Influential Appellate Advocates
For Tom Weaver, the biggest appeal of 2020 was a “fascinating, if not frustrating case.”
Weaver, a partner with Armstrong Teasdale, was the lead attorney in the appeal of a $4.69 billion jury verdict against Johnson & Johnson and a subsidiary on claims that the companies’ talcum powder products contained microscopic asbestos fibers that caused ovarian cancer.
The jury in Ingham et al. v. Johnson & Johnson et al. awarded $25 million in compensatory damages to each of 22 plaintiffs or their survivors, and an additional $4.14 billion in punitive damages. It was the top plaintiff’s win of 2018 and one of the largest verdicts ever given by a Missouri jury.
The appeal featured 389 pages’ worth of briefing and a record of some 6,000 pages that detailed the six-week trial. Yet just three months after arguments, the Court of Appeals Eastern District came back with a mixed ruling, trimming the award by more than $2.5 billion but denying most of the defendants’ key arguments on appeal.
Weaver had argued, and he still believes, that the structure of the trial was fundamentally unfair. The plaintiffs hailed from multiple states, had purchased the talcum powder products at different times and had different underlying medical histories.
“How do you present that in a single appeal in a single brief without diluting the differences among those plaintiff groups?” he said. “That was a complicating factor on the appeal that carried through the problematic effect of trying these claims together.”
The Eastern District, however, ruled that the differences in the plaintiffs’ circumstances were adequately explained in the detailed jury instructions, which took up 140 pages of transcript.
The appeal did succeed in persuading the Eastern District that some of the plaintiffs’ claims never should have been heard in St. Louis in the first place. Only five of the plaintiffs were from Missouri, and a series of recent precedents has limited the ability of state courts to exercise jurisdiction over out-of-state parties.
The court held that just 20 of the 22 plaintiffs could sue the subsidiary, Johnson & Johnson Consumer Inc., in Missouri courts, while only the five Missourians could bring claims against its parent company. As a result, the compensatory damages were reduced to $500 million, of which Johnson & Johnson is jointly and severally liable for $125 million. The punitive damages were reduced proportionately to the still-tidy sum of $1.6 billion.
Given the eye-popping sums involved and the complexity of the legal issues, the case seemed destined for the Missouri Supreme Court. Yet in November, the court turned away the case without explanation.
“’Surprised’ would be the most modest characterization of my response to that,” Weaver said. “I thought the Supreme Court should take it, and frankly I thought they would take it.”
Johnson & Johnson denies the link between its products and cancer and plans to ask the U.S. Supreme Court for review. Weaver isn’t involved in that effort.
Weaver is no stranger to tough appeals. Last year, he and colleague Susan Ford Robertson were named Missouri Lawyers Media’s Lawyers of the Year for their advocacy in a case (also involving Johnson & Johnson talcum powder) that reinterpreted the state’s venue and joinder rules. And in 2014, Weaver was named an Influential Appellate Advocate for knocking out two-thirds of the damages in a massive award against a lead smelter.
In 2020, however, it wasn’t just the legal issues that were difficult. The case, which was argued in April, was one of the rare oral arguments the Eastern District held in person during the COVID-19 pandemic. Only two lawyers from each side were allowed to be in the courtroom. Weaver was grateful for that opportunity.
“I can’t imagine arguing this case over the phone,” he said.