Recently, a Missouri Court of Appeals vacated a trial court’s award of $110 million in an ovarian cancer talc case, Slemp v. Johnson & Johnson, ED 106190 (Mo. Ct. App. Oct. 15, 2019). This is the third talc verdict handed down by a St. Louis jury overturned on appeal based on lack of personal jurisdiction in light of the United States Supreme Court’s ruling in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S. Ct. 1773, 198 L. Ed. 2d 395 (2017) (“BMS”).
The underlying case involved 62 plaintiffs that brought suit against defendants Johnson & Johnson Consumer Companies Inc. and Imerys Talc America Inc. in Missouri for damages related to the use of talc products allegedly tainted with asbestos. Of the 62 plaintiffs, 61 were non-residents of Missouri. Louis Slemp, a Virginia resident, claimed she developed ovarian cancer in 2012 as a result of her use of Johnson & Johnson’s talc products, which were manufactured in Georgia and purchased and used in Virginia. Her claims were tried separately from the other plaintiffs and the jury returned a verdict in her favor, awarding actual and punitive damages in the amount of $110 million. After the verdict, the trial court entered final judgment pursuant to Rule 74.01(b), however during that same time the United States Supreme Court handed down its opinion in BMS and the plaintiff successfully moved to revise the judgment and re-open discovery on the issue of personal jurisdiction.
On appeal, Johnson & Johnson and Imerys Talc (hereinafter “Appellants”) argued that the trial court lacked the authority to revise the judgment to re-open discovery on the issue of personal jurisdiction and also that the trial court lacked personal jurisdiction over plaintiff’s claims. The Missouri Supreme Court agreed with the Appellants on both issues. First, the Missouri Court of Appeals found that once the initial 30-day window after entry of the final judgment passes, the trial court’s authority to grant relief is constrained. Here, the trial court’s authority had ended well before it revised the final judgment and allowed plaintiff’s motion to re-litigate personal jurisdiction. The Court found the motion was neither authorized nor timely, and thus the trial court was not empowered to revise the judgment.
Turning to the issue of personal jurisdiction, the Missouri Court of Appeals held that the trial court was required to have specific personal jurisdiction over each individual claim, rather than establishing personal jurisdiction by allowing non-residents to join similar claims with those of resident plaintiffs, as established by the United States Supreme Court’s decision in BMS. Therefore, the Missouri Court of Appeals held that the trial court lacked personal jurisdiction over non-resident defendants, Johnson & Johnson and Imerys Talc, where Louis Slemp resided in Virginia, she used the defendant’s talc products in Virginia, and the products themselves were manufactured in Georgia.
The Missouri Court of Appeal’s decision in Slemp fell in line with its recent decisions in two other talc cases Estate of Fox v. Johnson & Johnson and Ristesund v. Johnson & Johnson followed suit. 539 S.W.3d 48 (Mo. App. E.D. 2017); 558 S.W.3d 77 (Mo. App. E.D. 2018). Similarly, in those cases, after judgment had been reached but while appeal was pending, the United States Supreme Court decided BMS, which clarified the existing law on specific personal jurisdiction. As a result, the Missouri Court of Appeals in Fox vacated a $72 million verdict, and in Ristesund, a $55 million verdict.
At the time the trial court decided Slemp in 2017, the $110 million verdict was reported as one of the largest jury awards in the United States. While we have continued to see large talc verdicts and a growing number of pending talc cases, we have also seen some of these large verdicts overturned on appeal. For toxic tort litigators, the overturned verdicts re-affirm the United States Supreme Court’s decision in BMS, and lend continued support for personal jurisdiction defenses in cases involving out of state plaintiffs for injuries that occurred outside of the chosen forum.