Recently, a Missouri Court of Appeals vacated a trial court’s award of $110 million in an ovarian cancer talc case, Slemp v. Johnson & Johnson, ED 106190 (Mo. Ct. App. Oct. 15, 2019). This is the third talc verdict handed down by a St. Louis jury overturned on appeal based on lack of personal jurisdiction in light of the United States Supreme Court’s ruling in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S. Ct. 1773, 198 L. Ed. 2d 395 (2017) (“BMS”).

Continue Reading Toxic Tort Monitor: Missouri Court of Appeals Vacates $110 Million Ovarian Cancer Talc Verdict

In August of 2019, following a seven-week bench trial, Judge Thad Balkman of Oklahoma’s Cleveland County District Court found biotech and healthcare company Johnson & Johnson responsible for sparking the state’s opioid epidemic through use of “disingenuous marketing schemes” used to drive the sale of its prescription painkillers. This ruling, which ordered Johnson & Johnson to pay the state of Oklahoma $572 million dollars in damages, resulted in the first ever successful lawsuit brought by the state against a defendant drug manufacturer stemming from a sole cause of action: public nuisance.

Continue Reading Toxic Tort Monitor: The Rising Trend of Public Nuisance in Large Scale Litigation

Recently, the Missouri legislature passed Senate Bill 224 outlining a brand new set of discovery rules for Missouri state-court cases. These new rules represent a comprehensive revision to the existing rules and make the Missouri rules align significantly with those of the Federal Rules of Civil Procedure. Under the Missouri constitution, the statute took effect on August 28, 2019 overriding the existing rules. However, the Missouri Supreme Court cannot promulgate a new rule with less than six months’ notice, which means that the new rule would not formally be in effect before March or April of 2020. Furthermore, the Supreme Court’s Rules Committee was recently advised that the Supreme Court has not updated its website to reflect the changes made in SB 224.

Continue Reading Toxic Tort Monitor: New Missouri Discovery Rules

Kansas City’s inaugural FUND Conference buzzed with startups and emerging companies, from social ventures still in the ideation phase to companies having just finished their Series A financing rounds.

Entrepreneurs, investors, and business partners from Kansas City and cities across the Midwest convened to hear Brad Feld deliver a powerful talk on the complexity of entrepreneurship and engage on topics ranging from the mindset behind Midwestern money to the state of early-stage investment in the region. Throw in a sleek networking event among investors, sponsors, founders, and more, and you have two-days that show we don’t coast here in the Midwest. If you missed out, here are three takeaways for every entrepreneur to consider:

Continue Reading Miss FUND Conference Kansas City? Here’s Your Wrap-Up.

Silicon Valley has been known as America’s premier innovation capital for decades. Between easy access to funding, a strong entrepreneurial network, and a long line of startups-turned-industry-giants, it is no wonder why so many successful entrepreneurs and investors do business in “the Valley.” Why, then, is a mass exodus of the Bay Area in progress? As the exorbitant cost of living continues to skyrocket and Silicon Valley investors put more money into startups located outside of the Valley, many innovators are looking for a more affordable city to plant their entrepreneurial roots.

Continue Reading Kansas City: Why You Should Start a Business Here Before It Becomes “Cool”

More than 20,000 entrepreneurs and investors came together last week at Denver Startup Week to attend the world’s largest free entrepreneurial event. One of the most informative sessions I attended was presented by Anna Mason, Partner at Rise of The Rest Seed Fund. According to Anna, 75% of venture capital dollars are funneled into just three markets (Silicon Valley, NYC and Boston). Here’s a summary of Anna’s top ten tips for increasing your shot at securing elusive venture capital investment in the rest of the country:

 

Continue Reading Top Ten Seed-Stage Startup Tips for Landing Venture Capital

For startups, social media can offer cheap and effective publicity. Startups must also be mindful that any advertising, including on social media, will require you to comply with federal regulations. While sponsored content regulations once went largely unenforced against social media based advertising, times are changing. Advertising on social media is increasingly drawing the eye of regulators. Federal Trade Commission (FTC) regulations demand honesty and transparency in advertising, and fortunately, honesty and transparency will keep your company compliant.

In 2016, the FTC sued retailer Lord & Taylor alleging the company paid online influencers to post pictures of themselves wearing a specific Lord & Taylor article of clothing. The posts failed to disclose Lord & Taylor provided the clothing for free and paid each influencer thousands of dollars.  Lord & Taylor also paid for a positive review in the online publication Nylon that appeared without notice it was a paid promotion. The product sold out quickly, but the FTC sued Lord & Taylor. The case ultimately settled, and the settlement will affect Lord & Taylor for up to twenty years.  Lord & Taylor did not make the posts that got them into trouble; they only failed to require the influencers to disclose their relationship with Lord & Taylor. Your company is responsible for others’ posts if you pay for the posts—tracking paid posts to ensure regulatory compliance is obligatory. Continue Reading Watch Out for the FTC with your #SponCon

Last year, a St. Louis city jury sent shock waves across the world, awarding 22 plaintiffs nearly $5 billion in compensatory and punitive damages in a lawsuit against Johnson & Johnson over claims its asbestos-contaminated talcum powder caused ovarian cancer in women who used the company’s product for years in the case of Ingham v. Johnson & Johnson, No. 1522-CC10417 (Mo. Cir. Ct. St. Louis City July 12, 2018). Prior to trial, Imerys Talc America Inc., a co-defendant supplier of talc to Johnson & Johnson, settled plaintiffs’ claims for at least $5 million.[1]

While previous ovarian cancer trials hinged on arguments that talc itself is carcinogenic, plaintiffs in Ingham argued their cancer was caused by asbestos particles mixed in with the talc. The impact of this verdict and similar previous decisions across the country has been damaging enough to prompt talc supplier Imerys Talc America Inc., to file for Chapter 11 bankruptcy, citing a lack of financial clout to defend lawsuits alleging that Imerys’ talc caused ovarian cancer or asbestos-related mesothelioma.[2] Continue Reading Toxic Tort Monitor: Looking Ahead: The Future of Ovarian Cancer Litigation

A former laboratory technician at a biopharmaceutical company and his wife were awarded close to $70 million by a Florida state jury over claims he developed mesothelioma resulting from exposure to asbestos-containing products at work. At the end of the two-week trial, the jury found against GEA Mechanical Equipment (“GEA”), an equipment company, for its negligence in distributing the alleged asbestos-containing products and failing to adequately warn plaintiff of the related health hazards. Continue Reading Toxic Tort Monitor: Florida Jury Awards $70M in Mesothelioma Verdict

The Eastern District of Pennsylvania in Sullivan v. A. W. Chesterton, Inc., et al., No. 18-3622 (E.D. Pa. June 6, 2019), grappled with the constitutionality of the Pennsylvania statutes, 15 Pa.C.S. § 411 and 42 Pa.C.S. § 5301, (the “PA Statutory Scheme”) requiring out-of-state businesses to register in the state, which in turn functions as consent to general jurisdiction. This issue became salient only in light of the Supreme Court’s ruling in Daimler AG v. Bauman, 571 U.S. 117 (2014) (holding corporation is “at home” only where it is incorporated or maintains its principal place of business). The Eastern District held that the PA Statutory Scheme requiring out-of-state corporations to register before they conduct business in the state and thereby consent to general jurisdiction in Pennsylvania offends the Due Process Clause and is unconstitutional. Continue Reading Toxic Tort Monitor: Pennsylvania Federal Court Holds Statutory Scheme Requiring Out-of-State Corporations to Register to Do Business and Consent to General Jurisdiction is Unconstitutional