On Monday, the Missouri Supreme Court issued an order sustaining Johnson & Johnson’s (“J&J”) last-minute Petition for writ of prohibition to stay the trial in Vickie Forrest et al. v. Johnson & Johnson et al., Cause No.1522-CC00419-01, pending in the in the Circuit Court of the City of St. Louis, Missouri. Although the Supreme Court sets forth no reasoning for the stay in its one paragraph en banc order, the trial, which was set to start on January 22, 2019, will not take place until the Court weighs in on J&J’s argument that conducting a single trial of multiple claims from multiple Plaintiffs – most of whom had potentially been improperly joined – is unfair to the defendants and even potentially in violation of J&J’s constitutional due process rights. State ex rel. Johnson & Johnson et al. v. The Honorable Rex M. Burlison, Cause No. SC97637. The Forrest case is one of an onslaught of talc cancer cases brought in the St. Louis City Circuit Court on behalf of multiple plaintiffs against J&J. Forrest, and twelve other women, are alleging that their different subtypes of ovarian or gynecological cancers were caused by their use of J&J’s talcum powder products, which allegedly contained asbestos.
In its brief to the Mo. Supreme Court, J&J argued “the claims of all 13 plaintiffs—who have been diagnosed with different types of cancers at different stages at different ages, have different medical histories, and have varying risk factors—are scheduled for a single trial…” and “by being forced to defend in a single trial the claims of 13 plaintiffs, which are governed by the law of at least nine different states and entail different types of evidence, [J&J] will be subject to unfair prejudice in violation of their Due Process right to a fair trial.” J&J further stated that the 13 Plaintiffs were improperly joined and that 12 of the 13 plaintiffs in the Forrest case do not even belong in Judge Burlison’s court, so their claims should therefore be transferred to a different venue. J&J also argued in its Petition for writ of prohibition that a joint trial would “violate Relators’ constitutional rights to a fair trial, because it would be virtually impossible for a single jury to keep straight the varying facts and laws applicable to 13 different plaintiffs’ and decedents’ cases, much less fairly determine whether each individual plaintiff – separate and apart from the others – can establish the required elements of her claims.” They went on to argue that “putting 13 cancer patients before a jury and asserting that they all did anything every day for many years would threaten to lead jurors to believe that this common factor must have played some role in their injuries” despite the fact that “millions of women have used the Products – many regularly and throughout their lives – and have not developed ovarian cancer.”
Notably, the last talc case to go to trial in front of Judge Rex Burlison, Gail Ingham v. J&J, resulted in a $4.69 billion dollar verdict against J&J in favor of the 22 women named as plaintiffs. J&J cited to the Ingham verdict as evidence of the fundamental unconstitutionality of these multi-plaintiff trials.
The trial will remain on hold while the Missouri Supreme Court considers J&J’s argument that St. Louis Circuit Court Judge Rex Burlison erred in not granting its request to sever the plaintiffs’ claims and force each plaintiff to go to trial individually in their respective proper venues.
This is the second time in recent history that the Missouri Supreme Court has granted such a Petition in a multiple-plaintiff J&J talc case over which Judge Burlison is presiding. In October 2017, the court granted J&J’s request for a writ of prohibition in the case brought by plaintiff Michael Blaes, who sued on behalf of his dead wife, however a ruling has not yet been entered. Valerie Swann, et al., Plaintiffs, vs. Johnson & Johnson, et al., No. 1422-CC09326-02; State Ex Rel. Johnson & Johnson, Relators v. Hon. Rex Burlison, Respondent. No. SC96704. We will be monitoring these cases closely for the Supreme Court’s final determination as both jurisdiction and venue continue to be hot button topics in Missouri Courts. For more information, please contact Shannon Peters.