Out-of-state claims argument quashed in mesh, talc litigation

lawsuit gavel scales of justice Out of state claims argument quashed in mesh, talc litigationIn response to the U.S. Supreme Court’s decision in January to take up two jurisdiction related appeals, Boston Scientific Corp. and Johnson and Johnson unit Ethicon Inc. both filed motions arguing that the results of these pending appeals could force out-of-state plaintiffs out of the Philadelphia County pelvic mesh mass tort program.

This consolidated litigation has been handling allegations of injuries caused by defective pelvic mesh products since February 2014, and Ethicon has had to pay damages of $26 million after losing two trials. Ethicon hoped to stay 106 cases by out-of-state plaintiffs, mentioned in its motion, and BSC, six.

However, according to Law360, on April 18, Judge Arnold New in the Philadelphia County Court of Common Pleas issued an order rejecting arguments by both companies.

One of the appeals involved Bristol-Myers Squibb Co.’s blood-thinner Plavix and suits brought against it in the state of California by almost 600 out-of-state residents. The California State Supreme Court ruled to allow these lawsuits. The second involves BNSF Railway Co. The Montana Supreme Court allowed two out-of-state claims against the railway company to be filed in Montana by injured workers.

Defendant Imerys Talc America recently tried to use a similar argument involving talc litigation in Missouri, where there are more than 1,000 claims pending many from out-of-state plaintiffs. After a Feb. 28 Missouri Supreme Court ruling regarding Norfolk Southern Railway Co. in which the court found that the state does not have jurisdiction over an injury that happened out of state, Imerys filed a brief in support of the post-trial motion it had already filed.

Imerys was held liable for a portion of the $70 million verdict awarded to the plaintiff in the third Missouri talc trial, Deborah Giannecchini, finding both Imerys and Johnson & Johnson liable for Ms. Giannecchini’s ovarian cancer related to genital talcum powder use.

According to the St. Louis Record, “In St. Louis earlier this year, both Imerys and Johnson & Johnson filed post-trial motions arguing against the $70 million award and asking for judgment, for a new trial and to reduce the ‘unconstitutionally excessive punitive damage award.’”

Judge Rex M. Burlison of the 22nd Circuit Court of St. Louis, who has presided over all four of Missouri talc trials and is presiding over the one that is currently in progress, was not swayed and rejected all arguments in the Imerys motion on March 13. According to the St. Louis Record he stated that “the jury’s $67.5 million punitive damage award was ‘not grossly excessive nor arbitrary.’”

So far in St. Louis, juries have awarded nearly $200 million in damages to women who have allegedly developed ovarian cancer as a result of years of using talc for feminine hygiene. Johnson and Johnson has tried and failed multiple times to argue against the jurisdiction of the 22nd Circuit Court in St. Louis to hear the cases, as many of the pending plaintiffs are not Missouri residents. Most recently, less than two weeks before the beginning of the February trial, the Missouri Supreme Court rejected the company’s request to deny jurisdiction.

The fifth talc trial is currently underway and future trials are set for June and July in St. Louis.

St. Louis Record