To date, pharmaceutical giant Johnson & Johnson has been on the losing end of three court cases in 2016 in which plaintiffs alleged that their long-term use of talc-based Baby Powder was the cause of their ovarian cancer. A fourth case, decided in favor of a plaintiff’s family earlier this year, has brought J&J’s total talc liability to $300 million – and there are more than a thousand cases still pending.

As is typical in such litigation, corporate trial lawyers for J&J have begun filing appeals, starting with a challenge to a case in which the family of Jacqueline Fox, who died of ovarian cancer at age 62 after using the company’s talc-based products for 35 years, was awarded $72 million by the jury of a federal court in St. Louis, Missouri. That appeal has been raised on the question of whether Missouri’s 22nd Circuit Court had jurisdiction over the case – and the outcome may depend on a U.S. Supreme Court ruling.

The SCOTUS case, which involves J&J competitor Bristol-Myers Squibb, is over the question of whether a plaintiff from a given state can legitimately file an action against a defendant where none of the parties have any connection. In the case being appealed, Jacqueline Fox and her family were residents of Alabama, while J&J is domiciled in New Jersey. In his argument before the court, J&J counsel Thomas Weaver argued,

We acknowledge the Missouri court has jurisdiction over the defendant with regard to Missouri resident claims, but that does not create jurisdiction over the defendant with regard to the non-resident claims, which do not arise out of or relate to the activities of the defendants in Missouri.”

Citing a recent case decided by the Missouri Supreme Court, in which the judge ruled that a lower state court had no jurisdiction over a defendant from a different state, Weaver said, “It is clear that Ms. Fox could not have brought her claim here.”

The Honorable Judge Kurt Odenwald did not discount the argument. He expressed his own frustration of why so many out-of-state lawsuits are being filed in Missouri, creating a serious backlog of cases – but also noted that Missouri’s “Joinder Rule” did not necessarily prohibit such actions by out-of-state parties from being heard.

In response, plaintiff’s counsel argued that the Jacqueline Fox case included two people who did reside in Missouri and had purchased J&J products sold in Missouri. The Fox family’s attorney, Edward Robinson, said, “J&J put this out there for the world – it can’t, in all fairness, not expect to be here.”

The case that has gone to the U.S. Supreme Court, Bristol-Myers Squibb v. Superior Court of California, San Francisco County, is now being watched closely by both the defense and the plaintiffs in talcum powder litigation. At stake is whether or not a plaintiff’s case against a defendant in civil litigation can be heard in a state where neither party has any connection. 

K.J. McElrath is a former history and social studies teacher who has long maintained a keen interest in legal and social issues. In addition to writing for The Ring of Fire, he is the author of two published novels: Tamanous Cooley, a darkly comic environmental twist on Dante's Inferno, and The Missionary's Wife, a story of the conflict between human nature and fundamentalist religious dogma. When not engaged in journalistic or literary pursuits, K.J. works as an entertainer and film composer.