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.