(Mass Tort Nexus, August 28, 2017)  Johnson & Johnson has been ordered to pay nearly $1 billion in total damages after just 5 trials, alleging its baby powder is causing ovarian cancer, all jury verdicts have been in state courts in Missouri and California, see J&J Talc Trials St. Louis Missouri.

 

 

 

 

 

 

A Los Angeles jury said yes, and last week it ordered Johnson & Johnson (J&J) to pay $417 million to 63-year-old Eva Echeverria, She blamed her terminal illness on Johnson’s Baby Powder, which she used for decades starting at age 11. Her argument was, the company should have warned consumers about the risk, which J&J stated was not necessary and the jury chose to believe Ms. Echeverria and her trial team.

The jury award is the biggest yet against J&J, which has lost 5 of 6 trials involving claims that its baby powder and Shower to Shower powder cause ovarian cancer. The company denies there’s a connection between its products and the disease and quickly said it would appeal the Los Angeles verdict. Lawsuits involving thousands more plaintiffs are pending, see Johnson & Johnson Talc MDL 2738 Briefcase.

Medical industry and cancer research experts divide sharply on talc’s role. Some are convinced the powder is linked to an increased risk of ovarian cancer, while other  including government health experts, say the evidence is lacking.

Amanda Fader, a gynecologic oncologist at Johns Hopkins University who was not involved in the studies states “The scientific body of literature is not compelling at this time to support a strong association between talcum powder and ovarian cancer, let alone to say that any one specific case was associated with powder,” and The American Cancer Society says that studies on talcum powder and ovarian cancer “have been mixed, with some studies reporting a slightly increased risk and some reporting no increase.

Yet Fader and others aren’t ruling out that a link might someday be established. The Food and Drug Administration, which says it has found no link, is doing additional research on the topic. Although, J&J has spent millions of dollars lobbying and influencing all areas of FDA and related public oversight and commentary to prevent and type of link between cancer and talcum powder products from being abbounced, even while competitor talc products sold at Wal-Mart and Dollar Tree post warning labels declaring a possible link.

Talc, a mineral composed of magnesium, silicon, oxygen and hydrogen, is used extensively in cosmetics and personal care products. Women sometimes use talcum powder on their genital areas, sanitary napkins or diaphragms to absorb moisture and odor – contrary to the guidance of most physicians. (Asbestos, linked to lung cancer, was once an impurity in talc, but it has been banned for several decades.)  J&J is notorious for using any means possible to influence scientific data and opinion as well as manipulating research reports and public media commentary by industry experts. The recent California trial showed payments made to previously perceived impartial Science Council members, who were declaring publicly that J&J talcum powder does not pose a cancer risk, the Los Angeles jury did not agree with J&J and other pro-talc defense team members, as over $300 million of the total $417 million judgment was for punitive damages, usually awarded for intentional misconduct, see“New Evidence of Johnson & Johnson Bad Conduct Moved LA Jury to Award $417 Million Talc Verdict”.

Many pediatricians also discourage the use of such powder on babies because the particles can cause breathing problems, according to Jennifer Lowry, a pediatrician and environmental health expert at Children’s Mercy Hospital in Kansas City.

More than 22,000 women in the United States will be diagnosed with ovarian cancer this year, and 14,000 will die. The biggest risk factors, all well established, include a family history of breast or ovarian cancer, mutations in the BRCA genes and age.

The debate over talc began decades ago. In the early 1970s, scientists discovered talc particles in ovarian tumors. In 1982, Harvard researcher Daniel Cramer reported a link between talcum powder and ovarian cancer. His study was followed by several more finding an increased risk of ovarian cancer among regular users of talcum powder. Cramer, who at one point advised J&J to put a warning on its products, has become a frequent expert witness for women suing the company. J&J ignored and suppressed Mr. Cramer’s attempts to show them the study data then publicly declared this research as flawed, which J&J still continues to this day.

His studies and the many others that have found a relationship used a case-control approach. A group of women diagnosed with ovarian cancer and a group without it were asked to recall their past diet and activities, and the results were then compared.

Critics say these kinds of studies have serious drawbacks, particularly “recall bias.” Women may forget what they did or, if diagnosed with cancer, might inadvertently overestimate their use of a suspect substance. People without a serious disease may be less motivated to remember details.

Three other studies – considered cohort studies – did not find any overall link. Unlike the case-control studies, these efforts began with a large group of women who did not have cancer and followed the progress of their health, with participants recording what they were doing in real time. The results of this approach, most scientists say, are stronger because they aren’t subject to the vagaries of memory.

One such study included more than 61,000 women followed for 12 years as part of the National Institutes of Health’s well-respectedWomen’s Health Initiative.

But critics, including Cramer, say these investigations have their own flaws. Because ovarian cancer is so rare, they say, prospective studies don’t always end up with enough cancer cases to detect a potential link between talcum powder and the disease.

And evidence can change as new research becomes available. That explains why the NCI, which uses expert “editorial boards” to vet the voluminous information it puts out for doctors and consumers, has amended its language on talc.

In February 2014, one editorial board reviewed an analysis of several case-control studies that found genital-powder use was associated with a “modest increased risk” of ovarian cancer. The board decided to add the article to the NCI website and noted a weak association between talc and ovarian cancer. It also added a link to the website of the International Agency for Research on Cancer, a World Health Organization agency that had concluded years ago that talcum powder was “possibly carcinogenic,” when used in the genital area.

But a year later, the same board scrutinized the Women’s Health Initiative study and took another look at previous studies. That’s when it changed the wording on the NCI’s site to say the “weight of evidence” did not support a link. The board also removed the IARC information. This all occurred after Johnson & Johnson used lobbying pressure and alleged payments to various affiliated entities to influence the NCI change of formal opinion

The FDA has wrestled with the issue, too. In 2014, it denied a citizens’ petition asking the agency to require a warning label on talcum powder; its review of the scientific literature found no link between the product and cancer, officials said.

