Howard Erichson was quoted in Bloomberg Law about Missouri Court of Appeals recently throwing out a $72 million award to a nonresident plaintiff who claimed that Johnson & Johnson talcum powder caused her ovarian cancer.
An out-of state plaintiff didn’t belong in a talc-injury case brought in a plaintiff-friendly Missouri court and isn’t entitled to her $72 million jury award against Johnson & Johnson, the Missouri Court of Appeals ruled Oct. 17.
The court applied a recent U.S. Supreme Court opinion, Bristol-Myers Squibb Co. v. Superior Court of Cal., to determine that Jacqueline Fox’s claims related to her ovarian cancer didn’t arise out of J&J’s activities in the state.
With that, the court tossed the first of several talc verdicts, which have totaled more than $300 million in the Circuit Court of the City of St. Louis. A separate $417 million verdict is the subject of post-trial motions in a California state court.
“This was inevitable,” said Prof. Howard Erichson of Fordham University School of Law in New York.
The BMS decision held that in order to establish a court’s authority, plaintiffs must either file in one of a defendant’s “home” states or the state where their claim arose out of or was related to the defendant’s conduct, Erichson told Bloomberg Law. But talc, more than other mass torts, has had its center of gravity in Missouri, he said, with the state’s multimillion-dollar verdicts being the first to be handed down against the company. So it may affect the plaintiffs’ momentum in the nationwide talc litigation, he said.
Johnson & Johnson said in an August 3 securities filing that it is defending itself from about 4,800 plaintiffs who allege its talc products, mainly Johnson’s Baby Powder, caused women to develop ovarian cancer.
“The big picture is that non-Missouri plaintiffs aren’t going to be able to file in Missouri,” he said.
The nonresident talc plaintiffs will be able to re-file their cases in their own states or in New Jersey, where J&J is headquartered, according to Erichson and attorney Mark Raffman.