On a June Monday, lawyers in a trial over Johnson & Johnson's talcum powder scrambled to explain to a St. Louis judge whether a U.S. Supreme Court decision handed down that morning doomed their case.
One attorney was still downloading the opinion to his computer. Another told the judge he was "literally on my cellphone trying to learn facts," according to a recently released transcript of the hearing. Yet defense attorneys assured 22nd Circuit Court Judge Rex Burlison that the Supreme Court decision in Bristol-Myers Squibb Co. v. Superior Court, which limited where defendants could be sued, threw "a monkey wrench" into the case and had disrupted matters so thoroughly that he could do nothing less than grant a mistrial.
But plaintiffs lawyers had a surprise: A company called Pharma Tech Industries. When asked to address Bristol-Myers, W. Wylie Blair of Onder, Shelton, O'Leary & Peterson in St. Louis began to introduce the judge to Pharma Tech, a company that was "doing the packaging and labeling, distributing, of talc-based body powders right here in Union, Missouri."
"Roll that again," Burlison interrupted. "Pharma Tech Industries was doing what?"
Plaintiffs attorneys went on to tell him about letters, forms, emails, monthly checks and sales documents allegedly showing Pharma Tech's plant in Missouri had bought raw talc from Imerys Talc America Inc., another defendant in the case, which alleged Johnson & Johnson's talcum powder caused three women to die from ovarian cancer. Pharma Tech then made products for Johnson & Johnson, they said. The talc had a cancer warning on it, but Pharma Tech, at J&J's direction, removed it when manufacturing, bottling and labeling its products.
Though intrigued, Burlison wasn't convinced to proceed with the trial, in which two of the three plaintiffs hadn't lived in Missouri. He granted Johnson & Johnson's motion for a mistrial.
Going forward, he said, would be like "trying to master a square into a round hole."
"We do have allegations in this case that would constitute what the Bristol-Myers court refers to as relevant acts, however, we don't we do not have pleadings sufficient to anchor those relevant acts to a third party, that being the Pharma Tech Industries here in Missouri," Burlison said.
But he reset the case for trial on Oct. 16 and permitted plaintiffs attorneys to move forward on discovery over Pharma Tech, a family-owned manufacturer of pharmaceutical powders based in Athens, Georgia. Founded in 1972, Pharma Tech has been run by the same family since 1989. It has a plant in Union, Missouri.
The Pharma Tech evidence could prove essential to the claims of more than 1,360 other women and their families who have sued in Missouri, where juries have awarded verdicts of more than $300 million. Pharma Tech has come up in plaintiffs' motions this month to remand 20 cases back to Missouri. Johnson & Johnson removed them to federal court under Bristol-Myers just before the scheduled depositions and subpoenas on the Pharma Tech evidence. Plaintiffs' attorneys also want the Missouri Court of Appeals to let them to add the Pharma Tech evidence to a case on appeal.
A Johnson & Johnson spokeswoman declined to comment.
"None of the cases tried to date have alleged any conduct by Imerys in Missouri, and the vast majority of cases filed against us in St. Louis are by plaintiffs who similarly have no connection to St. Louis or Missouri," said Imerys spokeswoman Gwen Myers. "We will look to overturn those cases that were already improperly tried in this jurisdiction and will seek to apply this ruling to those that are still pending."
The defense bar has been emboldened by Bristol-Myers, in which the Supreme Court ruled plaintiffs who sued over injuries attributed to blood thinner Plavix had failed to establish specific jurisdiction because there wasn't enough of a link between their claims and California, where they brought their "mass action." Most of the 600 plaintiffs didn't live in California, and Bristol-Myers is based in New York. The court also found that a California distributor, McKesson Corp., didn't have enough connection to the claims.
But Pharma Tech does, say plaintiffs lawyers in the talcum powder litigation.
"They're the ones who are ultimately the end all and be all in terms of whether the labeling contains a warning," Blair told the judge at the June 19 hearing.
Defense lawyers were quick to note that the sudden evidence put them in an unfair position (though one plaintiffs attorney called it "a little bit facetious" that Johnson & Johnson's lawyers didn't know about Pharma Tech).
"Today is the first time that we've heard of this company called Pharma Tech Industries," said James T. Smith, a partner at Blank Rome in Philadelphia. "How could it be more unfair than to be in a courtroom defending against these claims literally on the fly?"
Moreover, defense attorneys said there was no evidence that Johnson & Johnson was directing Pharma Tech's actions, or that the plaintiffs used any of the talc products made at Pharma Tech.
But this month, Johnson & Johnson admitted that Pharma Tech made one of its products from 2005 to 2010. Shower to Shower Shimmer Effects was a "business failure," attorney Beth Bauer wrote in Johnson & Johnson's July 11 opposition to remand. She insisted that the product wasn't relevant to the talcum powder litigation because it was designed to have a "sparkling or shimmering effect" when applied to the skin, and "thus likely to be applied to visible portions of the body rather than used perineally."
"As such, not only is there no allegation that any plaintiff in the underlying petition used Shimmer Effects perineally during this six-year period, but it is highly unlikely that they did," wrote Bauer, a partner at HeplerBroom in Edwardsville, Illinois.
