While the Missouri Supreme Court may have had good reason to decline review of the multi-plaintiff, billion-dollar-plus Ingham v. Johnson & Johnson talc verdict, the case is "crying out" for U.S. Supreme Court review, according to a St. Louis attorney contributing to the company's defense.
“I think the Missouri Supreme Court, in this case, was concerned about the possible ramifications of taking this case and it could have been because this is such an undeveloped area of law,” said John Reeves, an attorney with Reeves Law in St. Louis. “What are the due process requirements for a multi-plaintiff trial? It’s something that is not well developed and is crying out for the U.S. Supreme Court's attention.”
Reeves was the featured speaker at a Federalist Society teleforum this week that focused on the pending litigation.
“Missouri isn't just a red state,” Reeves told the St. Louis Record. “It's probably the reddest of the red states. It is very politically conservative. It's very pro-business but, ironically, that conservativeness does not apply to the Missouri state judiciary. Traditionally, the Missouri state judiciary has one of the most plaintiff-friendly judiciaries in the country.”
Regarding when the SCOTUS would consider Johnson & Johnson's writ of certiorari, Reeves said, "The case has not yet been distributed for a conference. We expect that to happen sometime in June."
Following a six-week trial that ended in July 2018 in St. Louis City Circuit Court, 22 women were awarded $4.69 billion on allegations that Johnson & Johnson’s talc powder had caused cancer.
The Missouri Court of Appeals subsequently cut the award to $2.1 billion.
“St. Louis is not only the most plaintiff-friendly venue in the state but it's also one of the most plaintiff-friendly venues in the entire country,” Reeves said. “No plaintiff's lawyer worth his salt is going to decline to bring a case in the city of St. Louis if there's any way to get to it.”
Reeves filed an amicus brief in support of Johnson & Johnson on behalf of the Missouri Organization of Defense Lawyers.
“This is a non-class action lawsuit that was brought in the city of St. Louis by 20 plus plaintiffs against Johnson and Johnson and one of its subsidiaries,” he said. “However, the vast majority of the plaintiffs are not from St. Louis, to begin with. They don't even live in Missouri. They are from 10 or more different states outside of Missouri.”
The writ of certiorari pending before SCOTUS presents the following issues on appeal.
Whether a court must assess if consolidating multiple plaintiffs for a single trial violates due process, or whether it can presume that jury instructions always cure both jury confusion and prejudice to the defendant.
“The fact that the jury returned an identical verdict for each of the plaintiffs with no variants combined with the fact that it took the judge five hours to instruct the jury shows that this case was inherently confusing,” Reeves said.
Whether a punitive-damages award violates due process when it far exceeds a substantial compensatory-damages award, and whether the ratio of punitive to compensatory damages for jointly and severally liable defendants is calculated by assuming that each defendant will pay the entire compensatory award
“Each individual was awarded about $25 million in actual damages,” Reeves said. “Johnson & Johnson is arguing that the ratio of punitive to actual damages far exceeds what the U.S. Supreme Court has said is normally acceptable in these situations.”
Whether the ‘arise out of or relate to’ requirement for specific personal jurisdiction can be met by merely showing a “link” in the chain of causation, as the Court of Appeals of Missouri held, or whether a heightened showing of relatedness is required, as the Ford Motor Company in Ford Motor Co. v. Montana Eighth Judicial District Court has argued.
"Under U.S. Supreme Court precedent, Johnson & Johnson was entitled to have the case dismissed against the non-Missouri defendants," Reeves added.