But because the agency continues to get “adverse event reports” involving talcum powder, it is taking another look at the evidence and launching its own laboratory research. The summary for one study, funded by the FDA’s Office of Women’s Health, says that “talc’s effects on female genital system tissues have not been adequately investigated.”

In a statement after the Los Angeles verdict, J&J said that “we deeply sympathize with the women and families impacted by this disease.” But, it added, the science “supports the safety of Johnson’s Baby Powder.”

No matter what side they are on, scientists agree that more research – through lab studies with animals or human tissue – is needed to understand how talcum powder could potentially cause cancer. One hypothesis is that talc applied to the genital area can migrate up the vagina to the ovaries, causing chronic inflammation that eventually results in malignancies. But that is only a hypothesis.

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“New Evidence of Johnson & Johnson Bad Conduct Moved LA Jury to Award $417 Million Talc Verdict”

Johnson & Johnson Still Influencing Opinion by Paying Cash to Insiders in Talc Cancer Fight

New Evidence of J&J Bad Conduct Moved LA Jury to Award $417 Million Talc Verdict”

 

 

 

 

 

 

 

 

Why did California jurors enter a verdict in favor of a cancer stricken plaintiff last week for $417 million in the latest trial over Johnson & Johnson’s (J&J) talcum powder and links to ovarian cancer?(see J&J Loses Another Talc Cancer Trial) It seems as if the largest talc cancer trial verdict to date, may have been influenced by new evidence, including an emailed photo that arrived at the start of trial, apparent payments to science industry insiders and a key J&J witness who was sanctioned and discredited for false testimony at a trial in North Carolina, according to one of plaintiffs’ counsel in the case.

The jury, in front of Judge Maren Nelson, Los Angeles Superior Court, (Eva Echeverria vs. Johnson & Johnson, Case No. BC628228), awarded Ms. Echeverria $70 million in non-economic damages and $347 million in punitive damages after finding that Johnson & Johnson failed to warn that its baby powder could cause ovarian cancer. Eva Echeverria was diagnosed with ovarian cancer in 2007, and was unable to testify at trial due to her illness.

Thousands of women have brought lawsuits making similar claims, most of which are in California, Missouri and New Jersey. Plaintiffs’ attorney Allen Smith, of The Smith Law Firm, who has tried all six of the previous trials, five of which were in Missouri. A seventh Missouri trial never went to a jury after the judge granted a mistrial, (see J&J Talc Trial Mistrial Declared After SCOTUS Ruling,)  on the day of the California-Plavix state court jurisdictional opinion. The juries hearing cases linking talcum powder to cancer have awarded four prior plaintiffs’ verdicts, totaling over $300 million, with the highest previous verdict being $110 million and all were awarded in Missouri state courts.

Introduction Of Damaging Evidence Against J&J:

Competitor Warning Labels

The California jury award was tied to three new pieces of evidence that other jurors hadn’t heard before, including evidence that baby powder products made by other companies sold at Walmart and Dollar Tree had warnings on the bottles showing the risks of ovarian cancer. Plaintiffs’ lawyers found out about the labels after a client of Ted Meadows, a partner at Beasley, Allen, et al, in Montgomery, AL, one of the trial attorneys, emailed a photo of a product with a warning label to them just before the Los Angeles trial began. “That was very welcome news to us,” Meadows said. “And the way it played out during the trial, I think it was news to J&J.”

Payments To Industry Insiders

Introduction of evidence that two individuals involved in the Cosmetic Industry Review (CIR), which has deemed talcum powder to be safe, which is data J&J has relied on in prior trials, had received payments from Johnson & Johnson for speeches and other engagements. This damaging information was discovered while cross-examining the group’s former director, Alan Andersen, who was a defense witness, and he was forced to disclose the prior unknown financial relationship of the CIR and Johnson & Johnson.

Bad Science

A major blow to J&J’s defense came when a defense witness, Senior Johnson & Johnson epidemiologist, Dr. Douglas Weed, was revealed to have been sanctioned for perjury in another trial in North Carolina, for lying under oath about whether he retained notes to his expert report, which plaintiffs attorneys were able to show.

“J&J presented these unbelievable and non-credible witnesses on an issue that is very important to our case,” Smith said. “Attempts to influence witnesses and alter facts, along with the fact other companies are warning of the cancer link and have been warning for eight to 12 months now. This was new evidence that proved very compelling to the jury as well as a reflection of J&J’s willingness to manipulate the trial process in their favor”, leading many to wonder what else J&J may have done.

In a post trial statement J&J declined to address the specifics of the case, stating: “We will appeal today’s verdict because we are guided by the science, which supports the safety of Johnson’s baby powder. In April, the National Cancer Institute’s Physician Data Query Editorial Board wrote, ‘The weight of evidence does not support an association between perineal talc exposure and an increased risk of ovarian cancer.’ We are preparing for additional trials in the U.S. and we will continue to defend the safety of Johnson’s baby powder.”

In response, the Plaintiff team stated “The new evidence that came into the California case could play a role in the next talcum powder trial, which is set for Oct. 16 in Missouri, we certainly think it is evidence that should be presented, and we’ll make every attempt to do so,” Ted Meadows said.

Johnson & Johnson Has Thousands More Talc Trials Waiting

J&J faces thousands more federal lawsuits in the recently consolidated MDL 2738, In Re: Johnson & Johnson Talcum Powder Products Liability Litigation supervised by US District Judge Freda L. Wolfson in the US District Court of New Jersey, in addition, there are the ever growing number of state court cases pending in Pennsylvania, New Jersey and Delaware as well as the remaining thousands of cases in the California State Court consolidation, which are captioned Johnson & Johnson Talcum Powder, Case No. JCCP4872.

Evidence of Johnson & Johnson and misconduct both inside and outside the courtroom can do nothing to further prove their continued claims of “no connection between ovarian cancer and use of J&J talcum powder products”, except provide juries with information which will continue to cause massive plaintiff verdicts to be entered across the country as more damaging evidence against J&J comes to light and is introduced at trials.

