[caption id="attachment_10939" align="aligncenter" width="620"]
Photo: Alexander Tolstykh/Shutterstock.com[/caption] The nearly $4.7 billion verdict that a St. Louis jury handed down Thursday against Johnson & Johnson over its talcum powder was by far the largest verdict seen out of a litigation that has already produced several eye-catchingwins for plaintiffs. However, the ruling also came less than two weeks after a $55 million verdict raising similar claims was reversed, and, last year, another multimillion talc verdict was also vacated. So what are the odds the latest verdict will meet the same fate? At this point there is no easy answer, but one thing seems clear: A large part of the appeal is likely hinged on an interpretation of the U.S. Supreme Court's decision in Bristol-Myers Squibb v. Superior Court of California, which made it harder for nonresident litigants to pursue claims in multi-plaintiff lawsuits. "I believe J&J will raise Bristol-Myers Squibb, but will be unsuccessful," lead trial attorney for the plaintiffs, Houston-lawyer Mark Lanier, said in an emailed statement. "It will be hard to say they never availed themselves of the jurisdiction in light of our record." A spokeswoman for J&J did not return a message seeking comment Friday about possible appellate issues. The verdict that came down Thursday included $550 million in compensatory damages and $4.14 billion to 22 women claiming J&J's talcum powder caused their ovarian cancer, and soon after it was announced the pharmaceutical giant said it planned to appeal. The brief statement the company issued after the verdict indicated that the company might seek to appeal on issues about how the case was tried, saying the verdict was "the product of a fundamentally unfair process that allowed plaintiffs to present a group of 22 women, most of whom had no connection to Missouri, in a single case all alleging that they developed ovarian cancer." "The result of the verdict, which awarded the exact same amounts to all plaintiffs irrespective of their individual facts, and differences in applicable law, reflects that the evidence in the case was simply overwhelmed by the prejudice of this type of proceeding," spokeswoman Carol Goodrich said. "Every verdict against Johnson & Johnson in this court that has gone through the appeals process has been reversed and the multiple errors present in this trial were worse than those in the prior trials which have been reversed.” University of Richmond Law School professor Carl Tobias said the company would need to make a strong showing that there was prejudicial juror confusion in making that arguments, but he said such a claim could be an effective attack. "I wouldn't dismiss it out of hand," he said. "That could cause juror confusion, I suppose, if you're trying to track too many people and their differences." While Missouri courts sometimes consolidate cases for trial, the recent verdict was the product of the first talc case that was consolidated for trial in Missouri, so any appellate issues raised over that practice would be unique to this case. However, J&J has developed a successful track record of overturning talc verdicts based on the argument that the plaintiffs lacked personal jurisdiction under the Supreme Court's 2017 Bristol-Myers Squibb decision. The $55 million verdict that was reversed in late June cited that decision, which made clear that out-of-state plaintiffs can’t sue companies where the defendants aren’t considered to be “at home." The decision to toss the $55 million verdict largely mirrored the reasoning behind an Oct. 17 decision by the Missouri Court of Appeals that reversed a $72 million verdict, which also relied on Bristol-Myers Squibb. Bristol-Myers Squibb also wiped out many of the talcum powder cases in Missouri state courts, some of which were removed to federal court and transferred to the multidistrict litigation against J&J in New Jersey, reversed a $417 million verdict in California and also tossed about 600 other claims that had been pending in the Golden State. The latest verdict, however, came from the first talc trial since the Bristol-Myers decision, and the plaintiffs are also pointing to new evidence they say establishes personal jurisdiction under Bristol-Myers Squibb. Specifically, the 22 plaintiffs contend that Pharma Tech Industries—an Athens, Georgia-based company with a plant in Union, Missouri—allegedly bought the raw talc and bottled it for Johnson & Johnson. "The two cases in Missouri that were tossed under BMS were both tried before the BMS decision came down. So the plaintiffs’ lawyers didn’t know to put in evidence that would beat the Bristol-Myers Squibb criteria," Lanier added in his email. "We were fully up on BMS, and put in loads of evidence that show jurisdiction beyond simply selling the product in Missouri. J&J ran focus groups on the products in Missouri, contracted with a Missouri company to bottle the products, and even paid huge sums in lobbying money in Missouri to influence the law. J&J has contended that those alleged ties were insufficient to establish jurisdiction, but, in April, St. Louis Judge Rex Burlison, who oversaw the latest trial, determined that connection was enough to clear the jurisdictional hurdle Bristol-Myers established. The alleged links continued to be an issue during trial, and counsel for J&J raised questions about the testimony of 12 plaintiffs who claimed they suddenly remembered using the one product that Pharma Tech had bottled. Orrick, Herrington & Sutcliffe partner Peter Bicks noted to jurors that the product Pharma Tech made was very short-lived, and the plaintiffs only remembered using the product after speaking with attorneys. However, Lopez McHugh attorney Michael Katz, who represents plaintiffs in products liability cases but is not involved in the talc litigation, said Pharma Tech should create enough of a connection to establish jurisdiction. "I think where you have some portion of the manufacturing, or some division of a manufacturer [in the state], that's more than sufficient to keep a case for venue," he said. "I'm not very concerned." University of Georgia School of Law professor Elizabeth Burch, however, said there are still some unanswered questions about the limits of Bristol-Myers Squibb. For instance, she noted that the question of whether purchasing a product in a state where the product maker has some business connections is sufficient to establish jurisdiction remains an open question. "I don't think Bristol-Myers Squibb answers the question of whether those have to be linked," she said. "That tees up the issue here." Although the size of the verdict is the highest yet out of the talcum powder cases, Katz said the seriousness of the claims and the fact that it is meant to encompass 22 plaintiffs means it is unlikely to be overturned on arguments that the award was excessive. "You never know. Something that huge could go either way on appeal, but you want to think that with so many plaintiffs involved, it seems a pretty fair verdict," he said. Ultimately, Tobias said, given Lanier's track record, he believes most of the verdict is likely to withstand an appeal, and J&J might want to consider settling the litigation, rather than litigating so aggressively. "In terms of exposure and in terms of publicity, I think they need to seriously consider settlement," he said.