St. Louis Record

Wednesday, November 13, 2019

Missouri appeals panel tosses another J&J talc-cancer award based on U.S. Supreme Court jurisdiction decision

State Court

By Karen Kidd | Oct 16, 2019

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ST. LOUIS – A Missouri appeals court on Tuesday tossed out a $110 million judgment against Johnson & Johnson and Imerys Talc America Inc., saying a lower court lacked jurisdiction.

In its eight-page decision, a Missouri Eastern District Court of Appeals three-judge panel cited a U.S. Supreme Court decision issued two years ago to reverse and vacate a St. Louis Circuit Court jury's award to a Virginia ovarian cancer sufferer based on jurisdiction. The panel found that courts in Missouri don't have authority to hear cases not rooted enough in their jurisdictions.

"We find the trial court exceeded its authority by revising its August 3, 2017 judgment in a manner not requested by either party in an authorized and timely after-trial motion," the appeals court's decision said. "Because the trial court was without authority to amend the judgment removing the Rule 74.01(b) certification for appeal, this case is properly before this court, and we have authority to dispose of it."

Judge Sherri Sullivan

The panel ruled that the case of Lois Slemp, who claims that talc powder products caused her ovarian cancer, didn't have enough ties to Missouri for courts to claim jurisdiction to hear it.  

"Respondent (Slemp) alleged she had used appellants' talc products for many years, and in 2012 developed cancer as a result," the appeals court said in the background portion of its decision. "The talc products Respondent used were manufactured in Georgia, and purchased and used by Respondent in Virginia."

Appeals court Judge Sherri B. Sullivan wrote the opinion in which Judge Mary K. Hoff and Judge Angela T. Quigless concurred.

The appeals court panel's ruling is the third Missouri talc verdict to be overturned based on the U.S. Supreme Court’s 2017 decision in Bristol-Myers Squibb v. Superior Court of California.

In that case, the nation's highest court ruled that lawsuits must arise from or be related to a defendant's contacts within a geographic area for a state court to have "specific personal jurisdiction."

The Bristol-Myers Squibb decision "clarified the existing law on specific personal jurisdiction requiring the trial court have personal jurisdiction over the defendants with regard to each claim, rather than establishing personal jurisdiction by allowing non-residents to join similar claims with those of Missouri residents," the appeals court's decision said.

In June of last year, the state's Eastern District threw out a $55 million verdict against Johnson & Johnson based on the Bristol-Myers Squibb decision.

This past June, the Eastern District reversed and vacated an approximately $68 million judgment against Johnson & Johnson, ruling that Missouri lacks specific jurisdiction.

The Missouri Supreme Court twice this year has intervened in a talc case, based on the Bristol-Myers Squibb decision.

In January, the Missouri Supreme Court, citing a jurisdictional challenge, stopped trial of a complaint by women who claimed their cancer had been caused by using products produced by Imerys Talc America and Johnson & Johnson products.  The Missouri Supreme Court made a similar ruling in a similar case the following month.

On appeal, Slemp's counsel argued for "a case of first impression" that would not limit the trial court’s authority to amend the judgment and "to transcend the limits imposed by other Missouri Supreme Court rules," the appeals court decision said.

"We cannot agree with respondent's view," the appeals court decision continued. "Notably, respondent can cite no cases directly supporting this proposition."

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