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Eastern District ruling reverses $110M verdict in talcum powder case

The Court of Appeals Eastern District ruled Oct. 15 that a St. Louis judge should not have heard a Virginia woman’s claim against Johnson & Johnson, throwing out a $110.5 million verdict in her favor.

The verdict was the second-largest plaintiffs’ win of 2017, as tracked by Missouri Lawyers Media. But recent court rulings doomed the case on jurisdictional grounds.

Lois Slemp, who lives in Virginia, was among 62 plaintiffs who filed a joint lawsuit in St. Louis Circuit Court alleging that they’d developed ovarian cancer from using Johnson & Johnson talcum powder. Just one of the 62 claimants was from Missouri. Slemp’s case, however, was tried separately.

Shortly after the May 2017 verdict, the U.S. Supreme Court ruled in Bristol-Myers Squibb v. Superior Court of California that a state court doesn’t have specific jurisdiction to hear suits by nonresidents involving conduct that didn’t occur in that state. Following that ruling, the Eastern District overturned two similar talc verdicts tried in St. Louis: a $55 million award for a resident of South Dakota and a $72 million verdict for the family of an Alabama woman who died from ovarian cancer.

Judge Sherri B. Sullivan, writing for the Eastern District, said “the same outcome that resulted in those cases is warranted here.” Judges Mary K. Hoff and Angela T. Quigless concurred.

The ruling came just two weeks after oral arguments on Oct. 1. Despite the earlier precedents, however, Slemp’s appeal involved a twist.

St. Louis Circuit Judge Rex Burlison initially entered a judgment in the case in August 2017 and cleared the verdict to be appealed while the other claims connected to the case remained pending. But Johnson & Johnson and a co-defendant, Imerys Talc America, argued that the judge lacked personal jurisdiction, citing the Bristol-Myers Squibb ruling.

Slemp’s attorneys responded by alleging that a Missouri company was involved in the manufacturing of the powder at issue. Burlison allowed the plaintiff to make a record on those allegations and rescinded his previous order allowing the case to be appealed. The case, he wrote at the time, “is not in such advance posture so as to prohibit a review of jurisdictional facts.”

The Eastern District, however, said Burlison’s order came too late. The plaintiff’s request to relitigate personal jurisdiction was filed 76 days after the entry of the original judgment. Under court rules, the judge had authority to amend that judgment for only 30 days.

“Once certification occurs, the otherwise interlocutory order becomes, for all intents and purposes, a final judgment, and the trial court’s authority becomes limited by those procedural rules which apply to final judgments,” Sullivan wrote. “This necessarily implies the unfettered authority to alter its own order that [Slemp] ascribes to the trial court evaporates once it certifies such an order as an appealable judgment.”

The court didn’t say if Burlison’s order would have been proper if it had occurred within the time limit. At the time, the defendants had argued that the plaintiff’s injection of new facts after trial was “an attempt to validate past actions that the Court has no jurisdiction to take in the first place.”

Edward “Chip” Robertson Jr. of Bartimus Frickleton Robertson Rader, who argued the plaintiff’s case on appeal, declined to comment. Wylie Blair of Onder Law, which won the original verdict, didn’t respond to a message seeking comment.

Armstrong Teasdale represented Johnson & Johnson on appeal. Monica Kriegel, a spokeswoman for the firm, said in an email that its attorneys couldn’t comment on the case.

The case is Slemp v. Johnson & Johnson, ED106190.

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