Thursday, July 27, 2017

To gain it all and lose it all in one day

Note: The subject of this post is not the attorney with the same phonetically-sounding but different spelled name at Baker Donelson.

Ridgeland attorney Allen Smith has racked up an impressive series of wins in lawsuits against Johnson & Johnson in St. Louis over products liability claims involving talc powder. However, the U.S. Supreme Court might have just thrown a huge freeze over his success in one day with a June ruling. 



Mississippi Today published a glowing account of Mr. Smith's courtroom success by Patsy Brumfield over a year ago.  She reported in David v. Goliath:

There’s a Mississippi connection to the latest jury verdict against Johnson & Johnson over its talc products: Ridgeland attorney R. Allen Smith is the David going against the health care products giant.

On Monday, a St. Louis, Mo., jury ordered Johnson and Johnson to pay $55 million to a woman who claimed use of their talc products caused her ovarian cancer.

That follows a Feb. 24 verdict, also in St. Louis, that Johnson  & Johnson should pay $72 million to the family of an Alabama woman, Jacqueline Fox, who died from ovarian cancer just months before the trial.

Those cases are just two of more than 1,200 lawsuits pending against the company and led by Smith....

 Closer to home, he and others are assisting the Mississippi Attorney General’s office with a complaint against Johnson & Johnson and others accusing them of violating the state’s Consumer Protection Act. Rest of article.
Mr. Smith enjoyed more success this year as a St. Louis jury awarded his client a $110 million verdict.  The St. Louis Record reported on May 8:

Jurors hit Johnson & Johnson with a $110 million judgment last week as they drew a link between the company’s talc powder products and a Virginia woman’s ovarian cancer.

Jurors in the 22nd Circuit Court made their decision in favor of the plaintiff, 61-year-old Lois Slemp, who was too sick from cancer treatments to appear at the trial. They called on J&J, makers of Baby Powder and Shower to Shower, to pay Slemp compensatory damages of more than $5.4 million and punitive damages of $105 million.  Imerys Talc America Inc., J&J’s talc supplier, was fined $50,000 in punitive damages by the jury, which said Imerys was 1 percent at fault in the case.

In responding to the verdict, which was the highest such payout in a series of talc trials involving J&J, both defendants expressed sympathy for those affected by ovarian cancer, but they stood by their position that talc does not heighten the risk of ovarian cancer. Rest of article.

Unfortunately for Mr. Smith and his clients, Bristol-Myers has been fighting similar lawsuits elsewhere and struck gold at the U.S. Supreme Court in a San Francisco case.  Reuters reported on June 20:

Johnson & Johnson is seizing upon a U.S. Supreme Court ruling from Monday limiting where injury lawsuits can be filed to fight off claims it failed to warn women that talcum powder could cause ovarian cancer.

New Jersey-based J&J has been battling a series of lawsuits over its talc-based products, including Johnson's Baby Powder, brought by around 5,950 women and their families. The company denies any link between talc and cancer.
A fifth of the plaintiffs have cases pending in state court in St. Louis, where juries in four trials have hit J&J and a talc supplier with $307 million in verdicts. Those four cases and most of the others on the St. Louis docket involve out-of-state plaintiffs suing an out-of-state company. 

On Monday, the Supreme Court ruled 8-1 in a case involving Bristol-Myers Squibb Co that state courts cannot hear claims against companies that are not based in the state when the alleged injuries did not occur there. 

The ruling immediately led a St. Louis judge at J&J's urging to declare a mistrial in the latest talc case, in which two of the three women at issue were from out of state. It also could imperil prior verdicts and cases that have yet to go to trial. Rest of article.
 The Supreme Court stated in a summary of the opinion:

A group of plaintiffs, most of whom are not California residents, sued Bristol-Myers Squibb Company (BMS) in California state court, alleging that the pharmaceutical company’s drug Plavix had damaged their health. BMS is incorporated in Delaware and headquartered in New York, and it maintains substantial operations in both New York and New Jersey. Although it engages in business activities in California and sells Plavix there, BMS did not develop, create a marketing strategy for, manufacture, label, package, or work on the regulatory approval for Plavix in the State. And the nonresident plaintiffs did not allege that they obtained Plavix from a California source, that by Plavix in California, or that they were treated or their injuries in California. (Opinion posted below.) 


Johnson & Johnson wasted no time in using the new ruling to its advantage in the St. Louis cases.   The Courtroom View Network reported on June 21: 

A Missouri judge declared a mistrial on Monday in a lawsuit over the supposed link between Johnson & Johnson’s talc-based hygiene products and ovarian cancer, after the U.S. Supreme Court ruled plaintiffs cannot file state court lawsuits in states where their alleged injuries did not occur.