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Johnson & Johnson Loses Again In First California Talc-Cancer Trial As Jury Awards Plaintiff $417 million

J&J’s Loses Again In First California Talc-Cancer Trial As Jury Award Plaintiffs $417 million

  • Los Angeles jurors decide Johnson & Johnson failed to warn about risks
  • The Eva Echeverria trial is first of 300 cases in California alleging ovarian cancer

“Eva Echeverria v. Johnson & Johnson, number BC628228, in the Superior Court of California for Los Angeles County”

Johnson & Johnson (J&J) found out earlier today, August 21, 2017 that California is no friendlier than Missouri when fighting allegations that its talc powder causes ovarian cancer in women, as a Los Angeles Superior Court awards plaintiff Eva Echeverria $417 million after 3 days of deliberations.

J&J has lost four out of five recent talc cases that went to trial in St. Louis, and is the first trial before a jury in Los Angeles, and is the first case to go to a state-court jury outside Missouri and one of more than 300 similar cases pending in California. This trial follows the US Supreme Court ruling in June 2017 that made it harder for mass tort lawyers to try cases in St. Louis and other cities that have been a destination of choice for litigation against companies that do business nationwide.

The jury verdict shows that J&J is liable for failing to warn Eva Echeverria, 62, about the alleged cancer risks of using its talcum products, which she started using when was 11. She was diagnosed with ovarian cancer in 2007. The Monday morning verdict followed last Wednesday’s closing arguments, with the California jury deliberations coinciding with J&J’s jury trial in the Xarelto blood thinner Mississippi federal trial, which resulted in a defense verdict for J&J on August 18, 2017.  J&J was hoping the Mississippi Xarelto jury verdict was a precursor to the California Talc verdict, which it was not. Ms. Echeverria’s case was chosen as the first bellwether trial due to the onset of final stage ovarian cancer and her failing health, with doubts in some circles that she may not have survived until the trial start.

There are more than 4,800  Talc claims in federal and state U.S. courts accusing J&J, the world’s largest health-care company, of ignoring studies linking its baby powder and Shower to Shower talc products to ovarian cancer and failing to warn customers about the risk, with cases pending in Missouri, New Jersey and California.

In June, the Missouri judge halted the Talc trial there mid-trial in St. Louis, following a U.S. Supreme Court decision, earlier in the day limiting out-of-state plaintiffs joining lawsuits in state court, in the Bristol-Myers (Plavix) state court jurisdictional ruling, Bristol Myers California Plavix Ruling.  Up to then, J&J had been hit with verdicts as high as $110 million by Missouri juries, a favored location for Talc litigation, totaling more than $300 million and J&J, a New Brunswick, New Jersey-based company is appealing these verdicts.

J&J claims the plaintiffs’ allegations aren’t supported by scientific evidence, pointing to a New Jersey state court decision last year tossing out two cases set for trial, due to lack of expert witness supporting evidence.  That judge found evidence linking talc to ovarian cancer was inadequate, however, J&J just happens to be a New jersey based corporation.

The case is Eva Echeverria v. Johnson & Johnson, BC628228, Los Angeles County Superior Court.

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J&J Talcum Powder Cancer Trial Update: California State Court Jury Hears from Plaintiff Eva Echeverria’s Epidemiology Expert

“Plaintiff Eva Evecherria’s Case Selected For First Trial Due to Onset of End Stage Terminal Ovarian Cancer”

Is Johnson & Johnson Baby Powder Dangerous?

Plaintiff Eva Echeverria, whose case was selected for California’s bellwether trial, due to her declining health caused by ovarian cancer, continued to present evidence last week in Los Angeles Superior Court. (see Eva Echeverria vs J&J Talc Trial CA State Court ), and there are additional cases against J&J in Johnson & Johnson Talcum Powder Cases, No. JCCP4872.

On Friday, jurors heard from a Canadian epidemiology expert who was called to offer his opinions on studies linking talc-based powders to ovarian cancer.

Among other things, Jack Siemiatycki, an epidemiologist with the University of Montreal and McGill University, discussed his contributions to the International Agency for Research on Cancer’s 2006 monograph that deemed talc a possible human carcinogen. According to Law360.com, he also testified that his stance has changed since then, as he now thinks that it is more likely than not that talc can cause ovarian cancer.

Under cross examination, Siemiatycki acknowledged that he had not reviewed the plaintiff’s specific case, as his testimony was only intended to address the general link between use of talcum powder and ovarian cancer .

Johnson & Johnson Concerns Are Corporate Image Over Human Life

The talcum powder lawsuit selected for the California trial was filed on behalf of Ms. Echeverria, a 63-year-old woman who allegedly made Johnson & Johnson’s talc-based powders a regular part of her daily feminine hygiene routine in the decades prior to her ovarian cancer diagnosis. Like other plaintiffs around the country, she claims that tiny particles of talc entered her vagina and migrated to her ovaries, resulting in the type of inflammation that encourages the growth of ovarian cancer cells.

During opening statements earlier in the week, Escheverria’s attorney asserted that Johnson & Johnson had known of the alleged link between talc and ovarian cancer for decades, but decided to withhold warnings from the public to protect its image.

“It’s the safe and gentle corporate image of a mother and baby that the defendants are placing over human life, in this case,” he told the jury.

Delaware State Court Plaintiffs Request Coordination

10 plaintiffs who filed talcum powder lawsuits in Delaware Superior Court are seeing coordination of all ovarian cancer cases involving Johnson & Johnson products. In addition to Johnson & Johnson, Imerys Talc America Inc., and the Personal Care Products Council are named as defendants.

Talcum Powder Ovarian Cancer Cases Filed in Canada

In May 2016, a class action lawsuit was filed in Toronto, Ontario on behalf of Canadian women who allegedly developed ovarian cancer due to their long-term use of Johnson & Johnson’s baby powder for feminine hygiene. Plaintiffs assert that the company should have warned consumers decades ago about the alleged link between talc powder and ovarian cancer, and that doing so would have easily prevented many, many cases of the disease.

