Talc Cases Will Likely Stay in MO Despite Supreme Court Decision, Says Lead Lawyer
Mesh Medical Device News Desk, June 24, 2017 ~ SCOTUS Decision Leads to Mistrial in Latest Talc Case in St. Louis, Mo.
A Missouri judge declared a mistrial Monday, June 19, in a lawsuit filed by the estates of three women who had died from ovarian cancer, allegedly after using Johnson & Johnson’s talc-based hygiene products.
Judge Rex Burlison, in the 22nd Circuit Court in St. Louis, granted the J&J motion for a mistrial after a U.S. Supreme Court 8-1 decision that dealt a blow to injured consumers and their law firms by limiting where their complaints against companies can be heard.
The Supreme Court decision was based on another issue, in another court – the blood-thinner Plavix, a drug made by Bristol-Myers Squibb Co. The court ruled California courts are the proper venue only for claims made by Californians, essentially eliminating what’s known as forum shopping. MND has more on the mistrial here.
The California Supreme Court allowed the proceedings in California because Bristol had sold more than 180 million Plavix pills in that state which generated more than $900 million in sales, reports the Wall Street Journal.
Also the distributor for Plavix is located in California, however, it is not the only distributor of Plavix.
Judge Samuel Alito said that was not enough to allow plaintiffs to consolidate in favorable courts calling it, “a loose and spurious form of general jurisdiction.”
The plaintiffs did not use the drug in California, and were not injured there either. Therefore that “does not allow the state to assert specific jurisdiction over the nonresidents’ claims.”
Justice Sonia Sotomayor was the only dissenting vote.
She wrote, “There is nothing unfair about subjecting a massive corporation to suit in a state for a nationwide course of conduct that injures both forum residents and nonresidents alike.”
As soon as the Monday morning Supreme Court decision came down, the lawyer who represented the plaintiffs in the latest St. Louis talcum powder- ovarian cancer trial, says Johnson and Johnson counsel broke out in celebration in the open courtroom in front of the families of the deceased plaintiffs.
TED MEADOWS and the FUTURE OF TALC CASES
Ted Meadows, represented the estates of the late plaintiffs in women in the Missouri wrongful death cases of Swann, et al. v. Johnson & Johnson, et al., No. 1422-CC09326-01.
He told Mesh News Desk he is optimistic the litigation can go forward in Missouri courts.
His team at Beasley Allen, the lead law firm in talc/cancer litigation, will conduct additional discovery and depositions to support that position.
“We were starting week two of evidence after picking the jury the previous week. It was supposed to be a six-week trial. When the Supreme Court decision came down redefining the specific jurisdiction in the country, it put into question whether or not our previous basis for establish jurisdiction was enough.
“The judge felt like we were still less than one-third of the way through the trial, it would be more efficient to grant the defendant’s motion for a mistrial and give us time to conduct discovery for a full briefing whether we have jurisdiction in Missouri, then go through the entire trial.”
A J&J spokeswoman, Carol Goodrich said in a statement the company applauds the judge’s decision.
“Johnson & Johnson consistently and repeatedly objected to the lack of jurisdiction, argued that the trials should not go forward and urged a stay of proceedings because there was no jurisdiction.”
Meadows says there is reason to believe Missouri is the proper venue because a the bottling company for Johnson & Johnson and Imerys Talc America, a San Jose, Ca.-based talc mining company and the only supplier of talc, is based in Missouri.
Pharma Tech, is in Union, Missouri. Pharma Tech is not currently named as a defendant in this case.
See MND on Where is Talc Mined here.
Essentially, Meadows believes the SCOTUS decision provides a roadmap for what needs to be included in this and future complaints.
Judge Burlison is a solid judge, says Meadows, who doesn’t agree with this decision.
“I think it’s an especially incorrect in a modern world where corporations are all over the place. They are capable of being all over the place on internet, mass marketing.”
Missouri Joinder Rules
There are 1,700 pending talc lawsuits pending in Missouri.
Plaintiffs allege the company withheld knowledge about talc’s link to cancer, specifically ovarian cancer. In Missouri, the joinder rules allow for nonresident plaintiffs to file lawsuits in mass tort cases there if they suffer from similar circumstances related to the defendant corporation.
Meadows is confident they will be able to complete discovery and establish that Missouri is the proper jurisdiction. Judge Burlison apparently has some confidence too. He has set October for the date for this trial to continue.
This was only the second victory for J&J in the Missouri courtroom, which has been the venue for more than $300 million in plaintiff awards in four of the previous five talc trials in St. Louis. Most of the awards come from punitive damages.
Meadows believes litigation can continue in the St. Louis court, but if not, new venues can be sought.
On the broader issue of jurisdiction, interestingly, Bristol-Myers Squibb is incorporated in Delaware, where corporations enjoy favorable tax laws and a bias against regulation, even though its businesses are in New York and New Jersey, raising questions about its own chosen venue for incorporation.
Meanwhile, talc litigation continues.
The next talc trial is set for an evidentiary hearing next week with jury selection set for July 10 in Los Angeles. There is just one plaintiff on trial, Eva Echeverria, a woman from California (Case No. BC628228, in Superior Court of California, Los Angeles Co).
Courtroom View Network plans to webcast those proceedings gavel-to-gavel as it did for the recent trials in Missouri.