Lawsuits involving health care giant Johnson & Johnson that have been litigated for years in St. Louis have reached the Missouri Supreme Court in Jefferson City.
The company has lost several cases and hundreds of millions of dollars in damages while having one judgment reversed in its favor.
It’s now appealing a lower court decision over its objection to allowing multiple plaintiffs to join together in a single case in the city of St. Louis. The common thread among the lawsuits is they all involve women who developed ovarian cancer after their use of New Jersy based Johnson & Johnson’s talcum powder.
The Show-Me State high bench is now considering the case of Shawn Blaes, a St. Louis-area woman diagnosed with ovarian cancer in 2008 who died in 2010 at age 50. Ms. Blaes was a regular user of Johnson & Johnson’s talc-based products for feminine hygiene for more than 30 years.
Michael Bleas, Shawn’s husband, started legal action in 2014 in St. Louis County, where Shawn Blaes was first exposed to the products. Johnson & Johnson then moved the case to federal circuit court, where a judge scheduled a two-week trial to start in March 2016.
Shortly thereafter, Blaes filed a motion for voluntary dismissal in the federal case, a move Johnson and Johnson contends he made because of a favorable result in a local venue. The St. Louis City Court had just awarded the family of deceased Johnson & Johnson talcum powder user Jacqueline Fox $72 million in damages.
The federal court granted the motion for dismissal which was upheld on appeal, and Blaes then joined the underlying litigation in St. Louis City that included the Fox family and dozens of other plaintiffs in what’s known as the Swann case, named after the original plaintiff, Valerie Swann, who was from St. Louis City.
Blaes’ case, along with claims by two non-Missouri families, first went to trial in June 2017. But after one week, Johnson & Johnson successfully argued for a mistrial, relying on a June 19 decision issued by the U.S. Supreme Court.
That ruling in the Bristol-Myers Squibb v. Superior Court of California case placed restrictions on out-of-state plaintiffs and on lawsuits taking place outside a defendant company’s home state.
While granting the mistrial, St. Louis presiding Judge Rex M. Burlison called for further discovery about Pharma Tech LLC, a contractor based in Franklin County west of St. Louis that packages and distribution of Johnson’s Baby Powder.
Judge Burlison then ordered the Blaes case to be rescheduled and tried separately. Johnson & Johnson, along with its distributor co-defendant, Imerys Talc America, filed to have the Blaes case severed from the St. Louis City Court and to have its venue moved to the St. Louis County Court.
It argued that the county was the only proper location since it’s where Shawn Blaes had used the talc-based product. It further stated that once the Blaes case was given its own separate trial, it should no longer be part of the original Swann case with the dozens of other plaintiffs.
Judge Burlison denied the defendants’ motion. The Appeals Court of Eastern Missouri then refused a request by Johnson & Johnson and Imerys to hear the case, but the state Supreme Court granted a request.
Representing Johnson & Johnson before the high court Tuesday, attorney Thomas Weaver claimed St. Louis became a default venue after dozens of out-of-state cases were lumped together with one that originated in the city. “You have multiple independent plaintiff claims that have been joined,” said Weaver. “We don’t think (they’re) properly joined, and that joinder has been used to create a venue.”
Arguing for Judge Burlison’s decision favoring the Blaes case remaining in St. Louis, attorney Edward Robertson said current law doesn’t call for it to be severed from the City Court. “The issue here is, is there silence as to what happens in this circumstance,” said Robertson. “We say there is silence. This court has said silence does not create an ambiguity.”
Robertson himself is a former Missouri Supreme Court chief justice, having served on the high bench for 14 years in the 1980’s and 1990’s.
Judge Burlison’s legal team further defended his action to separate proceedings such as the Blaes lawsuit and try them separately as “bellwether cases”. In court documents, Robertson wrote that “the use of bellwether cases is a well-accepted tool used by thoughtful courts to achieve efficiencies and expedition in multiple-party cases”.
Johnson & Johnson contends plaintiff Blaes is in the midst of a multi-year long effort to maneuver into the St. Louis City Court, even though his claims have no connection to that venue. The company’s attornies call it forum-shopping motivated by the belief that St. Louis City is particularly friendly to plaintiffs. They claim Mr. Blaes, like other plaintiffs before him, hopes to secure a large verdict.
Interestingly, the initial $72 million award in the Fox case was tossed out by the Missouri Eastern District appeals court last October. The three-judge panel said the Fox lawsuit lacked jurisdiction in Missouri because of the U.S. Supreme Court decision in the Bristol-Myers case that called for stronger ties between states and plaintiffs’ claims.
Some legal experts have said the decision in the Fox case is a signal that the other favorable plaintiff judgments in St. Louis against Johnson & Johnson will also come tumbling down.
Weaver, the health care giant’s attorney before the Missouri high court, said it’s obvious that the Blaes case should be tried in St. Louis County where the Johnson & Johnson product was purchased and used, not in St. Louis City.
“The claim of an individual plaintiff is going to be tried in a venue where everyone agrees the venue does not lie,” Weaver said.
The high bench did not issue an opinion in the Blaes case Tuesday, and typically hands down its decisions six to eight weeks after its court proceedings.