Missouri Talcum Powder Plaintiff Verdicts

Johnson & Johnson has been named a defendant in more than 3,000 talcum powder claims in state and federal courts throughout the country. In addition to California, similar litigation is currently underway in Missouri, New Jersey and Delaware state courts, as well as New Jersey Federal Court.

The Missouri litigation, has already resulted in 6 talcum powder trials, with plaintiffs winning 4, one defense verdict and the most recent June 2017 trial declared a mistrial due to a US Supreme Court ruling. The first concluded in February 2016, when the family of an Alabama woman who died of the disease was awarded $72 million ($10 million compensatory and $62 million punitive).

Three months later, Johnson & Johnson was ordered to pay $55 million ($5 million compensatory, $50 million punitive) to a South Dakota ovarian cancer victim.

The following October, another Missouri jury awarded $70 million, including $2.5 million in compensatory damages and $67.5 million in punitive damages, to a third plaintiff.

Missouri’s fourth talcum powder trial concluded in March 2017, with a win for Johnson & Johnson. In May, however, the company was hit with its largest talcum powder verdict thus far, when another Missouri jury awarded more than $100 million in compensatory and punitive damages to the plaintiff in the state’s fifth trial. The final trial in June, where Shawn Blaes and other non-Missouri plaintiffs were in mid-trial when Judge Burlison declared a mistrial just hours after the US Supreme Court ruled on the state versus federal court jurisdictional issue in Bristol-Myers vs. California Supreme Court.

How will the Bristol-Myers “California-Plavix” Ruling Affect Missouri and Other State Court J&J Talcum Powder Cases?

On June 19, 2017 in the most recent St. Louis courtroom trial, Estate of Shawn Blaes, et al vs. Johnson & Johnson Case No. 1422-CC09326-01, over Johnson & Johnson’s talcum powder, trial counsel received notice of a US Supreme Court decision that day and were changing trial strategy instantly, and scrambling to determine if the Supreme Court decision handed down that morning doomed their case. The ruling was from a California multi-plaintiff drug case, Bristol Myers-Plavix Litigation JCCP Case No. 4748 (San Francisco County Superior Court) where Bristol-Myers had appealed the August 29, 2016 California Supreme Court decision, where the California court ruled that “foreign resident plaintiffs were able to remain parties to the Plavix litigation in California State Court” see California Court Opinion Jurisdiction of Non-Resident Plavix Plaintiffs 8.29.2016. Bristol-Myers immediately appealed to the US Supreme Court, where appeal arguments were heard on April 24, 2017, see BMSQ California Plavix SCOTUS Appeal Transcript , which left non-resident plaintiffs in state court cases across the country in limbo, pending the ruling.  On June 19th the US Supreme Court in an 8-1 ruling clarified the non-resident question for many plaintiffs, including the three plaintiffs in the pending trial in front of Judge Rex Burlison, who immediately declared a mistrial. The Blaes trial has been reset for October 2017, pending motions and briefings regarding the Plavix ruling and how it applies to the trial.

There are already dismissals in federal and state court cases of non-resident plaintiffs in non-talc lawsuits, so what will the “California-Plavix” ruling do to the thousands of other talc cases pending across the country? That question remains to be answered.

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Is Industrial Talc Litigation The Next Major Mass Tort?

Will Industrial Talc Litigation Become Another Asbestos?

 

 

 

 

 

 

 

Is Industrial Talc the next “major mass tort or MDL” to watch, now that talc litigation is  becoming more common in Mass Torts? Major verdicts against cosmetic talc defendants, including Johnson & Johnson (“J & J”), suggest that talc litigation, at a minimum, is a potential major threat to talc defendants other than J&J, extending into more general product manufacturing sectors including the “personal care product” industry, see J&J MDL 2738 Mass Tort Nexus Briefcase.  In 2016, J & J and other defendants suffered three large verdicts for exposure to its baby powder in St. Louis, Mo.: $72 million, $70 million and $55 million. All three verdicts, in a jurisdiction considered favorable to asbestos plaintiffs, included substantial punitive damages, see J&J Talc Cases In St Louis, MO State Court.

The plaintiffs in each of these cases alleged that exposure to talc contained in J&J’s baby powder caused them to contract ovarian cancer. Also in 2016, a Los Angeles jury awarded $18M to a plaintiff who sued a cosmetic talc defendant alleging exposure to cosmetic talc caused the plaintiff to contract mesothelioma.

There is a current ovarian cancer claim trial against J&J in Los Angeles Superior, Judge Maren Nelson that started July 10, 2017, see J&J Faces First CA Talc Cancer Trial in Los Angeles Court, where plaintiff Eva Echeverria claims that J&J baby powders caused her ovarian cancer, in the consolidated J&J Talc Litigation JCCP No. 4872 (Eva Echeverria v. Johnson & Johnson, Case No. BC628228).

Assuming talc litigation is not going away any time soon, several questions are raised. Are all talc claims the same? What is the relationship between talc and asbestos, if any? What defendants are at risk in the talc litigation? What are the insurance implications of talc claims, and are they alike or different from asbestos and other long-tail coverage claims?

Talc History

There are two types of talc: industrial talc which is used most frequently in rubber, plastics and ceramics; and cosmetic talc which is of a higher grade and is used in conjunction with products that involve direct human exposures such as cosmetics, pharmaceuticals and food additives.

Talc manufacturers and companies that have incorporated talc into their products have been, and continue to be, sued. Industrial talc defendants have been involved in litigation for decades. In lawsuits involving industrial talc, plaintiffs generally allege that the talc is contaminated with asbestos. The injuries alleged are mesothelioma, lung cancer and asbestosis. To date, there have been no claims against industrial talc defendants alleging that asbestos in the talc caused ovarian cancer. Industrial talc defendants have aggressively defended the cases and, although suffering some adverse verdicts, they won more cases than they have lost. However, will thousands of new industrial talc claims result in acceptance of litigation and pressure to settle as a suddenly arising “cost of doing business’, such as the view taken by pharmaceutical and medical device manufacturers who incorporate “litigation costs” into corporate filings and simply classify it as an expense of doing business?

