MO Appeals Court Vacates $72 Million Talc Cancer Verdict for Non-Resident Plaintiff Posted on October 18, 2017 by Larry Bodine A family photo of Jacqueline Fox and her son, Marvin Salter. The Missouri Court of Appeals vacated a $72 million verdict against Johnson & Johnson, ruling that the trial court could not take jurisdiction over the company because its activities in Missouri did not give rise to the claims of the non-residents who bought and used its products elsewhere. In February 2016, a St. Louis Circuit Court jury awarded $72 million to the family of Jacqueline Fox of Birmingham, AL, who used Johnson’s baby powder for 35 years. She was diagnosed with ovarian cancer in 2013 and died last year. Fox was one of 63 out-of-state plaintiffs who sued J&J under Missouri Rule 52.05, which allows non-residents to join resident plaintiffs when all their claims arise out of the same transactions or occurrences. J&J is incorporated and headquartered in New Jersey. Missouri courts historically have exercised personal jurisdiction over defendants as to joined non-residents’ claims so long as jurisdiction exists as to the residents’ claims. Consistent with this practice, the trial court determined that specific personal jurisdiction existed, reasoning that J&J’s alleged conduct satisfied Missouri’s long-arm statute (§506.500) and minimum contacts. Reversal due to Bristol-Myers Ruling The appeals court reversed and vacated the verdict based on the 2017 U.S. Supreme Court decision in Bristol-Myers Squibb Co. v. Superior Court (BMS) that a non-resident plaintiff must establish an independent basis for specific personal jurisdiction over the defendant in the state. In BMS, a group of more than 600 plaintiffs, mostly non-residents, sued BMS in California for injuries allegedly caused by the drug Plavix. The California courts had rejected BMS’s challenge to personal jurisdiction on the non-residents’ claims, reasoning, similar to the Missouri trial court, that BMS’s extensive contacts in the state supported jurisdiction, particularly because the non-residents’ claims were similar to residents’ claims. The U.S. Supreme Court reversed, holding that specific personal jurisdiction requires a connection between the forum state and the specific claims at issue. “When there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the state.” 137 S.Ct. at 1781. The Missouri appeals court said, “The fact that resident plaintiffs sustained similar injuries does not support specific jurisdiction as to non-resident claims.” The ruling could overturn three other recent St. Louis jury verdicts of more than $200 million combined against the New Jersey-based health care giant, which has also appealed the cases. The plaintiffs in the talc cases allege strict liability for failure to warn, negligence, breach of express and implied warranty, civil conspiracy, concert of action, and negligent representation, alleging that Johnson & Johnson marketed and sold its talc products knowing that they increased consumers’ risk of ovarian cancer.
