Within recent years, there has been a wave of litigation surrounding talc products with claims that certain products contained talc sourced from asbestos-contaminated mines. Until this past summer, a large majority of the talc litigation had taken place in Missouri; however, Ohio and the other forty-eight remaining states may experience an uptick in talc litigation. The U.S. Supreme Court's recent Bristol-Myers decision appears to have spoiled Missouri's monopoly on talc litigation, and plaintiffs will now need to look to either their home states or New Jersey as possible venues against Johnson & Johnson.
Why has Johnson & Johnson, a New Jersey corporation, recently spent so much time in the state Circuit Court of St. Louis in Missouri? Missouri's former rules of joinder created a plaintiff-friendly hotbed of litigation that grew to the tune of over 1,000 cases being filed against Johnson & Johnson in St. Louis.
The Past:
Historically in Missouri, the joinder of out-of-state plaintiffs in pharmaceutical products liability cases was permissible. As a result, the majority of the Missouri talc cases against Johnson & Johnson all carried a significant number of out-of-state plaintiffs. For example, in Fox v. Johnson & Johnson, a Missouri state court extended jurisdiction over the talc case when only 2 of the 65 plaintiffs were actually from the Show-Me state.
Johnson & Johnson's lawyers have alleged bad faith in the plaintiffs' attorneys' practice of consistently placing at least one New Jersey plaintiff in each case, thereby frustrating the possibility of removal to federal court. However, Johnson & Johnson's attempts of removal were met with automatic remands, and assertions of fraudulent misjoinder fell flat as the Eighth Circuit has not adopted the doctrine of fraudulent misjoinder and will only consider the concept for "egregious" misjoinders.
Through October of this year, Johnson & Johnson has fared quite poorly in its talc litigation, with four significant judgments in talc cases totaling in excess of $300 million.
The Present:
For decades, courts have viewed specific jurisdiction as granting jurisdiction over corporations for claims and causes of action that related to the corporation's conduct in the forum state. Accordingly, Johnson & Johnson has been subject to jurisdiction in Missouri for all talc powder cases because Johnson & Johnson sold talc powder in Missouri. The result of this scheme of specific personal jurisdiction has been that individuals outside of Missouri who purchased Johnson & Johnson talc powder in their home states could sue Johnson & Johnson in St. Louis. Despite many of these plaintiffs having no connection to the state, Missouri state courts permitted these suits because the plaintiffs' talc powder claims related to Johnson & Johnson's conduct of selling talc powder in Missouri.
The Supreme Court recently ended this wave of plaintiffs flooding plaintiff-friendly Missouri state courts. On June 19, 2017, the Court handed down its Bristol-Myers decision and provided guidance on Johnson & Johnson's concerns pertaining to specific personal jurisdiction. In Bristol-Myers, the Court held that a state court cannot extend specific personal jurisdiction over a controversy if the underlying conduct did not occur in the forum state. In order for a plaintiff to sue Johnson & Johnson in Missouri, the plaintiff must have encountered Johnson & Johnson's talc powder in Missouri.
The Future:
In the wake of Bristol-Myers, plaintiffs' attorneys have lost their home-court advantage, and plaintiffs' ability to forum shop has diminished drastically. Plaintiffs in talc cases will now only be able to pursue suits against manufacturers in either the state where the individual purchased the talc-based product or the state in which the manufacturer is incorporated or maintains its principal place of business. Consequently, Missouri will no longer serve as the hotbed of talc litigation, and other states, including Ohio, may experience an increase of talc cases. New Jersey would be a logical location for future suits because Johnson & Johnson is incorporated in the Garden State; however, plaintiffs' attorneys may fear Johnson & Johnson's home-state advantage.
In the meantime, Johnson & Johnson will spend the immediate future appealing its previous adverse judgments in Missouri. The resilient corporation has already obtained the reversal of the $72 million verdict in Fox v. Johnson & Johnson because 63 of the 65 plaintiffs were asserting talc claims that occurred outside of Missouri.
Johnson & Johnson may still have to litigate in state court for certain pre-existing cases brought by in-state, Missouri plaintiffs where the dismissal of the New Jersey co-plaintiffs occurred a full-year after the cases' original filing dates. Even though full diversity now exists between the Missouri plaintiffs and the New Jersey defendant in those cases, on at least ten occasions since the Bristol-Myers decision, the U.S. District Court for the Eastern District of Missouri has denied Johnson & Johnson's attempts at removal. The District Court has consistently denied these removals because the cases became diverse after the one-year bar under 28 U.S.C. § 1446(c)(1). Bad faith on the part of the plaintiff could circumvent the one-year bar; however, the District Court has explicitly stated plaintiffs were not operating in bad faith because such broad, multi-state joinders were permissible before Bristol-Myers.
While the outcome of Johnson & Johnson's substantive arguments remains unclear, the company's procedural footing has gained significant strength for the immediate future.
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