Cosmetic talc cases fall into two distinct categories: 1) cosmetic talc alleged to cause ovarian cancer; and 2) cosmetic talc alleged to cause mesothelioma. The J & J verdicts were ovarian cancer cases. There was no claim that the talc was contaminated with asbestos.

While the J & J St. Louis verdicts received significant attention in the national media, cases alleging that asbestos-containing cosmetic talc caused an asbestos-related disease such mesothelioma have been percolating, and some recent notable verdicts have been obtained. In 2015, a Los Angeles jury awarded $13M to a woman who alleged talcum powder sold by Colgate-Palmolive was contaminated with asbestos causing her to contract mesothelioma.  These cases, if they emerge as viable litigation, could make cosmetic talc defendants targets by substituting them for insolvent asbestos defendants and anyone else who may be named, which would present an extreme and unforeseen threat to cosmetic talc defendants and affiliated industry.

Cosmetic Talc Litigation – Ovarian Cancer

Cases alleging injury from cosmetic talc are relatively new, as best exemplified by the recent high-profile J & J verdicts. These cases did not depend on asbestos contamination, nor did they allege mesothelioma. Instead, they alleged that talc itself causes ovarian cancer. The ovarian cancer talc cases indeed represent an entirely new class of toxic product liability litigation. The approximately 14,000 ovarian cancer deaths a year, in conjunction with the widespread use of talc in everyday products such as baby powder, renders these cases a serious threat to certain defendants and their insurers.
According to the National Institute of Health, there are 22,280 new ovarian cancer diagnoses each year in the U.S. and 14,240 women die of the disease every year. This is seven times the number of annual mesothelioma diagnoses.

The American Cancer Society estimates that there are only 3,000 new mesothelioma diagnoses a year,  with mesothelioma lawsuit filings being stable and not increasing. Like any other business, plaintiffs’ firms are always looking to maintain and grow revenue. Litigation against cosmetic talc defendants alleging ovarian cancer offers a way to substantially increase their bottom line. Indeed, “do you have ovarian cancer?” and “did you use talcum powder?” ads are commonplace on television.

Because everyone can credibly claim exposure to cosmetic talc, the primary issue that will be litigated is the science underlying the causal connection between talc exposure and ovarian cancer. While plaintiffs prevailed in the St. Louis actions, Imerys Talc and J & J persuaded a New Jersey trial court in 2016 to dismiss with prejudice two ovarian cancer cases after granting their motions to bar expert testimony due to inadequate science supporting their opinions. Apparently pressing their advantage, the defendants persuaded the federal talc MDL in New Jersey to conduct a “science day” in which the litigants would attempt to generally demonstrate that cosmetic talc does or does not cause ovarian cancer. The plaintiffs’ bar quickly responded with their own proposed “science day” in California state court, presumably where they perceive a jurisdictional advantage. The “science” of whether cosmetic talc causes ovarian cancer will be the field of battle on which the sustainability of these claims will live or die.

The sustainability of ovarian cancer talc cases will depend on how the courts resolve the science questions surrounding causation. This will depend in large part on the plaintiffs’ bar’s ability to persuade courts outside jurisdictions traditionally favorable to asbestos claimants of the merit of their claims.

Cosmetic Talc Cases Alleging Asbestos-Contamination

In addition to the emergence of ovarian cancer cases, cosmetic talc defendants are also at risk of becoming responsible for mesothelioma cases alleging that their products were contaminated with asbestos. If plaintiffs can meet their burden of proving asbestos contamination in their products, the issue of product identification will largely be moot due to the ubiquitous use of talc in everyday products to which any plaintiff can presumably credibly claim exposure.

Allegations of asbestos contamination in talc have a long and disputed history. The FDA launched an investigation in 2010 based on reports that talc from South Korea and China contained asbestos. After extensive testing of various U.S. consumer products, the FDA found no asbestos contamination in the products. However, it described its results as inconclusive and only “informative” because it was unable to secure samples from all of the common talc suppliers.

The issue of whether cosmetic talc is contaminated by asbestos is disputed by the plaintiffs’ bar. The cosmetic talc defendants present an attractive target, especially given the declining pool of solvent asbestos defendants. In addition, while mesothelioma case filings have been relatively flat, the expected decline of mesothelioma claims has failed to emerge.

If mesothelioma cases do trend upward, plaintiffs’ lawyers will have additional incentive to identify new solvent defendants to satisfy the potential liabilities. Cosmetic talc defendants, generally not burdened by years of asbestos liabilities, make attractive defendants. In addition, because the traditional asbestos defendants that used and sold asbestos products have gone bankrupt, plaintiffs’ lawyers have increasingly struggled to demonstrate proximate cause against individual defendants and have been forced to make ever-more tenuous arguments that even de minimus exposures to asbestos caused their clients’ mesothelioma. The widespread use of cosmetic talc overcomes most traditional product identification, proximate cause defenses. Instead, the principal issue becomes only whether a particular product was contaminated with asbestos.
The plaintiffs’ bar will attempt to meet its burden of demonstrating asbestos contamination in cosmetic talc by arguing that traditional testing methods are not precise enough to detect it at low levels and that there is no safe level of asbestos exposure. In previous cases, plaintiffs have employed experts to challenge defendants that maintained talc samples. As these cases are being litigated in the same jurisdictions that handle most asbestos cases, these allegations will  be difficult for defendants to rebut.

Notable Cosmetic Talc/Asbestos Contamination Verdicts

Two recent verdicts for asbestos contamination demonstrate the risk to cosmetic talc defendants. In October 2016, a Los Angeles County jury awarded $18M to Philip Depolian against Whittaker, Clark & Daniels finding it 30% responsible for his mesothelioma due to his alleged exposure to various cosmetic talc products used at his father’s barbershops that contained asbestos. The jury apportioned liability against various cosmetic talc defendants that had settled and several other cosmetic talc product defendants that sold products including Old Spice, Clubman, Kings Men and Mennen Shave Talc.

