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Mistrial declared in talcum powder suit after U.S. Supreme Court limits where companies can be sued

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ST. LOUIS • A St. Louis judge declared a mistrial Monday in a talcum powder trial underway in St. Louis Circuit Court after the U.S. Supreme Court imposed limits on where injury lawsuits may be filed.

It was the second time in three weeks that the court had sided with businesses that want to prevent plaintiffs from “venue shopping” for friendly courts for their cases.

In an 8-1 ruling, the justices overturned a lower court’s decision that had allowed hundreds of out-of-state patients who took Bristol-Myers Squibb’s blood-thinning medication Plavix to sue the company in California.

State courts cannot hear claims against companies that are not based in the state when the alleged injuries did not occur there, the justices ruled.

The Supreme Court on May 30 reached a similar conclusion in a separate case involving out-of-state injury claims against Texas-based BNSF Railway Co.

The mistrial in St. Louis was declared in a trial that started June 5 in front of St. Louis Circuit Judge Rex Burlison. A Webster Groves man and two out-of-state plaintiffs sued Johnson & Johnson and its supplier Imerys Talc America over a claim that talcum powder in its products caused ovarian cancer.

In Burlison’s courtroom Monday, Jim Onder, whose firm has represented plaintiffs in each of the six trials that have been held in St. Louis, and other plaintiffs’ lawyers argued that the latest talcum powder trial should continue because Johnson & Johnson and Imerys use a company with a plant in Union in Franklin County to package and label talc products. That company is Pharma Tech Industries. The plaintiffs’ lawyers also said they believed the court had jurisdiction because one of the three plaintiffs for this trial is a Webster Groves man whose wife died of ovarian cancer in 2011.

Lawyers for Johnson & Johnson and Imerys argued that Pharma Tech was simply one of the company’s contractors, playing no role in establishing a court’s jurisdiction over out-of-state plaintiffs.

“We’re pleased our request for a mistrial was granted,” a Johnson & Johnson spokeswoman said.

Onder said the U.S. Supreme Court decision is “horrible to judicial economy,” because it means cases cannot be consolidated and tried in one place, slowing the system down.

He said he still believes Burlison’s ruling gives plaintiffs a chance to try to prove that actions by Pharma Tech hurt his clients. That would allow claims for some 1,100 other plaintiffs to still be heard in St. Louis.

The judge said he did not believe it was fair for Johnson & Johnson to have to defend what are new claims over Pharma Tech’s involvement in the plaintiffs’ attempts to establish jurisdiction.

Onder said Pharma Tech probably would be added as a defendant in future lawsuits. A Pharma Tech representative could not immediately be reached Monday.

In light of Burlison’s ruling, talcum powder plaintiffs in St. Louis will try to prove that they used and were injured by Johnson & Johnson products actually processed in Missouri, according to former St. Louis University Dean Mike Wolff.

Missouri’s “joinder rule” says that two or more plaintiffs who live either in- or out-of-state can join the same lawsuit if their claims arise out of the “same transaction or occurrence or series of transactions or occurrences,” Wolff said. The Supreme Court’s decision challenges the rule and requires a stronger connection between a plaintiff and the state where they sue.

“What the talcum powder plaintiffs are trying to do is say that there’s a Missouri connection,” Wolff said. “In the Bristol-Myers Squibb case, the plaintiffs could not show any connection between the injured plaintiffs outside the state of California and any activity in the state.”

The Supreme Court ruling Monday could wipe out five previous verdicts from trials in St. Louis against Johnson & Johnson. Four of five trials over the past 16 months ended in plaintiff’s verdicts exceeding $300 million. The four verdicts against the company have been appealed, and the appeals court had said it would await the Bristol-Myers Squibb decision before ruling.

Companies typically can be sued in a state where they are headquartered or incorporated, as well as where they have important ties. Businesses want to limit the ability of plaintiffs to shop for courts in states with laws conducive to injury lawsuits.

Plaintiffs contend that corporations are seeking to squeeze their access to compensation for injuries by denying them their day in state courts.

The underlying lawsuits filed in 2012 against Bristol-Myers and California-based drug distributor McKesson Corp. involved 86 California residents and 575 non-Californians, alleging Plavix increased their risk of stroke, heart attack and internal bleeding.

Bristol-Myers argued it should not face claims in California by plaintiffs who do not live in the state. The company is incorporated in Delaware and headquartered in New York.

The California Supreme Court ruled in August 2016 that it could preside over the case because Bristol-Myers conducted a national marketing campaign and sold nearly $1 billion of the drug in the state.

Writing for the Supreme Court majority on Monday, Justice Samuel Alito said the California court was wrong to rule that it could hear the case “without identifying any adequate link between the state and the nonresidents’ claim.”

In a dissenting opinion, Justice Sonia Sotomayor predicted that the Supreme Court’s ruling will make it harder to consolidate lawsuits against corporations in state courts and lead to unfairness for individual injury plaintiffs.

There “is nothing unfair about subjecting a massive corporation to suit in a state for a nationwide course of conduct that injures” state residents and nonresidents alike, Sotomayor wrote.

Joel Currier of the Post-Dispatch contributed to this report.

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