ST. LOUIS – The latest lawsuit in the nation's controversial talc-related litigation center is set to begin in St. Louis next month with more than 60 women and family members seeking damages against New Jersey-based Johnson & Johnson.
Swann vs Johnson & Johnson et. al., which combines the claims of mostly non-residents of Missouri, is expected to begin Feb. 6 before Judge Rex Burlison in Missouri's 22nd Judicial Circuit Court at the Carnahan Courthouse in St. Louis.
The trial date was set after Johnson & Johnson attorneys failed to get an appeals court to deny jurisdiction in the case for the 22nd Circuit Court to hear cases of out-of-state plaintiffs. Most of the plaintiffs with claims against Johnson & Johnson in Missouri courts are not residents of the state.
On Jan. 3, Chief Judge Angela T. Quigless issued a one-page order denying Johnson & Johnson's jurisdictional appeal.
Over the last few years, St. Louis Circuit Court has become known for being plaintiff-friendly, as seen by an increase in product liability and asbestos litigation. In a Sept. 29 article, Bloomberg Business referred to St. Louis as the "New Hot Spot for Litigation Tourists" with "a reputation for fast trials, favorable rulings, and big awards."
St. Louis was identified as a “judicial hellhole” by the American Tort Reform Association in its most recent report of the same name, saying St. Louis is very attractive to out-of-state plaintiffs for Missouri's lax standard for expert testimony and laws that allow for ease of forum shopping.
Things could change given the recent election of Missouri Governor Eric Greitens, who mentioned the dubious 'hellhole' distinction in his first State of the State address. Greitens is a strong supporter of tort reform, including advocating for the adoption of the more exacting Daubert standard for expert evidence and an end to "junk science" lawsuits.
Litigating the link between talc and ovarian cancer
Talc cases have become so lucrative, that Mass Torts Made Perfect conference in October, in the Bellagio Hotel Grand Ballroom in Las Vegas, offered tips for plaintiff and venue selection for the most friendly courts and the highest awards.
"The epidemiology is already there," James B. Matthews III, an attorney with Blasingame Burch Garrard & Ashley in Athens, Ga., told trial lawyers attending the conference. "You have to work to prove specific causation in these cases. You have to get the pathology, then you have to have good experts to explain these things. You need to be able to find the talc in the cells on the pathology slides but you've got to have somebody who can explain what that means."
A St. Louis Record request to Johnson & Johnson seeking comment was not answered. However, a page on the company's website maintains that talc is accepted as safe for use in cosmetic and personal care products by the European Union, Canada and many other countries, including Argentina, Brazil, China, India, Israel, South Africa, Turkey and Indonesia.
The website also points out that talc in consumer products has been asbestos-free since the 1970s and that Johnson & Johnson's baby powder products contain only U.S. Pharmacopeia grade talc. "The U.S. Centers for Disease Control and Prevention (CDC), which identifies potential risk factors for many diseases, has not identified talc as a risk factor for ovarian cancer," the website says.
Johnson & Johnson also cites two widely accepted studies, Harvard School of Public Health's "Nurses’ Health Study", published in 2009, and the U.S. National Institutes of Health's Women’s Health Initiative Observational Cohort, published in 2014. Both found no association between talc and ovarian cancer.
The latest data available, published in 2015 by the independent Cosmetic Ingredient Review Expert Panel, referred to talc as "safe in the present practices of use and concentration described in this safety assessment.”
Last summer, and outside counsel for Johnson & Johnson said there were strong grounds for appeals against multimillion-dollar jury verdicts linking talcum powder and ovarian cancer.
However, those scientific findings have not been able to counter opposite findings claimed by plaintiffs' attorneys in various legal venues. In 2015, juries in St. Louis handed down separate verdicts against Johnson & Johnson of $55 million, $70 million and $72 million respectively. Johnson & Johnson faces hundreds of similar lawsuits and the pressure is great to settle those lawsuits rather than use science to defend itself in court.