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Friday, December 6, 2019

Plaintiffs in J&J talc cases hit with major setback; Mo. business leader says attitudes changing for better

By W.J. Kennedy | Jun 21, 2017

Law money 06

ST. LOUIS - Legal experts following the Johnson & Johnson talcum powder lawsuits in St. Louis say that even in the face of Monday’s declared mistrial of one of the cases on jurisdictional grounds, many of the hundreds of other cases will drag on “because so much money is involved.”

At the same time, it will be difficult, if not impossible, for plaintiffs’ attorneys to show the connection to the jurisdiction required under three recent U.S. Supreme Court decisions - most recently where Justices in an 8-1 ruling rejected on jurisdictional grounds a California-based action against Bristol-Myers Squibb, which manufacturers the blood thinner Plavix. Bristol-Myers Squibb is incorporated in Delaware and headquartered in New York.  

That ruling prompted 22nd Circuit Judge Rex Burlison on Monday to declare a mistrial in the Swann v. Johnson & Johnson case that had been under way for a little more than a week.

“In the Squibb case brought in California, even the presence of a Squibb research facility there wasn’t enough for the Supreme Court to show that the state court had jurisdiction,” said professor Michael Wolff at Saint Louis University Law School.

Rather, Wolff and others say the plaintiffs’ attorneys will have to show, in amended pleadings - almost certain to follow - that the plaintiffs are from Missouri (only one of the three in the case before Judge Burlison is), that the product causing the alleged injury was purchased in Missouri, or that the company is headquartered or incorporated there.

Based on comments to other news outlets, the plaintiffs’ firm, Alabama-based Beasley, Allen, Crow, Methvin, Portis & Miles, is expected to center its jurisdictional arguments around the fact that J&J uses a Missouri-based company to package some of its talc products.

Lawyers for J&J meanwhile have said that the Missouri-based packaging company is a contractor, an association that should play no role in establishing a court’s jurisdiction over out-of-state plaintiffs.

The J&J lawyers, moreover, are almost certain to point to Monday’s mistrial declaration as the reason an appeals court should toss five cases the company lost in a lower court.

"We believe the recent U.S. Supreme Court ruling on the Bristol-Myers Squibb matter requires reversal of the talc cases that are currently under appeal in St. Louis," J&J said in a statement.

Monday’s declaration of the mistrial was quickly hailed as a victory by the business community, which has long fought against venue shopping where plaintiffs’ attorneys file actions in jurisdictions known for being disproportionately friendly to plaintiffs.

“We had a package of tort reform bills that were recently approved by the legislature,” said Dan Mehan, President/CEO, Missouri Chamber of Commerce and Industry. “Those legislative victories and this mistrial show that the attitudes are really changing for the better in Missouri.”

Last December, the American Tort Reform Association (ATRA) ranked St. Louis city’s court system number one among its annual listing of “Judicial Hellholes.”

“There’s no amount of additional discovery or depositions that can overcome Justice Samuel Alito’s rather straightforward majority decision (in the Squibb case),” ATRA said in a statement. “Non-Missouri residents will have to file their scientifically groundless talc claims in their home states or where the defendants are incorporated or headquartered.”

On May 30, the U.S. Supreme Court, in another 8-1 ruling, (this one involving BNSF Railway Co.) found that a state court may exercise general personal jurisdiction over an out-of-state corporation only when their “affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” The places where a business is “at home” are the corporation’s place of incorporation and its principal place of business (if different).

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Organizations in this Story

Bristol-Myers SquibbBeasley Allen Crow Methvin Portis & Miles PCAmerican Tort Reform AssociationMissouri Chamber of Commerce & Industry