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From Products Liability Law Daily, October 18, 2017

$72M talc verdict against Johnson & Johnson reversed for lack of specific personal jurisdiction

By John W. Scanlan, J.D.

A $72-million jury verdict against Johnson & Johnson in favor of a consumer of body power containing talc who developed ovarian cancer after using the powder was reversed by a Missouri appellate court because specific personal jurisdiction was lacking with respect to the non-resident consumer’s claims. While the present case was on appeal, the U.S. Supreme Court issued a controlling decision requiring a narrower standard for personal jurisdiction for non-resident plaintiffs, but the appellate court could not remand the case to the trial court at this stage of the litigation to further develop the factual record regarding jurisdiction (Estate of Jacqueline Fox v. Johnson & Johnson, October 17, 2017, Amburg, L.).

Johnson & Johnson Consumer Companies, Inc. (JJCC), a subsidiary of Johnson & Johnson, manufactures and sells body powders containing talc. Sixty-five consumers who developed ovarian cancer after using the talc brought claims for strict liability failure to warn, negligence, and other causes of action against Johnson & Johnson and related entities in Missouri state court, alleging that the defendants marketed and sold the talc products knowing that they increased the consumers’ risk of ovarian cancer. Two of those consumers were Missouri residents who bought and used the products in Missouri, while the remaining 63 individuals (including the present plaintiff, who died before trial) were out-of-state plaintiffs who joined their claims to the claims brought by the Missouri plaintiffs. The defendants moved to dismiss the non-residents’ claims for lack of personal jurisdiction, arguing that the companies’ activities in the state did not give rise to the claims of the non-residents. The trial court denied the motion, finding that it was unnecessary for each non-resident plaintiff to establish an individual basis for jurisdiction if a defendant has sufficient minimum contacts with the state.

The present consumer’s claims were severed and tried as a single-plaintiff trial; the jury found Johnson & Johnson liable and awarded her estate $10 million in compensatory damages and $62 million in punitive damages. Johnson & Johnson appealed on twelve grounds, but the appellate court addressed only the personal jurisdiction issue because it was dispositive.

Specific personal jurisdiction. The trial court’s verdict was reversed and vacated because the court lacked specific personal jurisdiction with respect to the non-resident consumer’s claims. While the present appeal was pending, the U.S. Supreme Court decided Bristol-Myers Squibb Co. v. Superior Court of California, in which it held that a non-resident plaintiff must establish an independent basis for specific personal jurisdiction in the forum state, and the fact that resident plaintiffs had sustained similar injuries does not support specific jurisdiction regarding non-resident plaintiffs’ claims [see Products Liability Law Daily’s June 19, 2017 analysis]. The parties agreed that this decision was controlling. The consumer asked the appellate court to remand the case to the trial court for further development of the record regarding jurisdiction under the Bristol-Meyers standard because this standard was narrower than previously required in the state. However, the court agreed with Johnson & Johnson that there was no precedent in Missouri that would allow the court to stay the verdict and "rewind the case" pending re-litigation of facts regarding jurisdiction.

The case is No. ED104580.

Attorneys: Thomas B. Weaver (Armstrong Teasdale LLP) for Estate of Jacqueline Fox. William W. Blair (Sandberg, Phoenix & Von Gontard PC) for Johnson & Johnson.

Companies: Johnson & Johnson

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