By Georgia D. Koutouzos, J.D.
A Missouri trial court has refused to set aside a $110-million judgment for a Virginia woman in a products liability lawsuit against Johnson & Johnson alleging that the company’s talcum powder products had caused her ovarian cancer. Denying multiple procedural challenges to the May 2017 decision in light of subsequent U.S. Supreme Court precedent governing jurisdiction over out-of-state plaintiffs in mass tort actions, the trial court found that the record in the case at bar satisfied the High Court’s stringent standard for personal jurisdiction against Johnson & Johnson and its two co-defendants (Slemp v. Johnson & Johnson, November 29, 2017, Burlison, R.).
A woman who had purchased and used talcum powder products manufactured by Johnson & Johnson for approximately 42 years was diagnosed with ovarian cancer in August 2012. Together with approximately 60 other ovarian cancer patients and/or their estates and survivors, she filed suit against Johnson & Johnson, its consumer products subsidiary, Johnson & Johnson Consumer Companies, Inc., and Imerys Talc America, a company that mined and processed talc for Johnson & Johnson. All the plaintiffs alleged that they suffered personal and pecuniary damages as a direct and proximate result of the unreasonably dangerous and defective nature of talcum powder, and as a result of the defendants’ wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of talcum powder. The complaint alleged causes of action for strict liability failure to warn, negligence, breach of express and implied warranties, civil conspiracy, concerted action, negligent misrepresentation, fraud, wrongful death, and punitive damages.
In May 2017, the jury found in favor of the ailing woman on claims of negligence, conspiracy, and breach of implied warranty against both Johnson & Johnson and Imerys, assessing compensatory damages of $5,401,921.02. In addition, the jury awarded her $66,000,000 in punitive damages against Johnson & Johnson, $39,000,000 against the Johnson & Johnson’s consumer products subsidiary, and $50,000 against the talc supplier [see Products Liability Law Daily’s May 5, 2017 analysis.]
High Court precedent. Weeks later, the U.S. Supreme Court ruled in Bristol-Myers Squibb Co. v. Superior Court of California, 582 U.S. __ (2017), that for a state court to exercise specific jurisdiction over a claim in a mass tort action, there must be an affiliation between the forum and the underlying controversy—principally, an activity or an occurrence that took place in the forum state [see Products Liability Daily’s June 19, 2017 analysis]. When there has been no such connection, specific jurisdiction would be lacking regardless of the extent of a defendant’s unconnected activities in the state, the High Court held.
In light of that precedent, Johnson & Johnson and its co-defendants filed multiple post-trial motions in the case at bar, including motions for judgment notwithstanding the verdict, a new trial, remittitur of the damages awards, and reduction of the punitive damages award. The ailing woman responded by filing a motion to temporarily vacate the order of judgment and open discovery on personal jurisdiction over the defendants. Ruling that her motion was untimely, the court nevertheless found that the issue of personal jurisdiction was proper for consideration given the manufacturers’ timely post-trial motions.
Personal jurisdiction. Citing the High Court’s instruction that there must be an "affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State" for a court to exercise specific jurisdiction over a claim, the trial court noted that there was evidence in the instant case that the talcum powder manufacturers’ conduct giving rise to the 60 plaintiffs’ claims had occurred in Missouri. In that regard, the plaintiffs alleged that the companies had engaged in relevant acts within the state—including the enlistment of a Missouri company to manufacture, mislabel, and package the very products that caused their injuries. Also, the products were manufactured in Union, Missouri, and at another plant in Royston, Georgia, that also was under the control of the enlisted Missouri company.
In addition, the patients alleged that with express notice of the ovarian cancer hazard, the Missouri company (at Johnson & Johnson’s direction) manufactured, processed, bottled, mislabeled, and mispackaged the products at issue. As such, fundamental fairness and due process required that the ailing woman be allowed to make a record that would support personal jurisdiction over the defendant companies in light of the High Court’s decision rendered after the verdict in her favor. Substantial evidence existed in the record before the court to satisfy the stringent standard for personal jurisdiction set forth in Bristol-Myers; therefore, she sufficiently established that personal jurisdiction existed over both the Johnson & Johnson companies and Imerys.
Further, the court held that the ailing woman presented substantial evidence from which the jury could find in her favor on her claims of conspiracy, implied warranty, negligence, and punitive damages; and that the manufacturers failed to show that the jury instructions were erroneous or prejudicial. The woman made a submissible case, the jury’s verdict was a logical conclusion from the evidence presented at trial, and the verdict was not against the weight of the evidence, the court ruled, denying the manufacturers’ post-trial motions.
The case is No. 1422-CC09326-02.
Attorneys: Ted Meadows (Beasley, Allen, Crow, Methvin, Portis & Miles, PC) for Lois Slemp. (Weaver, Thomas Blumeyer) for Johnson & Johnson, Johnson & Johnson Consumer Companies, Inc. and Imerys Talc America Inc.
Companies: Johnson & Johnson; Johnson & Johnson Consumer Companies, Inc.; Imerys Talc America
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