Missouri Appeals Court Throws Out $72 Million Johnson & Johnson Talcum Powder Cancer Verdict
By Mark A. York (October 17, 2017)
Mass Tort Nexus
Photo of Jacqueline Fox and her son, Marvin Salter.
Earlier today, the Missouri Eastern District Court of Appeals threw out a $72 million state court jury verdict awarded to a woman who claimed her longtime use of Johnson & Johnson baby powder and other J&J products contributed to ovarian cancer that killed her.
The appeals court unanimously ruled that Jacqueline Fox’s lawsuit lacked jurisdiction in Missouri because of the June 2017 US Supreme Court decision, (see U.S. Supreme Court Strikes Down California Ruling in Bristol-Myers Plavix Case) that clarified where injury lawsuits can be filed based on the state where a plaintiff is a resident. The Bristol-Myers Squibb case said non-California residents could not file claims there against the New York-based maker of the blood thinner Plavix, in a ruling that established a lawsuit’s jurisdiction requiring a much clearer connection between the forum state, a corporation and a plaintiff’s claims.
Appellate Judge Lisa Van Amburg wrote “Specifically, Fox seeks to establish that J&J directed the production, packaging and distribution of its products through a Missouri company, Pharma Tech,”. and “J&J counters that Fox is precluded from supplementing the record at this stage and urges this court to dismiss the case outright with prejudice.”
Ms. Fox, 62, of Birmingham, AL, died in 2015, just four months before her trial was held in St. Louis Circuit Court. She was among 65 plaintiffs, of which only two were from Missouri, who joined in the lawsuit. A jury in February 2016 awarded her $10 million in actual damages and $62 million in punitive damages.
It was the first verdict in the country where a jury awarded damages over claims that talc contributed to cancer. Fox said in her pleadings that she used Johnson & Johnson products containing talcum powder for more than 25 years. The trial lasted more than three weeks and was the first of four multimillion dollar verdicts against Johnson & Johnson, which now total in excess of $300 million. However, the Supreme Court BMSQ Plavix ruling will have an impact on other Talc cases not only in St. Louis but across the country as well.
The plaintiffs who’ve also gone to trial here were from elsewhere — Alabama, California, South Dakota, Tennessee, and Virginia. All but one prevailed; and Johnson & Johnson has appealed all of the verdicts against the company.
Fox’s lead counsel James Onder, who represents plaintiffs in other pending talcum powder cases, said Tuesday he was disappointed by the decision but “optimistic that the Missouri Supreme Court will find otherwise.”
Onder noted that the U.S. Supreme Court sent the BMSQ Plavix case back to California state courts; he said he hopes the Missouri Supreme Court will review Fox’s case and do the same, and also look at rules allowing plaintiffs to join together to file claims in Missouri.
“I suspect this will all be decided by the Missouri Supreme Court,” Onder said.
The Bristol Myers ruling has delayed the sixth talcum powder trial that originally was set for June and was rescheduled for this week but was postponed again. It involves the first in-state plaintiff — Michael Blaes of Webster Groves — whose wife, Shawn M. Blaes, died of ovarian cancer at age 50. She was a competitive figure skater, coach and co-owner of a skate shop in Webster Groves.
Johnson & Johnson, a health care giant based in New Brunswick, N.J., had appealed the Fox verdict and has maintained that its products are safe. And stated that their talcum powder is made from talc, a mineral that has not been linked to causing cancer.
In the appeals court ruling the court vacated Fox’s complete lawsuit instead of sending it back to the circuit court, finding the court has no authority “rewind the case so as to supplement the pre-trial record to establish jurisdiction under the new standard.”
In a separate, concurring opinion, Appellate Judge Kurt Odenwald said that if Fox had anticipated introducing additional evidence establishing jurisdiction, by showing co-defendant Pharma Tech’s Missouri-based distributor of J&J products, were linked, then “she had full and ample opportunity to engage in discovery and present evidence to the trial court. She did not.”