JEFFERSON CITY – Plaintiffs involved in two talc-related cases being heard in Missouri suffered recent blows with a reversal of a $72 million award and the halting of a trial due to begin last month.
The two decisions, arising out of separate mass actions, are both linked to a landmark Bristol-Meyers Squibb decision by the U.S. Supreme Court that severely limits the ability of out-of-state plaintiffs to attach themselves to suits filed in the state.
One of the decisions, the overturning of a $72 million award against Johnson and Johnson, was directly linked to the Bristol Myers Squibb ruling that either the defendant or plaintiff must have strong ties to a jurisdiction. The ruling was made Oct. 17.
Plaintiffs in the talc cases claim J&J failed to warn of the increased risk of contracting ovarian cancer after using talc products, including Baby Powder and Shower to Shower.
Jacqueline Fox, 62, of Birmingham, Alabama, was one of 65 individual plaintiffs. She died in 2015 before the trial began in St. Louis City Circuit Court. Her family was awarded $72 million in 2016.
"The parties agree that BMS is controlling here, but they disagree on the resulting outcome," the Missouri Court of Appeals, Eastern District held.
Lawyers for Fox wanted the case remanded back to the trial court for further argument on jurisdiction. They argued that J&J has strong links to the state as they directed the production, packaging and distribution of its talc products through a Missouri-based company.
The appeals court tossed that argument, finding that the plaintiffs had ample opportunity to introduce that claim of jurisdiction before the trial court.
"Fox provides no Missouri precedent illuminating a procedural path for this court to stay a jury verdict pending re-litigation of facts supporting jurisdiction," the court ruled. "Simply put, this court declines to remand the case."
"I am extremely disappointed for my client and her family not getting justice," Ted Meadows, one of the lawyers representing Fox, told the St. Louis Record.
"They used Bristol Myers Squibb against us without giving the opportunity to argue further," he said, adding that they should have been allowed to do so because the trial happened long before the U.S Supreme Court decision. Meadows said his client's family is considering appeal to the Missouri Supreme Court.
A separate decision by the Missouri Supreme Court in October halted the pending trial involving Shawn Blaes, a Missouri resident who died in 2010 from ovarian cancer. The case was taken by her husband Michael Blaes.
The trial began in June but a mistrial was declared by Judge Rex Burlison after the BMS decision was delivered. He agreed to consider a renewed application by J&J to sever the Missouri resident from those living out of state.
Burlison ruled against J&J and the trial was set to begin again, but that was halted by the Missouri Supreme Court through a temporary writ of prohibition Oct. 13. The court ordered the judge to file written reasoning for why he ruled against the company, and to do so by Nov. 13.
A decision will then be made by the Supreme Court whether Blaes will be severed from the other plaintiffs.