The Missouri Supreme Court has temporarily halted an upcoming trial of 13 women or their spouses who allege that Johnson & Johnson’s talcum powder products caused their ovarian cancer.
Monday’s order sustained a petition for a permanent writ of prohibition filed by Johnson & Johnson to stop the trial, which was to begin in St. Louis with opening statements on Tuesday. Jury selection was to start this week.
The trial would have been the second ovarian cancer case against Johnson & Johnson to involve multiple plaintiffs, the first of which ended with a $4.7 billion verdict last year. Several more trials involving multiple plaintiffs are scheduled for this year. Last year’s verdict, for 22 women or their spouses from 13 states, proved that consolidating so many plaintiffs into a single trial would confuse and mislead the jury, resulting in gargantuan verdicts, Johnson & Johnson attorney Beth Bauer wrote in the petition.
“Unsurprisingly, this patently unconstitutional trial ended in exorbitant, nearly identical jury verdicts for each of the plaintiffs despite the significant differences in their claims and extent of their alleged injuries,” wrote Bauer, a partner at HeplerBroom in Edwardsville, Illinois. “It is almost inevitable that the same result will occur if the plaintiffs’ claims are tried together here.”
In a statement, Johnson & Johnson spokeswoman Kimberly Montagnino praised the Missouri Supreme Court’s order.
“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,” she wrote.
Representing Johnson & Johnson in the upcoming trial were James Smith of Blank Rome in Philadelphia, Debra Pole of Sidley Austin in Los Angeles, and Allison Brown of Weil, Gotshal & Manges in Princeton, New Jersey.
Ted Meadows of Beasley, Allen, Crow, Methvin, Portis & Miles, who led the plaintiffs’ team, declined to comment.
The trial is the latest linking Jonson & Jonson's baby powder and Shower to Shower products to ovarian cancer. Women or their spouses have filed more than 10,000 lawsuits, most consolidated in multidistrict litigation in New Jersey. In 2016 and 2017, St. Louis juries awarded verdicts ranging from $55 million to $110 million, many against plaintiffs outside Missouri and some reversed on appeal.
On Dec. 19, 22nd Circuit Court Judge Rex Burlison, who has presided over most of the trials, refused to toss the $4.7 billion award, citing Johnson & Johnson’s reprehensible conduct.
The Missouri Supreme Court had denied a similar writ from Johnson & Johnson to halt that trial. In both cases, Johnson & Johnson had argued that several plaintiffs should be severed from the case and transferred to another venue.
The Missouri Supreme Court heard similar arguments last year in another case, originally involving three plaintiffs that went to trial in 2017, two of whom were not from Missouri. Burlison had declared a mistrial after the U.S. Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court made it harder for plaintiffs to sue in states outside their own. The Missouri Supreme Court granted Johnson & Johnson’s petition for writ of prohibition as to the sole remaining plaintiff, a Missouri resident, who was about to begin a new trial. Johnson & Johnson insisted that the plaintiff, Michael Blaes, whose wife died of ovarian cancer in 2010, was not in the right venue because he was from a town in St. Louis County, not St. Louis. Oral arguments focused on Missouri’s rules that permit, in certain circumstances, multiple plaintiffs to be joined in the same case and tried in the same venue.
The court has yet to rule on that matter.
Johnson & Johnson’s recent petition, filed on Jan. 9, comes after Burlison rejected its motion to sever all but the St. Louis resident, Vickie Forrest, from the case and transfer them to another venue for trial. A Missouri Court of Appeals rejected Johnson & Johnson’s petition on Jan. 7.
Johnson & Johnson’s petition before the Missouri Supreme Court called Burlison’s order an “abuse of discretion.” The petition noted that the women in the upcoming trial had different types and stages of ovarian cancer and varied personal histories, and that the plaintiffs’ experts had pathology evidence as to some, but not all, of them. A consolidated trial also would involve a “mountain of evidence” and lengthy jury instructions on nine separate state laws.
“If respondent were correct, he would have a magic bullet for resolving mass tort cases—thousands of claims could proceed in one trial,” Bauer wrote of Burlison. “Clearly, however, that would be neither fair nor practicable, and the line must be drawn somewhere. Relators firmly urge the court to hold that line must be drawn at far less than 13 plaintiffs’ claims.”