$72 Million Talc Case Tossed on Appeal

Jacqueline Fox, National Law Journal

Mesh Medical Device News Desk, October 18, 2017 ~ In the first of its kind, a talcum powder ovarian cancer case that resulted in a $72 million verdict, has been tossed by an appeals court.

The reason- she was not from St. Louis or Missouri where the case was heard.

The case of Jacqueline Fox, 62, was the first in a succession of similar cases - all claiming that Johnson & Johnson's body powders had caused their ovarian cancer and yielding $300 million in verdicts against the healthcare giant.

Ms. Fox died from ovarian cancer in October 2015, two years after her diagnosis. Her son, Marvin Salter of Jacksonville, Fl. took over as the plaintiff.

The talcum powder is sold as Johnson’s Baby Powder and Shower-to-Shower. Her son said the talcum powders were bathroom staples for years and just became second nature like brushing your teeth.

Of the jury award, issued in February 2016, $10 million was in actual damages, while $62 million was awarded in punitive damages, intended to send a message to the company about its behavior.

It took jurors four hours to deliver their 10-2 decision against J&J on claims of failure to warn, negligence and conspiracy. The jury foreman says the company’s internal documents were “decisive” in their decision.

“It was really clear they were hiding something,” said Krista Smith of St. Louis. She added all they had to do was warn consumers in their label, but the company did not.

JURISDICTION

In vacating the decision, the Missouri Appeals Court Tuesday decided 3-0 on a question of jurisdiction. Here is the Opinion, filed Tuesday, October 17.

In June, the U.S. Supreme Court decided that a plaintiff must reside in the state, or the defendant company must do business in the state where the action is brought. Read MND story here. It's known as the Bristol Myers Squibb (BMS) decision.

Fox was a resident of Birmingham, Alabama. Johnson & Johnson is based in New Brunswick, New Jersey, though lawyers argued that it distributes, markets and sells its products nationwide. Pharma Tech, packages and labels talcum powder and is located in Union, Missouri.

The St Louis Post Dispatch reports (here)

The appeals court ruling Tuesday vacated Fox’s lawsuit entirely instead of sending it back to the circuit court, finding the court has no authority to “rewind the case so as to supplement the pre-trial record to establish jurisdiction under the new standard.”

The decision to vacate the Fox award, puts into question the other 1,000 cases pending in the Missouri Eastern District Court, which hears similar talcum powder/ovarian cancer cases in St. Louis.

Not all of the pending cases have been filed by plaintiffs who reside in Missouri and J&J plans on aggressively challenging jury verdicts for out-of-state plaintiffs. See the Fox Complaint representing 64 plaintiffs here.

The Associated Press reports the company believes it will be successful.

"In the cases involving nonresident plaintiffs who sued in the state of Missouri, we consistently argued that there was no jurisdiction and we expect the existing verdicts that we are appealing to be reversed," spokeswoman Carole Goodrich said in a statement.

Shawn Blaes

SHAWN BLAES

J&J has taken advantage of the uncertainly around the Bristol Myers Squibb Supreme Court decision to challenge the closely-watched ovarian cancer case of the late Shawn Blaes.

MND has the story here.

The trial of the estate of the late woman, from St. Louis County, was set to begin Monday, October 16, again blaming the ovarian cancer that killed her on her decades long use of J&J talcum powder.

The National Journal reports (here) the Missouri Supreme Court halted the trial of Shawn Blaes after J&J filed a writ of prohibition to stop the proceedings.

A writ directs the lower court to desist or show cause why it should be allowed to proceed.

Judge Rex Burlison who oversees the talcum trial, had denied a J&J request to move the closely watched Blaes case out of his court.

Judge Burlison has until November 13 to show why his denial should not be vacated. ###

LEARN MORE:

This same court has been the venue for five talcum powder trials product liability trials.

• May 2017- Jury award of $110 million in compensatory and punitive damages. Lois Slemp, 62 of Virginia used baby powder and Shower to Shower for more than 40 years. Her ovarian cancer, diagnosed in 2012, has spread. See MND coverage here.
• March 2017 – Jury ruled in favor of J&J. Plaintiff Nora Daniels, 55, was awarded nothing. MND coverage here.
• October 2016 – Johnson & Johnson paid nearly $70 million to Deborah Giannecchini, 63, of Modesto, CA, co-defendant ordered to pay $2.5 million. She was diagnosed with stage 4 ovarian cancer. One jurors told Bloomberg News about J&J, “It seems like they didn’t care.” An appeal is planned. See MND coverage here. Courtroom view Network covered the trial here.
• May 2016 – J&J ordered to pay $55 million in compensatory and punitive damages to Gloria Ristesund of South Dakota. She used J&J powder for feminine hygiene for about 40 years. J&J should have put a warning on this product, said one juror.
• February 2016 – Jackie Fox, 62, of Birmingham, AL, was awarded $72 million. She died of ovarian cancer in 2015. MND story here.