A Missouri appeals court wrongly allowed claims on behalf of 22 women, including non-state residents, to be tried together, J&J and Johnson & Johnson Consumer Inc. said Tuesday in a petition for certiorari. The excessiveness of the $1.6 billion punitive verdict also violates its due process rights, presenting another reason for review, the companies said.
Gail L. Ingham and 21 other women of different circumstances, with differing degrees of illness and exposure, alleged J&J powders caused their ovarian cancers.
“Evidencing the prejudicial joinder, the jury found liability as to all 22 plaintiffs and awarded $25 million in compensatory damages to each of the 22 plaintiff families,” J&J said. A Missouri appeals court upheld the $500 million actual damages award but cut the punitive component to $1.6 billion from about $4 billion. The state’s top court denied further review.
J&J also challenged the Missouri court’s finding of specific personal jurisdiction over JJCI because of its contract with a third party to bottle a talc product in Missouri. That was deemed sufficient for the plaintiffs’ claims to “arise out of or relate to” the company’s supposed Missouri contacts, the petition said.
But the “arise out of or relate to” prong of specific personal jurisdiction requires more of a connection to the plaintiff’s harm, J&J said.
Missouri’s “expansive” personal jurisdiction theory raises the same question the court is considering in a case involving where auto injury victims can sue Ford Motor Co., J&J said.
The court granted review in the Ford case to determine whether there must be a causal link between a defendant’s activities in the state and the alleged harm, or whether some other test applies to determine specific personal jurisdiction.
This petition, challenging one of the largest verdicts ever in a product liability case, gives the court “an extraordinary opportunity to resolve the most common and troubling due process questions posed by mass-tort litigation,” J&J said.
Alternatively, the petition should be held for Ford and resolved as appropriate in light of the eventual decision, J&J said.
Hogan Lovells US LLP and Orrick, Herrington & Sutcliffe LLP represent J&J.
The case is Johnson & Johnson v. Ingham, U.S., Number not available, 3/2/21.