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Another Big Talcum Powder Trial Postponed Over Residency Issues

Two weeks after halting a closely watched trial involving 13 women suing over Johnson & Johnson’s baby powder, the Missouri Supreme Court put the brakes on another trial—this time, involving claims made by 24 women.

In a Thursday order, the Missouri Supreme Court preliminarily granted a petition for a writ of prohibition that Imerys Talc America Inc., Johnson & Johnson’s talc supplier, had filed to stop an April 8 trial. In both cases, the women, or their spouses, alleged they got ovarian cancer from longtime use of Johnson & Johnson’s talcum powder products.

The decision, once again, temporarily postponed a case that threatened to be a potential repeat of last year’s $4.7 billion verdict, awarded to 22 women in the first consolidated trial over Johnson & Johnson’s baby powder.

“Imerys Talc America is pleased the Missouri court has ordered the trial court to take no further action while it reviews the merits of whether the Missouri court has personal jurisdiction over the company in this product liability matter,” wrote Imerys spokesman Adam Cubbage. “Imerys Talc America is encouraged by the Missouri Supreme Court’s review of this issue, as the company has maintained throughout this litigation that it is not a proper defendant in Missouri.”

Eric Holland, of St. Louis-based Holland Law Firm, who represents the 24 plaintiffs along with Mark Lanier, of The Lanier Law Firm in Houston, wrote in an email: “These issues need to be finally resolved once and for all so as to stop the continual obstruct and delay tactics of defendants when faced with a jury passing on their conduct.”

The decisions set the stage for the Missouri Supreme Court to address the use of consolidated trials in talcum powder cases before Judge Rex Burlison in St. Louis. Burlison has others scheduled, including an Aug. 5 trial involving 39 women.

Johnson & Johnson praised the Missouri Supreme Court’s recent actions.

“We trust the court will take a diligent look at what has transpired here, against the backdrop of prior trials in St. Louis, because in addition to believing that the science does not support plaintiffs’ claims, it is improper and prejudicial to join so many individuals from various states, with completely different factual and medical circumstances, together in one trial,” Johnson & Johnson spokeswoman Kimberly Montagnino wrote in an email.

The Missouri Supreme Court had denied a similar writ in the consolidated trial that ended in the $4.7 billion verdict last year. On Dec. 19, Burlison refused to toss the record award, citing Johnson & Johnson’s reprehensible conduct.

In both writ petitions, the defendants had argued that many of the plaintiffs did not belong in St. Louis because they didn't live there. Many of them did not even come from Missouri. More importantly, they argued, neither Imerys, based in California, nor Johnson & Johnson, based in New Jersey, had sufficient connections to Missouri that overcome the U.S. Supreme Court’s 2017 decision in Bristol-Myers Squibb v. Superior Court, which made it harder to establish n personal jurisdiction in mass tort cases involving defendants and plaintiffs outside a court’s home state.

“There is no evidence Relator participated in any activity within the state of Missouri or directed any activity towards the residents of Missouri from which plaintiffs’ alleged injuries arise,” wrote Imerys attorney Susan Robertson, of The Robertson Law Group in St. Louis, in the petition.

Imerys also cited rulings in 2017 and 2018 by the Missouri Court of Appeals reversing talcum powder verdicts of $55 million and $72 million in light of Bristol-Myers, and the Missouri Supreme Court’s order halting last month’s trial.

Holland, in the plaintiffs’ Jan. 25 response brief, called references to last month’s trial a “red herring” given the numerous factual differences in his case that established a Missouri connection. In particular, he wrote, two of the plaintiffs bought and used Johnson & Johnson’s talc products in Missouri. The 22 other plaintiffs were from other states, he wrote, but six of them testified to buying the products in Missouri and 12 testified that they had used Johnson & Johnson’s Shower to Shower Shimmer Effects, a short-lived talcum powder product.

That’s important because the plaintiffs are relying on evidence about Pharma Tech, a family-owned manufacturer of pharmaceutical powders based in Athens, Georgia, that has a plant in Union, Missouri. Imerys sold talc to Pharma Tech from 2004 to 2008, including for use in Johnson & Johnson’s Shimmer product.

In an earlier email to law.com, Holland insisted that such a “mountain of evidence” withstood Bristol-Myers.

“Imerys knew its talc contained asbestos, and knew the talc it sold to Pharma Tech would be used for the products,” Holland wrote in the plaintiffs’ brief. “As a result of Imerys’s Missouri activities, the dangerous talc products were manufactured and distribute to plaintiffs’ home states, and purchased and applied by plaintiffs, who consequently developed ovarian cancer.”

The Missouri Supreme Court heard oral arguments on a similar issue a year ago in an individual case involving the widow of a woman who lived in St. Louis County but not in the city of St. Louis. The court has yet to rule in that matter.

Women or their spouses have filed more than 10,000 lawsuits, most consolidated in multidistrict litigation in New Jersey federal court. In 2016 and 2017, St. Louis juries in Burlison’s courtroom awarded verdicts ranging from $55 million to $110 million to individual plaintiffs, many of whom lived outside Missouri.