On June 1, 2021, the United States Supreme Court declined to hear Johnson & Johnson’s (J&J) appeal to overturn a $2.12 billion dollar damages award to 22 female plaintiffs who alleged their ovarian cancer was caused by J&J’s talcum powder products. This is a significant setback for defendants in defending consolidated multi-plaintiff mass tort trials and a juries ability to award large punitive damage awards.
In June of 2018, Ingham v. Johnson & Johnson went to verdict following a six-week jury trial in St. Louis City Circuit Court that resulted in a $4.69 billion award. The Ingham court consolidated 22 plaintiffs at trial, including 17 plaintiffs who did not reside in Missouri. These 22 plaintiffs brought claims under 12 different states laws for talcum powder exposure. The jury returned an identical verdict for each plaintiff with no variants, such that each plaintiff was awarded around $25 million in actual damages for their talcum powder exposures.
Post-trial, J&J appealed the verdict to the Eastern District of Missouri Appellate Court on the grounds that the trial court lacked specific personal jurisdiction over the 17 non-Missouri plaintiffs and that the trial violated J&J’s due process rights by having a single mass tort trial consisting of 22 plaintiffs from various states. The Missouri Court of Appeals ruled partially in favor of J&J regarding the specific personal jurisdiction issue when it found that the trial court lacked personal jurisdiction over all 17 non-Missouri plaintiffs. However, the appellate court found that the trial court had proper personal jurisdiction over 15 of the non-Missouri plaintiffs as it related to Johnson & Johnson Consumer Inc. (“JJCI”), a subsidiary of J&J. This subsidiary had a contract with Pharma Tech, a Missouri company, that assisted in labeling a product called Shimmer. The appellate court ruled that the trial court had personal jurisdiction over the 15 plaintiffs who allegedly used Shimmer. Ultimately, the contract between the subsidiary and Pharma Tech to label the product was sufficient to establish personal jurisdiction in Missouri. The appellate court reduced the compensatory and punitive damages award to account for the plaintiffs that lacked jurisdiction, but the appellate court did so assuming that both J&J and JJCI would pay the full amount of compensatory damages, under a joint and several liability theory, thereby raising the upper limit for punitive damages. After the Missouri Supreme Court denied hearing of the case, J&J filed a writ of certiorari to the United States Supreme Court.
Writ of Certiorari
J&J’s cert petition to the Supreme Court was based on three main issues. First, J&J claimed that a single mass tort trial with multiple plaintiffs violated its right to a fair trial. Thus, the issue of whether a court may presume jury instructions always cure both jury confusion and prejudice in a consolidated, multiple plaintiff trial, will not be decided at this time. J&J pushed for interpretations from the Second and Fifth Circuit, along with the Supreme Court of Iowa, Texas, and Mississippi that have ruled single mass tort trials are prejudicial to defendants. Plaintiffs relied on Missouri’s interpretation where any prejudice can be cured through jury instructions.
Second, J&J argued that the Missouri court lacked personal jurisdiction over the non-Missouri plaintiffs. J&J wanted the Supreme Court to look specifically at the issue of whether the “arise out of or relate to” requirement for specific personal jurisdiction can be met by merely showing a “link” in the chain of causation, as the Court of Appeals held, or whether a heightened showing of relatedness is required, as the Ford Motor Company in Ford Motor Co. v. Montana Eighth Judicial District court has argued.
Third, J&J argued that the punitive-damages award violated due process since it far exceeded the compensatory-damages award.
Plaintiffs responded to J&J’s petition by claiming that state and federal rules generally allow joint trials when claims arise out of the same series of transactions and raise common questions, such as whether talc or asbestos cause cancer and whether the talcum powder contained asbestos. Plaintiffs further argued that J&J’s attempt to make a constitutional case out of a state-law dispute lacked merit. Finally, Plaintiffs argued that the Supreme Court unanimously rejected the proposed proximate-cause requirement in the Ford case and further review in light of the Ford decision was unwarranted.
The Supreme Court’s decision will have a lasting impact on the future of consolidated, multi-plaintiff mass tort trials. These trials allow for plaintiffs to easily generate inferences of causation by merely showing all plaintiffs have two things in common: product use and disease, even if scientifically baseless. Defendants in consolidated mass tort trials must be prepared for the fact that juries are unlikely to analyze the nuances of each single plaintiff, so defending clients in these cases will be inherently more difficult.