Johnson & Johnson‘s attempt to dismantle a $4.69 billion talc verdict met with mixed signals Friday, as a Missouri appellate panel appeared to discount J&J’s complaints that 22 women’s claims were combined into one trial and focused more on the fact that there were 17 out-of-state plaintiffs.
The appeal came in a case brought by a group of ovarian cancer victims and their family members, led by named plaintiff Gail Ingham, that went to a six-week trial that ended in June 2018. The jury awarded each woman or family $25 million in compensatory damages and then tacked on $4.14 billion total in punitive damages — $3.15 billion against J&J and $990 million against its subsidiary J&J Consumer Inc.
During a roughly 90-minute oral argument session on Friday, attorneys for J&J and the plaintiffs touched on as many points from their nearly 400 combined pages of appellate briefing as possible for a three-judge panel.
J&J attorney Thomas B. Weaver of Armstrong Teasdale LLP started off with the point J&J has made the centerpiece of its appeal: that it was inherently unfair to allow the combination of this many women’s claims. Weaver said that the “sheer number” of plaintiffs was what convinced the jury to hold J&J liable.
Presiding Judge Philip Hess was skeptical, however, asking Weaver, “How do we know that? How do we know that’s what they did?”
After Weaver responded, Hess again asked, “But how do we know what the jury was thinking?”
This time, Weaver pointed to the fact that the jury had deliberated for only eight hours — after a six-week trial and five hours of jury instructions — and awarded identical amounts to each plaintiff family.
“I don’t think it’s necessarily fair, Judge Hess, to say we have to know exactly what’s in the minds of jurors, because we can’t interrogate them,” Weaver said. “But we can look at the record and what consistently happened from start to finish.”
Weaver then said there was no way for the trial to be fair with the jury being confronted every day with a courtroom filled with women who have ovarian cancer, or surviving family members of women who died of ovarian cancer.
Judge Kurt Odenwald responded by saying, “That’s every mass tort, so isn’t that why the judge is supposed to balance things? … Doesn’t it come down to trial court’s discretion?”
When Kevin Parker of The Lanier Law Firm, representing the plaintiffs, started his argument, he told the panel that while it “would be challenging” for the jurors to separate out the individual claims and evidence of each of the plaintiffs, “we had a well instructed and attentive jury in this case.”
Judge Odenwald asked Parker to explain the jury’s identical damages awards, saying while he agreed that this was not a “litmus test,” it is something to consider along with the fact that the compensatory damages were much higher than in prior talc trials in St. Louis Circuit Court.
Parker said that if J&J was going to argue that the damages amount were unreasonably high, it should do so directly.
“We’re not to take the innermost thoughts of jurors and put them on the slide for legal examination, and that’s what they’re asking the court to do,” he added.
The panel spent much of Parker’s argument asking him about personal jurisdiction and the 17 out-of-state plaintiffs. Fifteen of those women had said they used a J&J talc product, Shower to Shower Shimmer Effects, that was made for J&J Consumer by a Missouri company, Pharma Tech.
Judge Odenwald appeared skeptical that the two women who had not used Shimmer should have their claims in Missouri just because Pharma Tech had also contracted with a Georgia facility to make baby powder for J&J.
As for the 15 women, J&J has argued that they only have jurisdiction to bring claims against J&J Consumer, not J&J itself, because J&J Consumer is the entity that had the contract with Pharma Tech.
Parker told the panel that J&J had only raised this “corporate separateness argument” in several footnotes in its motions to dismiss in the trial court and can’t bring it up now.
“It’s not fair to reverse for a circuit court not ruling on something that’s just in a footnote,” he said. “I think they waived it by not putting it in the text.”
Judge Hess then said the plaintiffs had two ways to “get to home” on this argument: prove J&J Consumer was an alter ego of J&J, or was acting as its agent.
“The fact that there’s some control by a parent company of a subsidiary is not enough. That’s pretty clear in the case law,” he said.
Judges Odenwald and Hess repeatedly asked Parker where the evidence was of either of these types of relationships, with Parker eventually saying that it was just the contracts between J&J Consumer and Pharma Tech.
“There is no evidence on it, that’s the struggle I’m having with jurisdiction over J&J,” Judge Odenwald said.
“The documents themselves that discuss the J&J family of companies, that’s it… there’s nothing else,” Parker said.
The panel took the matter under submission to issue a ruling later.
The arguments were held in person, despite most Missouri in-court proceedings bring suspended because of the coronavirus pandemic, which did intrude — notably when a court staffer or officer would wipe down the podium and microphone used by the attorneys in between each of their arguments.
Only two attorneys for either side were permitted in the courthouse, and the gallery was empty.Instead, spectators were able watch the arguments via a video livestream on the court’s Facebook page, in a process that went smoothly overall. The ad hoc nature of the filming setup — which appeared to be a person holding a smartphone or similar device and standing on a ladder — became evident when the person holding the camera nearly dropped it at one point, prompting the appellate judges to briefly pause the arguments.
Judges Philip Hess, Kurt Odenwald and Lisa Page sat on the panel that heard Friday’s arguments.