Johnson & Johnson filed its final brief last week in hopes the U.S. Supreme Court will grant its petition for a writ of certiorari in the whopping $4.69 billion talcum powder verdict awarded in St. Louis City Circuit Court in July 2018.
The company seeks relief from the judgment - later reduced by a state appeals court to $2.1 billion - awarded to 22 women who claimed they developed ovarian cancer from using J&J talcum powder products that allegedly contained asbestos.
That verdict was the largest in a string of courtroom victories plaintiff lawyers have won against J&J, based on hotly disputed allegations that talcum powder contains asbestos fibers that can cause ovarian cancer and mesothelioma, a cancer of the pleural lining that is usually associated with industrial exposure to asbestos.
J&J attorneys maintain there is no asbestos in the company's products.
“This is unfortunately in line with the direction the court is going as of late," said Tiger Joyce, president of the American Tort Reform Association (ATRA).
"The Missouri Supreme Court has a recent propensity for expanding liability through decisions like this, which is very concerning given that the City of St. Louis is perennially named a Judicial Hellhole by the American Tort Reform Foundation,”
Joyce said that if the Court grants certiorari and reviews the decision in Johnson & Johnson v Ingham, the justices will have an opportunity to review a number of issues that went wrong in the lower courts.
“From the joinder of multiple cases with different facts and relevant laws into one case to the admission of 'junk science' as expert evidence, down to whether Missouri was the proper venue to begin with, considering that more than 75% of the plaintiffs were from out-of-state, the case desperately needs review,” Joyce said.
ATRA is among the organizations that filed an amicus brief in support of Johnson & Johnson.
“We called on the Supreme Court to provide guidance to establish due process limitations on the use of 'joinder,' or the joining together of several parties in one lawsuit,” Joyce said. “We believe that of the many issues surrounding the case, this is the most important for the Supreme Court to weigh in on.”
The use of joinder typically is permissible if the legal issues and the factual situation are consistent for all parties, but the Ingham case involves 22 plaintiffs, each of whom has different medical backgrounds and outcomes.
“Allowing these dissimilar cases to be heard together as one suit means fact patterns and claims are repeated numerous times, creating an uneven playing field that favors plaintiffs and compromises the defendant’s ability to present individual issues,” Joyce said.
The practice also forces defendants to use limited resources to address issues that affect the entire proceeding, rather than attending to each plaintiff individually, according to ATRA’s brief.
“There were approximately 400 separate jury instructions which took five hours to be read to the jury,” Joyce added.
A decision is expected in June on whether the Supreme Court will hear the appeal.
Johnson & Johnson's petition 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.
-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
-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.