ST. LOUIS — The Missouri Supreme Court has denied requests by Johnson & Johnson to delay trials over its talcum powder products, a victory for Alabama law firm Beasley Allen, which filed the lawsuit.
The out-of-state firm has been criticized for filing the suit in St. Louis but declined to comment specifically on the allegations for the St. Louis Record.
Darren McKinney, a spokesman for the American Tort Reform Association (ATRA), said that St. Louis is at the top of the group’s Judicial Hellholes list, which names cities the organization says has unbalanced courts. Although Beasley Allen has previously claimed that the case was filed in St. Louis due to its central location for the plaintiffs, others have said that the filing is based on lax venue laws and the fact that the Daubert standard doesn’t apply in the Show Me state.
Without the Daubert standard, expert testimony that doesn’t meet the strict requirements of the federal courts can still be presented to Missouri jury members.
“Beasley and his ilk, when they speak of central locations and efficiencies, they are basically saying that it’s efficient for them," McKinney told the St. Louis Record. "They have the St. Louis judges are notoriously plaintiff friendly. The venue law allows for these plaintiff bar shenanigans. That is to say effectively inviting out-of-state plaintiff’s attorneys to bring their cases to St. Louis, and arguably most importantly with respect to these talc cases the state of Missouri, also known as ATRA likes to call it the ‘show-me-your-lawsuits’ state, has a lax standard for expert testimony.”
According to Beasley Allen, more than 20 scientific studies show that women who used talcum powder for genital hygiene purposes face an increased risk of 30 percent to 60 percent of developing ovarian cancer compared to those who never used the product.
According to the American Cancer Society (ACS), however, there is little evidence linking cancer to consumers' use of talcum powder. Although talc in its natural state contains asbestos, a known carcinogen, products used in U.S. households have been free of the carcinogen since at least the 1970s.
The facts in this case, specifically the lack of scientific evidence, are another reason that Beasley Allen may have chosen St. Louis as a venue for the lawsuit against Johnson & Johnson, McKinney said.
“The fact of the matter is, as much as Beasley would have jurors and your readers and anyone else believe, the fact of the matter is the American Cancer Society, various medical associations and scientific organizations both in North America and Europe have found no causal link whatever between talcum powder use and ovarian cancer,” he said. “Unlike New Jersey, where the same expert witnesses that are used routinely in St. Louis were rejected, Beasley’s experts are allowed to mislead jurors in St. Louis. So that’s why Beasley wants to bring his cases in St. Louis. He knows he can get away with murder there and he’s been doing it.”
Juries in St. Louis have returned verdicts of $70 million, $72 million and $55 million for people suffering from cancer in separate cases, Beasley Allen said in a press release. Those kinds of verdicts mean that victims recover damages, but they also mean that firms like Beasley Allen can profit from contingency fees, McKinney said.
“[Beasley Allen] has invested many, many millions of dollars saturating the television market in St. Louis with commercials that ostensibly appear to be client recruitment commercials,” he said. “‘Have you been exposed to or do you or a loved one have ovarian cancer, have you been exposed to talcum powder, you may have a lawsuit.’ These ostensibly appear to be client recruitment commercials, but what they effectively function as is jury pool conditioning tools.”
Whether the firm is specifically targeting the St. Louis market with the goal of conditioning juries to be predisposed to the idea that talc powder causes ovarian cancer is unknown, but the numbers, according to a motion filed by Johnson & Johnson defense, note that the St. Louis television market received a disproportionate amount of advertising compared to the rest of the nation.
“I think in calendar year 2016 [Beasley Allen] spent approximately $10 million on talc-ovarian cancer commercials in the St. Louis market, but in March of 2016, nearly a quarter," McKinney said. "That is to say 23 percent of all talc-ovarian cancer commercials that ran throughout the United States, 23 percent of them ran in the St. Louis market; and the St. Louis market comprises but 1 percent of the television viewing audience of the country. So, that should tell you a little something about their game plan. They are conditioning jurors with television ad saturation. They’re taking advantage of a lax venue law which lets out of state plaintiffs bring their cases to St. Louis; and most importantly they are taking advantage of the lax standard for expert evidence.”
The talcum powder trial was scheduled to move forward Feb. 6.