Opinion: J&J may have a hard time overcoming personal jurisdiction in Missouri

talc justice Opinion: J&J may have a hard time overcoming personal jurisdiction in MissouriIn light of Missouri trial Judge Rex M. Burlison upholding the May 2016 verdict of $110 million in favor of plaintiff Lois Slemp, finding that although she is a Virginia resident her case meets the jurisdictional standards laid out by the U.S. Supreme Court, Law360 addresses the potential future of talc trials in Missouri.

The Supreme Court ruled in June in Bristol-Myers Squibb Co. v. Superior Court of California, effectively changing the previously functioning rules for establishing personal jurisdiction for out-of-state plaintiffs. The trial that had been underway for two weeks on behalf of three women who died of ovarian cancer after using Johnson and Johnson’s talc products ended in a mistrial because two of the three plaintiffs were not Missouri residents. Many wondered what would become of the more than 1,000 claims filed in the City of St. Louis Circuit Court against Johnson and Johnson, many of which were filed by women from other states.

On the day of the ruling, the plaintiffs’ attorneys were given an hour to prepare a response to the defenses’ motion to declare a mistrial.

“In the course of that hour, in searches of documents we uncovered a handful of docs that indeed J&J and [J&J’s talc supplier, Imerys Talc America Inc.,] have been conducting business through a Missouri-based corporation, that being Pharma Tech,” said Ted Meadows of Alabama firm Beasley Allen Crow Methvin Portis & Miles PC, an attorney for Ms. Slemp. Since then further research has shown that Pharma Tech was used to “manufacture, mislabel and package” the talc products at issue in these Missouri cases.

We previously reported that allegations drawn from letters, forms, emails, monthly checks and sales documents included information that Pharma Tech bought raw talc from defendant Imerys Talc America that had a cancer warning, but that the warning was removed per Johnson and Johnson’s direction during the manufacturing and labeling process.

“If you look at the record in each trial to date, the defendants have been very careful to hide the presence and role of Pharma Tech,” said Allen Smith of the Smith Law Firm of Ridgeland, Mississippi, and co-lead counsel for Ms. Slemp. “Now that jurisdiction has been confirmed by the court, future trials will be able to more clearly show the steps J&J has taken to deceive the public and medical community of the dangers of talcum powder use for feminine hygiene.”

One Law360 expert agrees with Judge Burlison’s ruling and the significance of Pharma Tech, saying that this new information should impact the future of talc litigation in Missouri. “On a larger scale, this wasn’t talc made just for this single plaintiff — the manufacturing in Missouri would be true obviously for a substantial number of the plaintiffs, and potentially a majority or all of them,” said Max Kennerly of Kennerly Loutey LLC. “I think this finding really establishes specific jurisdiction for everyone, or almost everyone, just simply how the product was made in Missouri.”

In October the Missouri Court of Appeals overturned an earlier talc verdict, from February 2016, which was well into its appeals process before the Supreme Court decision. The new information about Pharma Tech was not considered in the decision that the state did not have jurisdiction over the suit, brought by the estate of Alabama resident Jacqueline Fox.

Law360 expert Jonathan Sternberg of Jonathan Sternberg PC, an appellate attorney based in Missouri, warns that Johnson and Johnson should not assume that it will get the same result with Slemp when appealing Judge Burlison’s order.

“Here, if this is actually true that the products at issue themselves were manufactured in Union, Missouri … I would counsel any client in that position that they’re going to have a hard time overcoming personal jurisdiction in this state,” Sternberg said.

Fox’s estate has asked the appeals court to reconsider its decision, contesting that they should be allowed to re-argue for jurisdiction under the new law with this new evidence establishing personal jurisdiction in Missouri.

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