In 2015, another Los Angeles jury awarded Judith Winkel $13M against Colgate-Palmolive for mesothelioma allegedly caused by exposure to talc in its baby powder. The jury rejected Colgate and its experts’ claims that the cosmetic talc at issue was not contaminated by asbestos and that the talc in question were non-fibrous “cleavage fragments” unlikely to be inhaled or embedded in the lungs. Although details of the trial are not readily verified, at least one report indicated that evidence presented at trial showed that the talc contained 20% asbestos fibers.

These cases are particularly important because the defendants were held responsible for cosmetic talc containing asbestos and for having caused mesothelioma and not ovarian cancer as in the J & J cases. Further, both juries found that the defendants acted with malice. However, the cases were confidentially settled before the respective punitive damage phases.

Who’s Liable if Industrial Talc Litigation Explodes

While the ovarian cancer cases have dominated the headlines, the cosmetic talc asbestos contamination cases may present the bigger risk to defendants and a much greater reward to plaintiff counsel. Thousands of companies used cosmetic talc in their products over the last hundred years. The entire population could claim exposure, especially to defendants that sold personal care products that could be ingested, inhaled or exposed via air-borne contact. The risk is that the cosmetic talc defendants become the defendant of last resort when a plaintiff has no other convincing credible sources of exposure to asbestos, especially when the original product source is now a bankrupt entity.

Science of Cosmetic Talc Claims: While it may be difficult to challenge long-established trigger approaches if a talc claim involves a claim of asbestos contamination, ovarian cancer talc claims may require a new look at trigger issues because the underlying science of how talc exposure may cause ovarian cancer is different from how asbestos inhalation damages the respiratory system. Having learned from previous trigger battles in asbestos, the insurers are likely to challenge the science that the first exposure to cosmetic talc causes injury that can be associated with the development of ovarian cancer and characterized as “bodily injury” as required in their policies. They may seek out scientific opinion that ovarian cancer caused by cosmetic talc is not progressive in nature, and thus not warranting the imposition of a continuous trigger. And, generally, the insurers will likely seek to limit the spread of potentially triggered policies to as few years as possible, and as close to the manifestation of the disease as possible.

Exceptional advancements in the science of diagnosing and predicting cancer in just the last few years will provide plaintiffs, policyholders and insurers the opportunity to craft new trigger theories to their advantage and to circumvent past judicial decisions that were to their disadvantage. We have already seen the insurance industry using alleged advancements in asbestos science to attempt to limit the scope of historical “occurrence” policies. There is no insurance precedence with respect to trigger and talc ovarian cancer claims. Expect both sides to bring new experts and theories with respect to biologic and genomic issues, including molecular cancer experts opining about genetic alterations pre-existing before manifestation of a tumor. Resolution of these issues will be especially challenging because much less is known about females’ “defense systems” as opposed to airborne exposure through the lungs.

The science of ovarian cancer cosmetic talc claims is likely different from asbestos claims, but that will be a question for the experts and courts. Because plaintiffs will have an easy time in most cases demonstrating exposure to consumer products (e.g., for baby powder, theoretically from birth to present), both kinds of cosmetic talc claims generally would be linked together based on length and type of exposure.  .

Hiding Data That Showed Potential Dangers: The standard complaints utilized in the St. Louis cases allege that J&J knew about the risks of ovarian cancer as early as 1971. The complaints allege that “nearly all” of 23 known epidemiologic studies on cosmetic talc reported an associated risk with ovarian cancer, and assert alleged instances in which J&J “knowingly released false information” about the safety of talc in coordination with the Cosmetic Toiletry and Fragrance Association. Media reports suggest that, in post-trial interviews, jurors indicated that these allegations were part of the motivation for the large punitive damages award.

Question: Will industrial and cosmetic “personal care” products made with talcum powder and the emerging confirmed links to “asbestos” and “mesothelioma” become the new long term mass tort resulting in thousands of complaints against nontraditional and unsuspecting defendants? Such as the Los Angeles County, California Superior Court lawsuits where a 2015 “cosmetic talc” trial resulted in an $18 million verdict award based on “cosmetic talc exposure in a barbershop” against Old Spice, Clubman, Kings Men and Mennen Shave Talc, as well as a prior 2015 trial verdict of $13 million against Colgate-Palmolive for exposure to talc in its baby powder.

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SCOTUS Bristol-Myers “California-Plavix” Ruling Causes Instant Mistrial in Missouri State Court J&J Talc Trial, But Judge Resets Trial For October 16, 2017

SCOTUS Bristol-Myers “California-Plavix” Ruling Causes Instant Mistrial in Missouri State Court J&J Talc Trial, But Judge Resets Trial For October 16, 2017

July 19, 2017 By Mark York

Is Missouri State Court Still a “J&J Loses Again Venue” or Will the California-Plavix Ruling Change Things?

On June 19, 2017 lawyers in a St. Louis courtroom trial, Estate of Shawn Blaes, et al vs. Johnson & Johnson Case No. 1422-CC09326-01 over Johnson & Johnson’s talcum powder,  were receiving notice of an earlier US Supreme Court decision and were changing trial strategy instantly, scrambling to determine if the Supreme Court decision handed down that morning doomed their case. The ruling was from a California multi-plaintiff drug case, Bristol Myers-Plavix Litigation JCCP Case No. 4748 (San Francisco County Superior Court) where Bristol-Myers had appealed the August 29, 2016 California Supreme Court decision, when the court ruled that “foreign resident plaintiffs were able to remain parties to the Plavix litigation in California State Court” see California Court Opinion Jurisdiction of Non-Resident Plavix Plaintiffs 8.29.2016. Bristol-Myers immediately appealed to the US Supreme Court, where appeal arguments were heard on April 24, 2017 see BMSQ California Plavix SCOTUS Appeal Transcript , which left non-resident plaintiffs in state court cases across the country in limbo, pending the ruling.  On June 19th the 8-1 ruling clarified the non-resident question for many plaintiffs, including the three plaintiffs in the pending trial in front of Judge Rex Burlison, who immediately declared a mistrial, but prior to his ruling the trial attorneys were scrambling to get correct information.

