Ruling Could Have Implications on Out-of-State Lawsuits

The nationwide pharmaceutical corporation Johnson & Johnson (J&J) has filed a motion to dismiss a large number of cases brought against their talcum powder products, seizing upon a United States Supreme Court ruling which could potentially restrict the courts where plaintiffs can file lawsuits.

The Supreme Court decision in Bristol-Myers Squibb Co vs Superior Court restricted Plaintiffs in that case to file personal injury lawsuits in either the district where J&J is incorporated or has its principal place of business or the district where the injury occurred. Though the decision was specific to Bristol-Myers Squibb Co, J&J hopes to apply it to other pending cases throughout the country.

J&J ultimate goal is to restrict and dismiss the number of cases filed against their talcum powder products in state courts. There are nearly 6,000 lawsuits currently filed against J&J claiming that their talc products increase the likelihood of ovarian cancer in women. J&J failed to warn consumers of these increased risks. In fact, the company still denies that these risks even exist.

Of the 5,950 lawsuits against J&J’s talc products, around twenty percent (20%) are pending in Missouri state courts (primarily in the city of St. Louis) where juries have already awarded nearly $307 million in verdicts for Plaintiffs who were injured by talc.

A number of these St. Louis Plaintiffs are not Missouri residents, which is why J&J argues that they should be dismissed because the court lacks personal jurisdiction. In essence, personal jurisdiction arises out of issues of federalism, state sovereignty, and the due process rights of the defendant (here J&J). Ultimately, personal jurisdiction determines whether a state can constitutionally enter judgment against a defendant. In order to establish jurisdiction, there must exist sufficient minimum contacts by the defendant such that the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice.

For J&J, it should be fair to state that even out-of-state cause of actions clearly relates to J&J’s contacts with Missouri. In other words, it can be argued that out-of-state Plaintiffs’ injuries resulted from the tortious sale of talcum powder, and J&J carries on that the same injurious activity in Missouri. Even further, J&J should not be surprised if they are sued in a Missouri court to answer for their tortious sale of talc powder. If J&J did not want to take responsibility for their actions in Missouri, then they should never have directed their sales to Missouri.

If the judge allows J&J’s motion to dismiss based upon a lack of personal jurisdiction, these out-of-state cases will be dismissed and potentially never see their day in court.

Following the Supreme Court ruling, a St. Louis judge declared a mistrial in a talc product trial that had already been proceeding for nearly a week. Two of the three Plaintiffs, in that case, were not residents of Missouri.

“We believe the recent U.S. Supreme Court ruling on the Bristol-Myers Squibb matter requires reversal of the talc cases that are currently under appeal in St. Louis,” J&J said of the matter.

This decision could have implications on other cases throughout the court, including but not limited to, California lawsuits against Bayer’s Essure and Illinois and California lawsuits against GlaxoSmithKline’s Paxil. A large number of plaintiffs in both lawsuits are filing from out-of-state and could be vulnerable to dismissal based on the Supreme Court’s limiting decision.

As of Today, FDA Has Not Reported on the Link Between Talc and Ovarian Cancer

On the other hand, in 2009, the FDA took steps towards finding a link between talc and lung cancer. Of the nine talc suppliers asked by the FDA to provide samples of talc for the study, only four complied with their request. They also sampled talc-containing cosmetic products in the study. The survey found that no asbestos fibers or structures were present in any of the samples. Because of the limited number of samples, the FDA found the results “informative”, but did not prove that most or all products in the United States containing cosmetic grade talc are free of asbestos.

According to the Center for Disease Control and Prevention, nearly 20,000 women develop ovarian cancer in the U.S. annually. Of these cases, 14,500 are fatal.

In 2017, the FDA’s Office of Women’s Health (OWH) took another step to establishing a link between talcum powder and ovarian cancer. The OWH awards research grants for one to two-year projects designed to advance the study of women’s health issues. One of those research grants was awarded to a team investigating the link between talcum powder and cancer. The research summary states that the connection between the two not been investigated adequately and there was a larger “need for studies with longer exposure periods and more detailed evaluation of the early events in genital system tissue transformation.”

Currently, there are more than 4,000 talcum powder lawsuit cases pending against talc products, but since these powders are cosmetic products, regulatory authority by the FDA is limited, leaving women in the hands of the manufacturers. Johnson & Johnson continues to market their profitable talcum powder as a safe and consumer-friendly product.