With This Missouri Case, the Supreme Court Could Curb Activist State Judiciaries

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ATRA President Tiger Joyce writes about issues with a landmark talc case in Missouri and how the U.S. Supreme Court can step in.

This piece first appeared in the Washington Examiner.

The Supreme Court may be able to rein in activist state courts if it reviews a Missouri case that loosely linked the use of baby powder to ovarian cancer diagnoses.

The case, based on unfounded scientific claims, resulted in the largest talc-related verdict in history. Now Johnson & Johnson is asking the Supreme Court to step in and push back on state courts that ignore precedent by allowing out-of-state lawsuits as well as questionable “expert” scientific evidence.

The Missouri talc case undermined the foundational fairness of our judicial system as the trial played out in a court with very little connection to the parties involved, violating the defendant’s constitutional right to due process.

After the state’s high court refused to review Ingham v. Johnson & Johnson, which resulted in a $4.69 billion verdict, a Supreme Court evaluation is critical to address fundamental procedural defects, including inappropriately exercising judiciaries.

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The lawsuit involves 22 women tragically diagnosed with ovarian cancer, who claim their cancer was caused by asbestos allegedly found in baby powder. Though each woman had different medical histories and health outcomes, they were joined in one case and awarded the same amount. This allowed their lawyers to sidestep questions surrounding causation as the individual details blurred during the trial.

The link between baby powder and ovarian cancer is unproven, and the American Cancer Society has said the research is “mixed” and that there is “a very small increase in risk, if it exists.”

It’s easy to see why lawyers relying on such “evidence” would come to Missouri. Despite legislative reforms at the state level, the City of St. Louis Circuit Court routinely allows “junk science” to be admitted as evidence. Because of loose evidentiary standards, the lawyers were able to present “expert” witnesses to assert their unfounded claims to a jury, experts whose data was deemed unsound and unreliable by other state courts.

Missouri’s courts further violated the defendant’s right to due process when they exercised jurisdiction in the first place. Of the plaintiffs in this case, 77% are from outside of Missouri. Supreme Court precedent requires a direct connection between a plaintiff’s claims and a defendant’s in-state conduct in a jurisdiction where a trial may be heard. The court in St. Louis, which is ranked the No. 7 worst “Judicial Hellhole” by the American Tort Reform Foundation, ignored that precedent when it allowed this case to proceed. Then the Missouri Supreme Court all but gave it its stamp of approval.

Allowing the multibillion-dollar verdict to stand won’t just hurt the defendant company. Businesses and consumers across the board will be negatively affected. Companies will be forced to retreat from certain states, forgo investment in new job-creating opportunities, and roll back innovation in lifesaving research and development.

Courts that allow forum shopping and arbitrary damage awards create an unpredictable and uncertain business environment. The Perryman Group estimated that excessive tort costs in Missouri result in $2 billion lost in personal income and 32,205 jobs lost. Trial lawyers spend millions on advertising in key locales to increase their client pools, knowing they can count on “judicial hellholes” such as Missouri to allow their cases.

And it’s not just Missouri. The Supreme Court of Pennsylvania, currently ranked the No. 1 “Judicial Hellhole,” openly defied the United States Supreme Court last year when it allowed an Indiana resident to sue Ethicon, a New Jersey-based company, in Pennsylvania.

Clearly, courts in “judicial hellholes” are struggling to apply the concept of jurisdiction correctly. An objective Supreme Court ruling in Ingham v. Johnson & Johnson will both give state courts much-needed clarification and guidance and curb economic uncertainties caused by trial lawyers who file lawsuits in “judicial hellholes.”

Allowing forum shopping and unfounded scientific claims as courtroom evidence sets a dangerous precedent and threatens basic legal protections granted in our country. I urge the Supreme Court to review this case, restore balance in our state courts, and provide assurance that the rule of law will continue to be upheld in this nation.

Sherman “Tiger” Joyce is president of the American Tort Reform Association.

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