The U.S. Supreme Court on Monday declined to review a St. Louis talcum powder case that requires Johnson and Johnson (J&J) to pay a $2.1 billion award, one of the largest in American history.
“Two billion dollars for anyone has got to be difficult and I wish Johnson & Johnson the best of luck in figuring out how to do this,” said St. Louis attorney John Reeves. “They could file a petition for rehearing on the cert denial but that's almost never granted. I can't remember the last time it was granted. Johnson & Johnson could do that but I'd be very surprised if they did.”
Reeves filed an amicus brief in support of J&J on behalf of the Missouri Organization of Defense Lawyers.
The July 2018 verdict in St. Louis City Circuit Court in Ingham involved 22 women who were awarded $4.69 billion on allegations that Johnson & Johnson’s talc powder caused ovarian cancer.
The Missouri Court of Appeals subsequently cut punitive damages with an award of $2.1 billion.
“It certainly is going to make businesses concerned about having any links with the city of St. Louis going forward for reasons like this,” Reeves told the St. Louis Record.
The June 1 order denying review of J&J’s petition for a writ of certiorari stated that Justice Alito and Justice Kavanaugh took no part in the consideration or decision of their request for review.
“That means that they recused themselves but the order doesn't say why they recused themselves but it's my understanding that one or both Alito or Kavanaugh may have owned some stock in Johnson Johnson,” Reeves said. “I can't say for certain but typically a justice will recuse himself or herself if that's the case.”
Shares of J&J stock dropped only 2.20% to $165.53 on the day SCOTUS issued its decision, according to Marketwatch.
The Missouri Supreme Court also declined to review the case, thereby upholding the decision made by the Eastern District.
“It rejected the argument that these multi-plaintiff trials violated due process and that is now binding in the entire Eastern District so if you have a case similar to Johnson & Johnson that arises with all these multi-plaintiffs coming in and defense counsel tries to argue that it violates due process rights, the trial judge is now bound by the decision even if he agrees with the defense counsel,” Reeves said.
Other binding authorities for similar cases include the following
Punitive damages of $2.1 billion are not excessive.
“It’s sad to say but that's now part of the case law in the Eastern part of the state,” said Reeves. “If a jury makes a similar finding in a later case, there's not much that the appellate court's going to do about, unless the Missouri Supreme court decides to step in and clarify this because they did not take this case. It’s a big problem.”
Plaintiffs can establish a link in the chain of causation for specific personal jurisdiction.
“Several of the non-state plaintiffs did not have enough contact with Missouri to come within Missouri's personal jurisdiction,” Reeves said. “That was one of the issues that, at the time the cert petition was filed, we were most optimistic that the Supreme Court would have granted cert for because the Eastern District did dismiss a few of the non-Missouri defendants.”