One attorney was still downloading the opinion to his computer as another told the judge “I’m on my cellphone right now trying to learn facts,” according to the trial transcript, Shawn Blaes v. J&J June 19th Trial Transcript of the hearing. Defense counsel aggressively asserted to Judge Burlison that the Supreme Court decision in Bristol-Myers Squibb Co. v. Superior Court, June 19, 2017 California-Plavix SCOTUS Opinion which limited where defendants could be sued, was directly applicable to the case and had disrupted matters so thoroughly that he had to declare a mistrial.

But plaintiffs lawyers had a surprise: A company called “Pharma Tech Industries” was involved, and when W. Wylie Blair of Onder, Shelton, O’Leary & Peterson, was asked to address Bristol-Myers, he introduced the judge to Pharma Tech, a company that was “doing the packaging, labeling and distributing of talc-based body powders right here in Union, Missouri.”

“Roll that again,” Burlison interrupted. “Pharma Tech Industries was doing what?”

Plaintiffs counsel Blair went on to tell him about letters, forms, emails, monthly checks and sales documents showing Pharma Tech’s plant in Missouri had bought raw talc from Imerys Talc America Inc., another defendant in the case, which alleged Johnson & Johnson’s talcum powder caused three women to die from ovarian cancer. Pharma Tech then made products for Johnson & Johnson, and originally the talc products by Pharma Tech had a cancer warning on it, but Pharma Tech, at J&J’s direction, removed it when manufacturing, bottling and labeling its products.

Though intrigued, Burlison decided not to proceed with the trial, as two of the three plaintiffs hadn’t lived in Missouri.  The judge granted Johnson & Johnson’s motion for a mistrial. Going forward, he said, would be like “trying to master a square into a round hole.”

“We do have allegations in this case that would constitute what the Bristol-Myers court refers to as relevant acts, however, we don’t — we do not have pleadings sufficient to anchor those relevant acts to a third party, that being the Pharma Tech Industries here in Missouri,” Burlison said.

The judge has reset the case for trial on Oct. 16, 2017 and permitted plaintiffs attorneys to move forward on discovery over Pharma Tech, a family-owned manufacturer of pharmaceutical powders based in Athens, Georgia. Founded in 1972, Pharma Tech has been run by the same family since 1989, which has a plant in Union, Missouri that provides talc products to Johnson& Johnson.

The Pharma Tech evidence could prove essential to the claims of more than 1,360 other plaintiffs who have cases pending in Missouri, where juries have awarded verdicts of more than $300 million. Pharma Tech has come up in plaintiffs’ motions this month to remand 20 cases back to Missouri. Johnson & Johnson removed them to federal court under Bristol-Myers just before the scheduled depositions and subpoenas on the Pharma Tech evidence. Plaintiffs’ attorneys also want the Missouri Court of Appeals to let them to add the Pharma Tech evidence to a pending appeals of the prior Missouri court verdicts.

Johnson & Johnson declined to comment on the ruling, while co-defendant, Imerys declared:

“None of the cases tried to date have alleged any conduct by Imerys in Missouri, and the vast majority of cases filed against us in St. Louis are by plaintiffs who similarly have no connection to St. Louis or Missouri,” said Imerys spokeswoman Gwen Myers. “We will look to overturn those cases that were already improperly tried in this jurisdiction and will seek to apply this ruling to those that are still pending.”

The defense bar has been emboldened by Bristol-Myers in which the Supreme Court ruled non-resident plaintiffs who sued Bristol-Myers in California 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.” Most of the 600 plaintiffs didn’t live in California, and Bristol-Myers is based in New York. The court also found that a California distributor, McKesson Corp., didn’t have enough connection to the claims.

 

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Johnson & Johnson Faces First California State Court Talcum Powder Trial in Los Angeles Superior Court

Talcum Powder Trial

The closely watched first bellwether trial (Eva Echeverria v. Johnson & Johnson, Case No. BC628228), in California state court over claims of cancer caused by Johnson & Johnson’s talc-based products began on Monday July 10th in Los Angeles County Superior Court, in front of Judge Maren Nelson. The trail started following hearings last week over the admissibility of expert witness testimony and the judge’s summary judgment rulings. The first day of trial saw Judge Maren Nelson change her July 5th ruling that J&J talc supplier Imerys Talc America would be included in the trial, where last week she ruled that Imerys reliance on J&J to warn of “talc dangers” was a question of fact for the jury. Prior to the start of the trial on Monday July 10, 2017 Judge Nelson entered a ruling that Imerys is dismissed from the trial. How this ruling impacts J&J’s trial strategy on the first day of trial is unknown, but does direct trial focus entirely onto Johnson & Johnson .

Last week Judge Nelson held “Sargon” hearings, the California equivalent of a “Daubert” hearing where parties argue over which expert witnesses will be permitted to testify at trial and the scope of their testimony. Judge Nelson chose not to exclude any experts or their testimony, but these hearings do reflect the enhanced scrutiny by state court judges, as to expert testimony in talc cases pending in state courts of New Jersey, California, Missouri and Pennsylvania. These pretrial hearings can be as significant as the trials themselves, as proven last October when a New Jersey state court judge canceled the first talc powder trial there after refusing to permit testimony from experts for the plaintiffs over alleged causal links between talc and ovarian cancer. These are the same experts who testified in the recent St. Louis talc trials where verdicts in excess of $300 million have been returned in the last 2 years; however, on June 29th, Judge Rex Burlison (St Louis Circuit Court), granted J&J’s motion for a mistrial, the same day the US Supreme Court ruled on the California State Court Plavix litigation in Bristol-Myers v. Superior Court of California, in an 8-1 opinion, siding with Bristol-Myers and struck down a California Supreme Court ruling allowing out-of-state plaintiffs to join a mass action over the blood thinner Plavix. One of the deceased women in the St. Louis trial was a former Missouri resident, while the other had lived in Texas and Virginia. How the Plavix ruling affects the thousands of other pending cases in the California “JCCP Consolidated Case” docket remains to be seen.

