MISSOURI – The city of St. Louis, Missouri, has traditionally been an unfavorable venue for defendants, particularly for those involved in allegations of personal injury or death due to cancer caused by asbestos or talc exposure. Until recently, these two causative agents – asbestos and talc – were separate materials for purposes of personal injury or wrongful death claims. In July 2018 these two theories merged in the first trial which heard that plaintiffs’ claims of ovarian cancer were caused in part by asbestos-contaminated talc. Despite the history of separate asbestos and talc verdicts, the mammoth billion-dollar verdict issued in July 2018 against Johnson & Johnson dwarfed those issued for prior asbestos or talc claims.
Recent past St. Louis city verdicts in favor of plaintiffs in asbestos claims ranged from over $4 million (Jean Urbach, individually and as representative of the estate of Keith Urbach, deceased, et al. v. 3M Company, et al.), to almost $12 million. The plaintiffs in both of these cases alleged wrongful death due to mesothelioma caused by asbestos. In cases alleging personal injury or death due to talc exposure, unlike the traditional one-plaintiff/hundreds of defendants seen in asbestos lawsuits, talc cases often involve groups of plaintiffs. In Tiffany Hogans et al. v. Johnson and Johnson et al., approximately 64 plaintiffs sued only four defendants – Johnson and Johnson Company, Johnson & Johnson Consumer Companies, Inc., Imerys Talc America Inc., and Personal Care Products Council. All plaintiffs alleged the development of ovarian cancer due to the use of talcum powder.
Nevertheless the verdict range in talc cases is comparable to those seen in asbestos lawsuits. In the Hogans case, a St. Louis jury in September 2016 returned a verdict in favor of plaintiff Deborah Giannecchini and against defendants Johnson & Johnson and Imerys Talc America for almost $3 million in compensatory damages, $65 million in punitive damages against Johnson & Johnson, and $2.5 million in punitive damages against supplier Imerys Talc. To another plaintiff in the same case, the jury also awarded $72 million to the family of decedent Jackie Fox; this amount included $62 million in punitive damages. (Some of these verdicts have been reversed at the appellate level due to lack of personal jurisdiction).
These verdicts are huge to the average individual. Yet these dwarf in comparison to the verdict rendered in one of the first cases brought to trial involving both theories of exposure – asbestos and talc. In July 2018 a St. Louis jury heard one of the first trials involving allegations of the development of ovarian cancer due not just to plain talc, but to talc contaminated with asbestos, and that Johnson & Johnson knew the talc was contaminated but failed to warn consumers about the risks (Ingham et al. v. Johnson & Johnson, et al.). The case originally named approximately 76 plaintiffs and three defendants – Johnson & Johnson, Johnson & Johnson Consumer Companies, Inc,, and Imerys Talc America Inc.
On July 12, 2018, the jury awarded $25 million to each of 22 plaintiffs for a total of $550 million in compensatory damages. Amazingly, the jury then spent less than two hours deliberating punitive damages before returning with a total award of $4.14 billion against defendants Johnson & Johnson ($3.15 billion) and Johnson & Johnson Consumer Inc. ($990 million). Although this equals over $182 million per plaintiff, the parties agreed that St. Louis Circuit Judge Rex Burlison would determine how the punitive damages were to be split amongst the plaintiffs. If split evenly, added to the compensatory damages, each plaintiff may receive over $270 million. This is almost three times larger than the $72 million verdict awarded to the family of Jackie Fox. Johnson & Johnson denies both that its talc products cause cancer and that they ever contained asbestos.
This amount sets a huge precedent for future trials, both in this venue and elsewhere. Johnson & Johnson will likely appeal the verdict, and may file a motion invoking a cap on punitive damages. In certain cases, Missouri law provides for limitations on punitive damages of five hundred thousand dollars or five times the net amount of the judgment awarded to the plaintiff (Missouri Revised Statutes 510.265). However, this cap may be found unconstitutional, as it was in Lewellen v. Franklin, 441 S.W.3d 136, 145 (En banc. 2014). If this cap was enforced, punitive damages would be capped at $125 million, far less than the over $ 4 billion awarded.
The verdict rendered by the city of St. Louis jurors clearly strengthens the desirability of filing in this jurisdiction. Plaintiffs will continue to do so, even if they have little to no connection to this venue. Strikingly, of the approximately 76 plaintiffs named in the original complaint filed in Ingham, Missouri connections were scant; the Complaint lists two plaintiffs from O’Fallon, Missouri, which is about 40 minutes from the city of St. Louis; two plaintiffs from Kansas City, Missouri; two plaintiffs from Grandview, Missouri, which is almost four hours from the city of St. Louis; and one plaintiff from Camdenton, Missouri, which is almost three hours from the city of St. Louis. Remaining plaintiffs stretched from California and Washington to New Jersey and Florida.
Notably, the lack of personal jurisdiction may be an option for future litigation strategy, as the appellate court has been overturning some of the verdicts issued. In Ristesund v. Johnson & Johnson, the jury awarded $5 million in compensatory damages, $15 million in punitive damages against Johnson & Johnson Consumer Products, Inc., and $35 million in punitive damages against Johnson and Johnson ([1] Missouri Revised Statutes 510.265). The Defendants appealed on various grounds, primarily that the trial court erred in denying its motion to dismiss for lack of personal jurisdiction. On June 29, 2018, the Eastern District of the Missouri Court of Appeals agreed, and reversed and vacated the jury’s award. Further, the court refused plaintiff’s request to remand the matter for additional proceedings (Id. at 5).
Time will tell whether various issues – namely, proper venue, punitive damages caps, and jurisdiction – will serve to make this forum less favorable to both asbestos and talc plaintiffs.