Missouri Supreme Court Decision in Talc Case Could Herald Change in Where Mass Tort Litigation May Be FiledMarch 2018
On March 6, 2018, the Missouri Supreme Court declined to review the October 17, 2017 decision by Missouri’s Eastern District Court of Appeals in Fox v. Johnson & Johnson, which had overturned the trial court's $72-million talc verdict against the defendant. The Eastern District found that the trial court lacked personal jurisdiction over Johnson & Johnson for the claims filed by Jacqueline Fox. The decision by Missouri’s highest court, which concerned the first of five major talc verdicts entered against Johnson & Johnson, not only clears the way for Johnson & Johnson’s success in the pending appeals of three other multimillion-dollar verdicts issued by St. Louis City jurors and supports a California trial judge's October 2017 decision to vacate a fifth $417 million verdict, but could herald a fundamental change in how mass tort cases may be litigated.
This decision by the Missouri Supreme Court demonstrates the power and practical effect of the U. S. Supreme Court’s decisions in Daimler AG v. Bauman, 134 S. Ct. 746 (2014) and Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2018). These two rulings fundamentally limit the jurisdictions where a defendant that conducts business nationwide can be sued. For claims that do not arise out of the defendant’s direct contact with the state where the lawsuit was filed, a defendant (like Johnson & Johnson) can be sued only in the state where it is incorporated or the state in which it maintains its headquarters.
Historically, cases involving a broad population claiming injury from the same product or type of product are filed in only a few courthouses across the country. Attorneys for the plaintiffs often select courts based on laws regarding jurisdiction, venue, joinder, statutes of limitations, or damages; beliefs concerning the jurors or judges; or dedicated dockets expediting discovery and trial. Examples abound in the mass tort arena—from asbestos and silica claims to tobacco, pharmaceutical, and medical device litigation—where certain types of lawsuits end up primarily being filed in only a few jurisdictions, rather than where the plaintiff resides.
Johnson & Johnson is incorporated and maintains its corporate headquarters in New Jersey. Its attorneys argued that under Daimler and Bristol-Myers Squibb, it was not subject to jurisdiction in Missouri for claims having no connection to the state. Fox was an Alabama resident with no ties to Missouri. She neither was injured in Missouri nor used any Johnson & Johnson products in Missouri. Rather, Fox and 62 other non-Missouri residents joined in a lawsuit against Johnson & Johnson that was filed by two Missouri residents in the Circuit Court for the City of St. Louis. The Eastern District Court of Appeals relied on these facts when it vacated Fox’s $72-million verdict, stating that in light of Daimler and Bristol-Myers Squibb, the case should not have been tried in a Missouri court.
The U. S. Supreme Court decided Bristol-Myers Squibb at a pivotal moment for Johnson & Johnson—just as the company faced a newly emerging mass tort. After the initial $72-million verdict in Fox, Johnson & Johnson was hit with new talc lawsuits in St. Louis and elsewhere. Several of these lawsuits were wildly successful. Verdicts were rendered against Johnson & Johnson in favor of out-of-state talc plaintiffs on May 17, 2016 ($55 million), November 16, 2016 ($70 million), August 3, 2017 ($110 million), and August 21, 2017 ($417 million). The Bristol-Myers Squibb decision, issued on June 19, 2017, provided Johnson & Johnson with a jurisdictional defense to the mass tort.
Johnson & Johnson is currently appealing the three other verdicts for out-of-state plaintiffs that were rendered by jurors in St. Louis Circuit Court. Now that the decision in Fox is final, these appeals are free to move forward and will likely have results similar to Fox. The cases currently on appeal are:
- Gloria Ristesund v. Johnson & Johnson (Circuit Court Case No.: 1422-CC09012-01), where the jury returned a $55-million verdict in favor of a South Dakota resident on May 17, 2016. (Johnson & Johnson filed its Notice of Appeal to the Eastern District Court of Appeals on September 16, 2016.)
- Deborah Giannecchini v. Johnson & Johnson (Circuit Court Case No.: 1422-CC09012-02), where the jury returned a $70-million verdict in favor of a California resident on November 16, 2016. (Johnson &Johnson filed its Notice of Appeal to the Eastern District Court of Appeals on March 24, 2017.)
- Lois Slemp v. Johnson & Johnson (Circuit Court Case No.: 1422-CC09326-02), where the jury returned a $110-million verdict in favor of a Virginia resident on August 3, 2017. (Johnson & Johnson filed its Notice of Appeal to the Eastern District Court of Appeals on December 11, 2017.)
To date, more than 5,500 talc cases have been filed against Johnson & Johnson nationwide—primarily in California, New Jersey, and Missouri. However, in light of Bristol-Myers Squibb and other jurisdictional rulings, future cases of this type might need to be filed where the plaintiffs actually reside or suffered injury, where the defendant is incorporated or maintains it headquarters.