St. Louis Record

Monday, December 9, 2019

Johnson & Johnson appeal in talc lawsuit stalls as SCOTUS weighs in on out-of-state complainants issue in California suit

By Michael McGrady | May 26, 2017

Johnson johnson talcum powder

ST. LOUIS — Johnson & Johnson was dealt a blow to an appeal motion when a three-judge panel opted to not issue an opinion in a high-stakes talcum powder lawsuit against the company.

In the case of Fox, et al. v. Johnson & Johnson, Missouri Court of Appeals for the Eastern District Judges Angela Quigless, Robert Dowd and Lisa Van Amburg heard oral arguments May 10 over whether to grant Johnson & Johnson’s. The panel opted to wait until the U.S. Supreme Court rules on a similar case, according to legal news site HarrisMartin.

“This didn’t come as a surprise to us at all,” William Wylie Blair, an attorney with Onder, Shelton, O’Leary & Peterson LLC in St. Louis who represents the plaintiff's estate in the appeal, told the St. Louis Record. “Obviously, the United States Supreme Court is the supreme law of the land, and the appellate court is required to follow the directive of the Supreme Court. So, it makes sense.”

The panel is waiting for the ruling in Bristol-Myers Squibb Co. v. Superior Court of California. At issue in that case is whether some 600 out-of-state complainants who filed a claim regarding the blood thinner product Plavix (also known as clopidogrel), can be subject to California’s personal jurisdiction. In this case, the 600 complainants exceed the maximum permissible number of out-of-state complainants per the provision of Code of Civil Procedure, Section 410.10, under the U.S. Constitution.

The Supreme Court heard oral arguments for the Bristol-Myers Squibb case in late April. The justices are expected to issue an opinion by the end of June.  

“There are some issues related to personal jurisdiction that are going to be decided in that case,” Blair said. “(Again), it wasn’t a surprise at all that the Court of Appeals wasn’t rushing into a decision without knowing what the Supreme Court is going to do.”

The case before the Missouri appeals court focuses on whether plaintiff Jacqueline Fox contracted ovarian cancer from the use of a talcum product produced by the company. 

Fox claimed her extended use of the talcum powder product, from September 1953 to January 2013, played a role in the development of her cancer. She was diagnosed in March 2013 and died soon after litigation began. She used the talcum powder in the states of Georgia and Alabama during the time frame, so she is classified as an out-of-state plaintiff.

In 2016, Fox's estate was awarded $72 million in a jury verdict. Johnson & Johnson filed several post-trial motions, including a judgment to be reached notwithstanding the verdict and a motion for a new trial. The motions were denied, so the company appealed.

One of the biggest issues of contention for the defendants was the fact that the plaintiffs involved in the case, and ones similar to this case, filed complaints against Johnson & Johnson “bought and used ... cosmetic products and were diagnosed with ovarian cancer in states other than Missouri,” a jurisdictional brief notes.

Counsel for the defendants pointed to the Missouri Supreme Court’s decision in Norfolk Southern Railway Co. v. Dolan, in which it was determined the state's courts had no personal jurisdiction over a personal injury case filed by an out-of-state complainant against the railroad operator.

The defendants also took issue with an expert witness' testimony trying to establish the nature of the relationship between Fox’s talcum powder use and her ovarian cancer diagnosis.

The expert’s “opinion is not a product of reliable methods or sound science,” the defendants claimed. “Her methodology for and opinion on general causation were developed for litigation, and she had never submitted them for peer-review.”

The plaintiffs' counsel argued that they were establishing a relationship between the talc use and the diagnosis on the grounds of association — not causality. The plaintiffs argued that the expert took into account numerous studies and reached her conclusions through criteria established in her field of epidemiology.  

Blair feels confident that when an opinion is issued, it will be in the plaintiff's favor.

“My analysis of the law is, you know, that we are on the right side of it,” he said. “We’re very optimistic and believe that it’s going to come down in our favor. I’ve been wrong in the past but we are not too worried.”

Counsel for Johnson & Johnson declined to comment for this story. 

The Fox suit is one of about 2,000 such cases against Johnson & Johnson in state and federal courts. Alabama law firm Beasley Allen has been accused of attempting to use the doctrine of friendly courts, such as the 22nd Circuit Court in St. Louis, to substantiate scientific findings that it says show that talcum powder use for genital hygiene purposes among women is 30 percent to 60 percent more likely to receive an ovarian cancer diagnosis. 

In March, a jury sided with Johnson & Johnson in a similar lawsuit involving a Tennessee woman's allegations that her use of the product resulted in her ovarian cancer diagnosis. 

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Johnson & JohnsonMissouri Court of Appeals Eastern District