The Bristol-Myers(Plavix) Supreme Court jurisdictional ruling has caused counsel for parties in state court medical device and pharmaceutical cases across the country to change strategy citing to the Plavix opinion as grounds to dismiss thousands of state court cases where plaintiffs are non-residents. The current J&J talc trial in front of Judge Nelson is excluded from the Plavix ruling as Plaintiff, Eva Echeverria is a California resident, who claims she developed ovarian cancer while living in the state after using J&J’s talc products since the 1950’s. Besides being the first state court talc trial outside of Missouri, Echeverria’s case will also highlight a new group of plaintiff attorneys, after the same team represented plaintiffs in each of the previous talc trials.

All the St. Louis talc trials were handled by out-of-state plaintiff firms (Alabama-based Beasley Allen and the Mississippi-based Smith Law Firm), Echeverria’s team consists entirely of local California firms, with Mark P. Robinson Jr. of Robinson Calcagnie as lead counsel and Kiesel Law LLP, Boucher of Boucher LLP, Girardi Keese as liaison counsel. Johnson & Johnson are represented by some of the same firms that represented the companies in St. Louis, like Shook Hardy & Bacon, which is headquartered in Missouri, J&J’s other defense firm, Ohio-based Tucker Ellis, is making its first appearance in a talc trial.

J&J counsel are expected to be extremely aggressive in their attacks on plaintiffs’ experts, the science they rely on and medical treatment testimony, especially in light of the recent J&J defense verdicts in the first 2 Xarelto bellwether trials in the Xarelto MDL 2592 (US District Court Eastern District of Louisiana), where both juries returned defense verdicts within 24 hours of the start of deliberations.

Mass Tort Nexus will be providing ongoing updates to the Echeverria v. Johnson & Johnson trial as the develop.

The consolidated California cases are captioned Johnson & Johnson Talcum Powder Cases, number JCCP4872, and the bellwether case is captioned Eva Echeverria v. Johnson & Johnson, number BC628228, in the Superior Court of California for Los Angeles County.

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Mistrial Declared in Missouri Talc Case after Supreme Court’s Bristol-Myers Ruling

talc johnson & johnsonA Missouri judge granted a mistrial in Johnson & Johnson’s baby powder trial in Missouri today after the U.S. Supreme Court’s ruling in Bristol-Myers’ Plavix Case yesterday.

The court granted Johnson & Johnson’s motion for a mistrial, which cited Bristol-Myers Squibb v. Superior Court of California. The decision held that California courts lack specific jurisdiction to entertain the nonresidents’ claims.

Johnson & Johnson sought the mistrial in Swann v. Johnson & Johnson, which involves the claims of more than 60 women, many of whom were not from Missouri. The family members of three of those women, all deceased, were the plaintiffs in this month’s trial. Only one was from Missouri.

“Under the reasoning of Bristol-Myers, the mere fact that nonresident plaintiffs have joined their claims with those of a handful of Missouri residents does not suffice to give rise to personal jurisdiction over the Johnson & Johnson defendants with respect to their claims,” says 22nd Circuit Court in St. Louis Judge Rex Burlison.

Dramatic implications

The mistrial decision could have dramatic implications for the rest of the Missouri trials, the next of which was slated for August, according to the National Law Journal. Some 1,700 women allege that they got ovarian cancer from prolonged use of talcum powder have filed claims in suits in Missouri.

But lead plaintiffs attorney Ted Meadows immediately refuted the idea. Ted Meadows, of Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Alabama says, “After reviewing this morning’s Supreme Court ruling, and based on evidence and statements now in the record, we believe this litigation can go forward in Missouri courts. ”

Johnson & Johnson has so far lost jury verdicts in Missouri totaling roughly $300 million. Last month, a Missouri jury awarded $110 million in an individual case. Johnson & Johnson won one verdict earlier this year.

It was the fourth mega-verdict delivered against Johnson & Johnson, which has known about the ovarian cancer risks since the 1970s. In 2016 juries returned verdicts of $72 million, $70 million and $55 million against J&J in lawsuits filed by women with ovarian cancer.

 

 

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6th Ovarian Cancer Trial – Jury Hears Opening Statements in Missouri’s

Missouri’s sixth trial involving Johnson & Johnson’s talcum powder products and their alleged association with ovarian cancer is now underway in the 22nd Circuit Court in St. Louis.

During opening statements last Friday, attorneys for three women who died of the disease asserted that the health care products giant continued to market its talc-based powders, even as it was aware of mounting scientific evidence linking genital talc use to ovarian cancer. They also accused Johnson & Johnson of specifically marketing its Baby Powder and Shower-to-Shower franchises to African-American women, though some research suggested that they were more susceptible to the disease. (Case No. 1422-CC09326-01)

“We will be monitoring this trial closely, as it could provide insight into how other juries might rule in similar claims,” says Sandy A. Liebhard, a partner at Bernstein Liebhard LLP, a nationwide law firm representing victims of defective medical devices, drugs, and consumer products.

Talcum Powder Verdicts

The talcum powder lawsuits currently at trial in Missouri were all filed on behalf of women who had allegedly incorporated Johnson & Johnson’s Baby Powder and Shower-to-Shower products into their daily feminine hygiene routine for more than 25 years. All were allegedly found to have talc in their ovaries.

Johnson & Johnson is named a defendant in more than 3,000 talcum powder lawsuits nationwide, all of which were filed on behalf of women who allegedly developed ovarian cancer following the regular and repeated use of the company’s talc-based powders for feminine hygiene purposes. More than 1,000 claims have been centralized in Missouri’s 22nd Circuit Court, where four other talcum powder plaintiffs have already been awarded compensatory and punitive damages ranging from $55 million to $110 million. Johnson & Johnson has prevailed in just one trial.

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