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Litigator of the Week: A $72M Save in Talc Case

In the nationwide litigation over talcum powder, Johnson & Johnson turned to Thomas Weaver of St. Louis-based Armstrong Teasdale to overturn a $72 million verdict in Missouri. But a lot more was at stake than $72 million.

In the nationwide litigation over talcum powder, Johnson & Johnson turned to Thomas Weaver of St. Louis-based Armstrong Teasdale to overturn a $72 million verdict in Missouri.

The Missouri Court of Appeals for the Eastern District on Tuesday vacated and reversed the jury award, the first of four verdicts that have slammed Johnson & Johnson over claims that its ubiquitous baby powder caused women to get ovarian cancer. Johnson & Johnson brought in Weaver, group leader of his firm s appellate practice and a former nominee to the Missouri Court of Appeals for the Eastern District, to handle the appeal.

And a lot more was riding on it than a $72 million verdict.

The prejudice is ongoing and extends well beyond the trial of plaintiff s claims, wrote Weaver in his opening brief. These defendants currently face serial trials in the city of St. Louis to resolve all of the remaining plaintiffs claims. If not reversed, the trial court s erroneous rulings will force these defendants to try these cases in an improper forum for years to come.

Other talc verdicts in Missouri have been for $55 million, $70 million and $110 million (all of which Johnson & Johnson has vowed to appeal). This week s win could end up wiping those out, too.

I was retained to work on Fox and other appeals from Missouri judgments, Weaver wrote in an email, referring to the case that got the $72 million verdict, brought by Jacqueline Fox, who died of ovarian cancer in 2015. Our firm was lead on the appeal but, as in most appeals, it was unquestionably a team effort with valuable input from everyone.

Weaver s team included Gene Williams and Mark Hegarty of Kansas City, Missouri s Shook, Hardy & Bacon, and Beth Bauer and Gerard Noce of HeplerBroom in Edwardsville, Illinois. Those lawyers had been regularly involved in trials and jurisdictional battles involving talcum powder, primarily in Missouri.

He had help from former Missouri Supreme Court Judge Ray Price and Jeffery McPherson, both partners at Armstrong Teasdale s St. Louis office, and firm associate Alex Barrett in Jefferson City, Missouri.

Fox, an Alabama woman, was one of 65 plaintiffs in a single case, only two of whom were from Missouri. The majority of the nearly 2,000 women who allege they got ovarian cancer from Johnson & Johnson s talcum powder products have brought claims in Missouri, even though most aren t from there a practice that s permitted under Missouri rules.

Weaver took aim at that practice from the start.

He argued that Fox didn t purchase the products or get injured in Missouri. And he insisted that Fox s claims should have been severed from the case, not joined with other plaintiffs from Missouri in order to establish jurisdiction.

He also cited a Feb. 28 ruling by the Missouri Supreme Court in State ex rel. Norfolk Southern Railway v. Dolan that found Missouri had no jurisdiction over an out-of-state defendant.

Weaver had a host of other arguments. He insisted plaintiff s attorneys hadn t made their case that Johnson & Johnson had failed to warn about the risk of ovarian cancer on its talcum powder products or show Johnson & Johnson s products had caused Fox s diagnosis. And he challenged what Johnson & Johnson has called the junk science that plaintiff s experts introduced at the trial.

But a Bristol-Myers decision was just around the corner. And it was clear that the ruling would determine the outcome of the appeal.

Both parties agree there is a good chance that Bristol-Meyers will address and resolve these issues, he told the panel at the May 10 oral arguments.

Indeed, the panel postponed its decision until the Supreme Court s ruling, which came out on June 19. Bristol-Myers limited the venues where a corporate defendant could be sued. The Supreme Court held that most of the 600 plaintiffs in a case against Bristol-Myers over its blood thinner Plavix had failed to establish specific jurisdiction because there wasn t enough of a link between their claims and California, where they brought their lawsuit.

For the talc litigation, the ruling made it harder for out-of-state plaintiffs to bring their claims in Missouri against New Jersey-based Johnson & Johnson.

After Bristol-Myers, the lawyers from Shook, Hardy & Bacon and HeplerBroom successfully argued for a mistrial in a separate talc case in June, then got a related trial temporarily halted just as it was set to begin on Oct. 16.

But Bristol-Myers wasn t a guaranteed defense win. In fact, courts across the country were coming down on both sides in the month after the ruling.

In a brief filed after Bristol-Myers, Fox s attorney, Edward Chip Robertson, a partner at Leawood, Kansas-based Bartimus Frickleton Robertson, suggested the panel could remand the case for further discovery into a Missouri talc distributor whose connection to Johnson & Johnson might overcome jurisdictional hurdles. Weaver, in his supplemental brief, said it was too late to bring up new evidence.

In its order, the panel acknowledged its authority to remand the case but declined, concluding that Fox provides no Missouri precedent illuminating a procedural path for this court to stay a jury verdict pending re-litigation of facts supporting jurisdiction. Simply put, Judge Lisa Van Amburg wrote, this court declines to remand the case in its advanced posture.

Contact Amanda Bronstad at abronstad@alm.com.