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The top three plaintiff’s verdicts of 2016 were all the result of talc lawsuits. In each case, the plaintiff had developed ovarian cancer, had been a regular user of Johnson & Johnson’s talcum powder products, and had no connections to St. Louis, where the cases were tried, or Missouri.
The talc verdicts of $72 million, $70 million and $55 million in awards to plaintiffs, resulted in two competing narratives. On one side, trial lawyers and consumer advocates promote the verdicts as wins for consumers harmed by a big business’ product. On the other, tort-reform advocates hold them up as evidence of low standards.
Due to the talc verdicts, the American Tort Reform Association ranked St. Louis first in the nation in its “Judicial Hellholes” ranking. The list cites courts for what it describes as abuses of the civil justice system.
The talc verdicts are based on “junk science,” outdated evidentiary standards and a jury pool biased against Johnson & Johnson, said ATRA spokesman Darren McKinney.
The association recommends Missouri adopt the so-called Daubert rule, which is in effect in 40 state court systems, McKinney said. Under Daubert, judges must act as “gatekeepers” when deciding to admit evidence from an expert witness. Missouri’s lax rules, including the lack of a Daubert standard, discourage companies from doing business in the state, he said.
“Effectively, it means anything goes in Missouri courts,” McKinney said. “It’s just a joke and these verdicts are a result of a faulty and anachronistic evidentiary standard.”
St. Louis attorney Jim Onder of Onder Law, who was on the team that successfully tried the cases, is unconcerned about ending up on ATRA’s judicial hellholes list, saying that the organization has no set methodology for determining which jurisdictions are named and merely names venues based on the biggest verdicts of the year.
“If you look at the list, the most conservative venues in the country have ended up on the Judicial Hellhole list because of big verdicts,” Onder said.
The issue has caught the attention of the state legislature and new governor.
Gov. Eric Greitens discussed tort reform in his State of the State address shortly after taking office in January, and several bills regarding the court system had been filed by the end of the month. On Thursday, the Missouri House passed a bill that would adopt the Daubert rule for expert testimony in civil cases, and a bill that would change the collateral source rule to limit plaintiffs’ claimed medical expenses to the amounts actually paid for medical care. The Senate passed its own version of the collateral sourece bill.
Similar talc trials are scheduled in St. Louis in February, April and June, Onder said. More than 2,000 cases have been filed in the city.
“We have to see if Johnson & Johnson decides to do the right thing and resolves these cases, and starts warning consumers so they can make informed decision about their own health,” Onder said.
Johnson & Johnson has said there is no connection between its talc products and ovarian cancer and it is appealing the verdicts.
The highest plaintiffs’ wins for 2016 are smaller than those of 2015. In that year, courts awarded a $491 million verdict against PNC Bank in a lawsuit over PNC’s predecessor, Allegiant Bank, mishandling assets designated to cover consumers’ funeral expenses. The courts also awarded a $434 million judgment against the Hospital Corporation of America when the court found the company failed to make improvements to urban hospitals it had bought in Kansas City. In January, the Missouri Western District Court of Appeals cut that judgment to $188 million, and the parties agreed to settle for that amount.
Also in 2016, the highest plaintiffs’ win came in the form of a class-action settlement, rather than a verdict.
These calculations are based on cases covered by Missouri Lawyers Weekly reporters and those submitted to our Verdicts & Settlements database. These sources are not a complete record of cases litigated in Missouri.
Settlements
Personal injury cases dominated the top settlements of 2016, topped off with an $80 million class action settlement for asbestos exposure. In David Elsea, Jeanne Morgan v. U.S. Engineering Company, Jackson County, Missouri, current and former workers at Kansas City’s courthouse alleged that asbestos exposure that occurred during a renovation in the 1980s created a health hazard. The settlement was obtained by the legal team of Lou Accurso, Burton S. Haigh and Clayton E. Gillette of the Accurso Law Firm, Kansas City; Edward D. Robertson Jr., Mary Doerhoff Winter and Anthony L. DeWitt, of Bartimus Frickleton Robertson, Jefferson City and Kansas City and Herbert W. McIntosh of the McIntosh Law Firm, Kansas City.
The settlement is believed to be the first medical-monitoring settlement in Missouri. The award will provide testing and monitoring for asbestos-related mesothelioma for the roughly 7,500 attorneys, jurors and courthouse employees who worked in the building between 1983 and 2007.
The asbestos settlement towered over the remaining top settlements of the year. The remaining top five settlements ranged from $5.25 million to $15.5 million.
Defense verdicts
Product liability dominated the top defense wins of 2016, including a class action suit that sought $1.5 billion from a tobacco giant. In Larsen v. Philip Morris, plaintiffs who had purchased Marlboro Lights cigarettes sued the company because they had been led to believe that “light” cigarettes were healthier than regular cigarettes. The cigarette maker removed the phrase “lower tar and nicotine” from the product’s label in 2003.
Defense attorneys successfully argued that the company had removed wording implying that light cigarettes were safer than standard cigarettes once it became aware that the “light” version was not healthier. They also fended off the plaintiff’s claims that Marlboro Lights were more dangerous than regular Marlboro cigarettes.
The St. Louis jury deliberated for about an hour before rendering a defense verdict.
The Larsen suit involved a class of roughly 400,000 Missouri smokers, according to Thompson Coburn, whose attorneys Booker T. Shaw, Felicia Williams and Virginia Woodfork successfully defended the case.
The verdict was comparable to 2015’s top defense verdict of $1.25 billion in Black & Veatch Corp. v. Strongwell Corp.
The second largest defense win came from Jackson County in the case of Eve Sherrer v. Boston Scientific Corp., C.R. Bard Inc. In this suit, jurors sided with two manufacturers of pelvic mesh after the plaintiff alleged defective products, negligence and that she hadn’t been warned about the products. The legal team of Robert Adams, Michael Kleffner, Andrea Steele and Hildy Sastre of Shook, Hardy & Bacon, of Kansas City and Miami were among the team that successfully defended the $28 million case. mo
