Talcum powder litigation update: nationwide and in Louisiana
In an article in the June 2016 issue of Louisiana Advocates, I discussed the history and status of talcum powder litigation. Then, two large verdicts had already been returned against Johnson & Johnson (J&J) for claims by women who alleged that they developed ovarian cancer due to perineal application of various J&J talcum and baby powder products.
Now, almost eighteen months later, there have been several additional verdicts and a landmark U.S. Supreme Court decision.
J&J is currently facing more than 5,500 talc claims in state and federal courts in the United States, including more than 1,000 currently in St. Louis and over 2,500 pending in the MDL in New Jersey.
Here are some key verdicts, reversals, and rulings, including one in Louisiana, that have transpired during the course of talcum powder litigation:
- February 2016: first plaintiff’s verdict. A St. Louis jury awarded $72 million to an Alabama woman’s family.
- May 2016: plaintiff’s verdict. A St. Louis jury awarded $55 million to a South Dakota woman.
- September 2016: Daubert issues for the plaintiff. A New Jersey judge struck several of the plaintiff ’s experts and tossed two talc suits, finding that there wasn’t enough evidence to demonstrate a causative cancer link.
- October 2016: MDL established in New Jersey; another plaintiff’s verdict. The Judicial Panel on Multidistrict Litigation selected New Jersey, the location of J&J’s headquarters, as the appropriate transferee district for MDL talcum powder litigation and Judge Freda Wolfson to preside. Also in that month, a third St. Louis jury hit J&J and Imerys with a $70 million verdict in favor of a California woman.
- May 2017: plaintiff’s verdict. A fourth St. Louis jury awarded over $110 million to a Virginia woman.
- June 19, 2017: Bristol-Myers and a mistrial. In an 8-1 decision, the U.S. Supreme Court overturned a California Supreme Court ruling, which had allowed almost six hundred non-Californians to join eighty-six California residents in a suit against BristolMyers /Plavix for misrepresentation of the risk of heart attacks and strokes. Justice Alito wrote for the majority and stated: “The nonresidents were not prescribed Plavix in California, did not purchase Plavix in California, did not ingest Plavix in California, and were not injured by Plavix in California.” He added, “The mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California — and allegedly sustained the same injuries as nonresidents — does not allow the state to assert specific jurisdiction over the nonresidents’ claims.” The court ultimately held that there had to be a connection between the forum and the specific claims at issue. Bristol-Myers Squibb Co. v. Superior Talcum powder litigation update: nationwide and in Louisiana By Lindsey A. Cheek; The Cheek Law Firm; New Orleans, Louisiana Lindsey Cheek
- December 2017 Louisiana Advocates 23 Court for the Cty. of San Francisco, 137 U.S. 1773 (2017). A few days after the Bristol-Myers decision, J&J, citing the ruling, obtained a mistrial in St. Louis in a talc case in which the families of three women attributed the women’s deaths from ovarian cancer to use of the J&J’s talc products. Two of the families were from other states.
- August 21, 2017: plaintiff’s verdict. A California jury awarded a California woman $417 million. The award included $70 million in compensatory damages and $347 million in punitive damages.
- October 12, 2017: First case remanded to Louisiana state court. U.S. District Judge Freda Wolfson remanded a Louisiana woman’s* lawsuit directly to the Louisiana state court in which it was originally filed, finding that she had alleged sufficient state-law claims against a Louisiana-based drugstore defendant, and because of those allegations, the case did not belong in the MDL or in federal court. In a lengthy opinion, Wolfson shot down J&J’s contention that the plaintiff’s complaint lacked factual allegations linking the Louisiana defendant to plaintiff’s injuries, noting that the original allegations in plaintiff’s petition showed an “actual intention” to pursue claims against the Louisiana defendant as a manufacturer of the J&J talcum products and under a “professional vendor” theory of liability. Almost a year prior to the remand, J&J removed the case, which had subsequently been consolidated into the MDL.
- October 17, 2017: first verdict overturned. J&J won its first appeal and successfully overturned the initial $72 million verdict out of St. Louis. The Missouri appellate court, following Bristol-Myers, found that under the revised standard, “a non-resident plaintiff must establish an independent basis for specific personal jurisdiction over the defendant in the state.”
- October 20, 2017: second verdict overturned. Judge Maren Nelson reversed the $417 million California award and granted J&J’s motions for a new trial. The judge found that there was an “insufficiency of the evidence as to the causation” and ruled that an error in law during the trial, coupled with jury misconduct, led to excessive damages.
Some people anticipate that, due to the U.S. Supreme Court’s holding in BristolMyers, all of the previous verdicts out of St. Louis may be overturned.
Louisiana has very recently become a focal point of this litigation, given it is now the location of the first (and only) remand from the MDL to a state court. Talcum powder litigation in Louisiana, while in its infancy, has the eyes of many upon it, and cases here may set precedent for plaintiffs.
*I represent the plaintiff in the Louisiana case.