Brief Calls Out Joining Dissimilar Claims in Missouri Talc Suit

Press Releases | April 5, 2021

SCOTUS Determining Whether to Hear Appeal by Defendant – ATRA Calls for Guidance to Establish Due Process Limitations On the Use of “Joinder”

Today in its joint friend of the court brief, the American Tort Reform Association (ATRA) urged the U.S. Supreme Court to review a landmark talcum powder case which joined 22 differing claims into one case, resulting in a multi-billion-dollar verdict out of Missouri.

“As courts reopen with case backlogs due to the pandemic, it is more important than ever to clearly outline when it is appropriate to join cases together,” ATRA President Tiger Joyce said.

ATRA called on the Court to provide guidance to establish due process limitations on the use of “joinder,” or the joining together of several parties in one lawsuit. This is typically permissible so long as the legal issues and the factual situation are consistent for all parties.

However, the Missouri case involves 22 plaintiffs, each of whom have different medical backgrounds and outcomes.

“While allowing multiple plaintiffs to litigate cases against a single defendant can create a more efficient judicial system, courts also need to ensure defendants’ due process rights are unimpaired,” Joyce said.

Allowing these dissimilar cases to be heard together as one suit means fact patterns and claims are repeated numerous times, creating an uneven playing field that favors plaintiffs and compromises the defendant’s ability to present individual issues. It forces defendants to use limited resources to address issues that affect the entire proceeding, rather than attending to each plaintiff individually.

“The facts in a case are inevitably blurred when so many plaintiffs are joined together,” Joyce said. “When a jury is presented with a group of 22 women who developed ovarian cancer and appear to have nothing else in common besides the use of a common household good, the inference of causation is natural and compelling, even if it is scientifically baseless.”

The lower court tried to solve constitutional due process concerns through extensive jury instructions. The jury heard 400 separate jury instructions, a process that took more than five hours to complete.

“After hearing 22 stories of suffering and death back-to-back, all blaming Johnson & Johnson’s products for the injuries, the jury imposed an eye-popping punitive award that is consistent only with a jury that was overwhelmed and inflamed by the sheer number of genuinely suffering plaintiffs before them,” Joyce said. “The joining of these cases created bias and prejudice against the defendant that corporations should not have to overcome.”

The U.S. Supreme Court recently addressed another concern with the Ingham case, personal jurisdiction, in its March 25 decision in Ford Motor Co. v. Montana. The Court said plaintiffs cannot engage in forum shopping by suing in a plaintiff-friendly state where they are not residents and were not injured.

“Missouri’s courts allowed nearly two dozen plaintiffs from different states who all had varying circumstances to be joined together in a friendly venue of their lawyers’ choosing,” Joyce said. “The Supreme Court can clarify its rulings on personal jurisdiction by hearing Ingham. At a minimum, it should grant, vacate, and remand Ingham in light of Ford.”

If the U.S. Supreme Court sends the case back to Missouri, the courts there can then determine whether the out-of-state plaintiffs’ claims, as well as the damages awarded to those plaintiffs, should be dismissed under the guidance given in the Ford case.

The case against Johnson & Johnson was originally decided in the City of St. Louis and the original $4.69 billion verdict is the largest talc-related verdict in history. An appellate court reduced the award to $2.1 billion but the Missouri Supreme Court refused to review the case.

“Loose venue rules and St. Louis judges’ reluctance to properly apply U.S. Supreme Court precedent encourage out-of-state plaintiffs to flock to the jurisdiction, which is regularly named among the worst ‘Judicial Hellholes’ in the country,” Joyce said. “This clogs the city’s courts, drains court resources, and drives businesses out of the state leading to job loss.”

The City of St. Louis is ranked No. 7 on the American Tort Reform Foundation’s Judicial Hellholes® list.