In the span of a week, appeals courts in both Missouri and California – two epicenters of the expansive class action litigation against Johnson & Johnson’s talcum powder products – have overturned plaintiff verdicts worth nearly $500 million, dealing a setback to similarly situated plaintiffs across the country.
The verdicts include a $72 million award for a plaintiff in St. Louis Circuit Court awarded in February of 2016, as well as a massive $417 verdict awarded in August of this year in the Superior Court of the State of California, County of Los Angeles.
While plaintiff attorneys in both cases have expressed their intentions to appeal the decisions, the overturning of two landmark verdicts against Johnson & Johnson has dampened the momentum that plaintiff attorneys had gained against the pharmaceutical giant.
$72 Million Verdict Reversal in Missouri
The first verdict to be reversed was one of the early plaintiff victories against Johnson & Johnson – a $72 million dollar award granted to the family of Jacqueline Fox of Alabama by a jury in Missouri’s St. Louis Circuit Court.
Crucially, the appeals court ruled that the verdict could not stand on jurisdictional grounds. Since the beginning of litigation against Johnson & Johnson’s talcum powder products, plaintiff cases from around the country have been filed in the Missouri court under state rules that allowed cases to be combined with those of Missouri residents in order to be heard there.
As a result of this rule, hundreds of out-of-state plaintiffs flocked to the Missouri court, which had gained a reputation of “plaintiff-friendliness” among some legal commentators.
Now, those cases are in jeopardy. The appeals court in Missouri cited a Supreme Court decision in Bristol-Meyers Squibb (BMS), which limited the ability of out-of-state plaintiffs to combine their cases with similar matters in jurisdictions where they were not residents. Similarly situated plaintiffs in Missouri talc litigation may face the same jurisdictional hurdle.
$417 Million Verdict Reversal in California
Meanwhile, another significant verdict was overturned by the Los Angeles Superior Court on October 20th. The $417 million dollar verdict for plaintiff Eva Echeverria, one of the largest this year, consisted of $70 million in compensatory damages in addition to $347 million in punitive damages. In rendering its decision, the court found that there was “a lack of any proper testimony as to specific causation.”
The judge found that a lack of sufficient expert testimony on specific causation linking talcum powder use to the plaintiff’s cancer was a major reason for the decision to overturn the verdict. The only physician who testified regarding the specific causation of the plaintiffs cancer was her treating physician. According to the order, the appeals judge found that the plaintiff’s physician did not provide enough evidence to “rule in” talc as the specific cause of the plaintiff’s cancer, and that the doctors attempts to rule out other potential causes amounted to speculation.
Both reversals may mean trouble for the remaining 836 talc plaintiffs in California courts, 603 of whom are not California residents and may have their claims challenged by jurisdictional arguments similar to those used in Missouri.
While these reversals are a setback for plaintiffs in talc litigation on a state level, the nearly 3,000 plaintiffs currently participating in a federal MDL in Newark may be able to overcome similar arguments by defense counsel.