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A Missouri appeals court held rare in-person oral arguments Friday in a case that resulted in a $4.69 billion verdict for a group of women who claimed they contracted ovarian cancer from using Johnson & Johnson talcum powder.
The case was originally set for hearing on April 7, but after most in-person hearings were canceled during the COVID-19 pandemic, the Missouri Court of Appeals Eastern District rescheduled a restricted version of the argument for April 24.
Only two lawyers from each side were allowed to be in the courtroom, but the proceedings were live-streamed on the Eastern District’s Facebook page and recorded for posting on YouTube.
The plaintiffs — or, in many cases, their survivors — alleged that Johnson & Johnson’s talcum-powder products were laden with microscopic asbestos fibers that caused their ovarian cancer. Attorneys for the plaintiffs said at the time that it was the first talc/asbestos-induced ovarian cancer verdict in the United States.
The company has denied both that its products contain asbestos and that its talcum powder is linked to cancer. Among the numerous issues on appeal is that the plaintiffs, who came from different states, were allowed to present their cases jointly at the six-week trial.
In arguments before the panel, Johnson & Johnson’s attorney, Thomas B. Weaver of Armstrong Teasdale in St. Louis, argued that the identical compensatory awards for each plaintiff indicated the jury failed to consider their cases individually.
Judge Philip M. Hess asked how Weaver knew what the jury was thinking.
Weaver said the jury deliberated only a little longer than the time it took them to read the jury instructions before returning the verdict. He also asserted that the plaintiffs did not present the case on an individual level but as a collective or group claim.
Judge Kurt S. Odenwald asked if the company’s concern was that the case should be tried separately or rather with the way evidence was presented.
“It could not have been a fair trial, trying these 22 claims together, however it was tried,” Weaver said. “The prejudice inherent in tying 22 claims together is inescapable in terms of how it’s tried. You’re going to have a jury every day confronted with a courtroom filled of women have ovarian cancer or the families of women who have had ovarian cancer and died.”
Weaver also argued the punitive award is unconstitutionally excessive. He argued that there was no way for the jury to segregate the evidence based on relevance for the plaintiffs on an individual basis.
“[Are you saying] it’s simply beyond the capability of the jury to look into this bowl of spaghetti and separate the strands?” Hess asked.
“It’s unreasonable to assume they can, presented with all this information,” Weaver said.
Weaver also argued that Johnson & Johnson was not subject to personal jurisdiction in Missouri, and he said the court should reverse and vacate the claims of the 17 out-of-state plaintiffs accordingly.
Kevin P. Parker of The Lanier Law Firm from Houston, Texas represented the plaintiffs. He argued that joinder in the case was proper.
“The case law teaches us that when you have — especially in toxic-tort cases — when you have overlapping issues, consolidation or a joinder of these claims is proper,” he said.
During the six-week trial, five weeks focused on common issues among the plaintiffs, and 14 experts testified to common issues, he noted.
“This was a proper case for consolidation,” he said.
Odenwald asked Parker to respond to Johnson & Johnson’s assertion that the plaintiffs jointly received a verdict that was substantially higher because their cases were tried together.
Parker said Johnson & Johnson is not challenging on appeal the excessiveness of the compensatory damages awarded to the plaintiffs.
It’s not surprising that a jury would find damages in the same amount for the women, who suffered common damages, he said. At trial, the defendants did not say anything about how the plaintiffs would be damaged in different amounts, he said.
“They left 15 minutes on the table and didn’t say anything about it,” he said. “Their argument today sounds a little like Monday-morning quarterbacking.”
The livestream for the hearing drew about 225 viewers by the end of the arguments.
The hearing mostly went off without a hitch, apart from a moment when Parker had to pause mid-argument because a person adjusting the camera for the livestream nearly dropped it. Viewers could see a brief shot of the ladder on which it was perched.
The case is Ingham et al. v. Johnson & Johnson et al., ED107476.
