Talc defendant cites Supreme Court ruling on out-of-state plaintiffs in bid to overturn verdict

By John Breslin | Apr 10, 2017

ST. LOUIS — A defendant in a class action lawsuit over claims that talc is linked to patients developing ovarian cancer has cited a recent Missouri Supreme Court ruling that foreign corporations cannot be sued for events that happened out of state.

Imerys Talc attempted to use the decision to argue in a post-trial brief for the reversal of a $70 million award against the company and Johnson & Johnson, but this was rejected last month by the trial court. 

This legal shuffling comes as a fifth talcum powder trial is slated to begin today before Judge Rex M. Burlison of the 22nd Circuit Court of St. Louis, who has presided over all of the court's talc trials.

Despite Burlison's ruling, legal experts think the Feb. 28 state Supreme Court decision involving Norfolk Southern Railway Co. could have "a far reaching impact" and make it more difficult for out-of-state plaintiffs to sue foreign corporations in Missouri.

Both Imerys, a producer of talc, and Johnson & Johnson have consistently argued that is the situation in the talc action, which involves hundreds of out-of-state plaintiffs. They are likely to continue to make that argument.

The fifth trial involves 61-year-old Lois Slemp of Virginia, who claims her ovarian cancer was caused by using Johnson & Johnson talc-based products over the course of four decades. Slemp's case, a defense pick, was advanced due to her declining health, according to a report in the legal news site HarrisMartin.

Of the four previous jury trials, three ended with verdicts in favor of the plaintiffs, with awards of $72 million, $55 million and $70 million. 

Then on March 3, a jury returned a verdict in favor of the defendants and against the plaintiff, Nora Daniels. 

"The jury’s decision is consistent with the science, research, clinical evidence and decades of studies by medical experts around the world that continue to support the safety of cosmetic talc," Johnson & Johnson said in a statement after the verdict was delivered.

More than 3,000 cases have been filed in state courts nationwide. The plaintiffs argue repeated use of talc-based products, including baby powder and Shower to Shower, have increased the odds of a woman developing ovarian cancer and that Johnson & Johnson did not issue any warnings despite it allegedly knowing the supposed dangers.

In St. Louis earlier this year, both Imerys and Johnson & Johnson filed post-trial motions arguing against the $70 million award and asking for judgment, for a new trial and to reduce the “unconstitutionally excessive punitive damage award.” 

Following the Supreme Court ruling in the Norfolk case, Imerys filed a brief on March 10 in support of its post-trial motion. Burlison, on March 13, rejected all arguments in the motion and added that the jury’s $67.5 million punitive damage award was “not grossly excessive nor arbitrary.” 

An appeal against the first verdict out of St. Louis - $72 million awarded to the estate of an Alabama woman - is due to be heard in May at the Missouri Court of Appeals, Eastern District.

In the Norfolk ruling, a case involving injured worker Russel Parker, the Supreme Court said that the state does not have jurisdiction over the railway company for an injury that happened in Indiana. This is the situation even when the railway does substantial and continuous business in Missouri.

The court also found that Norfolk did not imply consent to jurisdiction by complying with Missouri foreign corporation registration statute.

"A plaintiff may bring an action in Missouri on a cause of action unrelated to a corporation’s Missouri activities if the corporation is incorporated in Missouri, has its principal place of business in Missouri, or in the exceptional case when its contacts with Missouri are so extensive and all-encompassing that Missouri, in effect, becomes another home state," the ruling stated.

Parker's complaint did not allege any negligence or other conduct or omission by Norfolk in Missouri caused the injury, "nor does his petition set out any basis for specific or general personal jurisdiction over Norfolk other than his statement that Norfolk conducts substantial business and owns property in Missouri," the opinion said

"The Missouri Supreme Court's ruling could have a far-reaching impact as it will likely become much more difficult for plaintiffs to sue out-of-state corporations in Missouri over events that occurred elsewhere, regardless of the nature of the claim," attorneys Douglas M. Nieder, Corey M. Schaecher and David A. Weder wrote in a post on the website of defense firm Lewis Rice.

In tandem with the trials and the Supreme Court, some Missouri legislators continue to pursue a change of law to make it more difficult for out-of-state plaintiffs to sue in state courts.

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