Judge Rex Burlison made the decision a week into the trial, which for the first time in a talc case involved claims from the families of three deceased women being heard concurrently.J&J and co-defendant Imerys Talc America made a motion for the mistrial shortly after the Supreme Court published an 8-1 decision in the case of “Bristol-Myers Squibb Co.v. Superior Court of California.”

The mistrial is a major victory for Johnson & Johnson, as most of the 1,700 pending lawsuits accusing the company of withholding knowledge from the public about talc’s supposed cancer risk are centralized in Missouri. The state’s lenient joinder rules make it relatively easy for nonresident plaintiffs to file lawsuits in mass tort cases, and high-profile verdicts in previous talc trials spawned numerous similar claims. Rest of article.
Why so many lawsuits from out of state plaintiffs?

Missouri’s joinder rule allows nonresident plaintiffs to become part of an existing lawsuit if their claims arise from a similar set of circumstances. One of the deceased women in the current trial lived in Missouri, but the other two allegedly developed ovarian cancer while living in Texas and Virginia. All three blamed their illness on using products like Johnson’s Baby Powder and Shower to Shower for decades.
 

The Supreme Court decision could also wipe out more than $300 million awarded so far in four of the previous five talc trials in St. Louis, since a Missouri appeals court indicated it would wait for the Supreme Court’s ruling in the BMS case before determining whether a $72 million talc award from 2016 should be upheld.
The plaintiff in Mr. Smith's $110 million verdict, Lois Slemp, is a resident of Virginia.  It is a certain bet that Johnson & Johnson will appeal. One can probably safely assume that Mr. Smith will not want to watch Meet Me in St. Louis nor listen to My Heart's in San Francisco.  


Allen Smith, Esq.. Credit: Mississippi Today

17 comments:

Anonymous said...

just thrown a huge freeze over his success

I see what you did there.

Anonymous said...

Looks like Mr. Smith may need to take a powder.

Anonymous said...

Can Johnson & Johnson get their money back from case they already settled?

Anonymous said...

>>>Can Johnson & Johnson get their money back from case they already settled?<<<


But of course!


J&J just need to file a new appeal with Judge Judy and stop payment asap!


Anonymous said...

Since the Supremes have now derailed Mr. Smith's gravy train, he should have more time to focus on ...... other litigation that he "may" be involved in. Right, KF?

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Anonymous said...

Mr. Smith will get more publicity on Friday when his name is released in another document !

Anonymous said...

News flash

J&J hasn't settled a single one of these cases.

No way they could and survive

Cornoyer said...

Glad to hear it. Cases were out in left field. He can go back to drafting wills and closing on real estate transactions.

Kingfish said...

For a fleeting moment, he was a member of the Kings of Tort in Mississippi.

Anonymous said...

@12:06...what you talkin bout willis?

Anonymous said...

Well of course the Supreme Court was correct on this.
When folks are made to use the proper courts, jurors have to live with their decisions.
If jurors in Jackson let criminals back onto the street, they get to worry if said criminals may one day rob them or people the care about.
Back before Mississippi tort reform there was a certain county that gained a reputation for outrageous jury verdicts. Over time more and more companies stopped doing business there. Plants closed. Stores closed. Some companies refused to allow any deliveries in the county. So those jurors were driving jobs away and making everything that was sold in the county cost more.
This is as it should be.

Anonymous said...

I'm not a lawyer so would those who are explain the sentence with the double negative?
Does this ruling mean the end of class action suits?
Or, does it mean that personal injury suits can only be heard where the plaintiff resides?
Or does it mean the personal injury has to occur where the plantiff resides AND the incorporation took place or will the existence of a manufacturing plant do?
Or, does it mean that only those who reside in the State of incorporation can sue over a product sold in every State?

I could care less whether or not a MS lawyer has had a comeuppance. I do care whether or not manufacturers can continue to sell products they know or later learn can be hazardous to health without notifying the consumer ( that'd be me) of the hazard.

Mutt the Hoople said...

If they made lawsuits "Loser Pays", you wouldn't have so many Ole Miss ambulance chasers running around destroying Industry and free enterprise in America.

Anonymous said...

Took JJ way too long to come to the point. Had to read through tons of minutia to finally get the the Supreme ruling. Reminds me of those new tickler stories on facebook where you have to click through 'NEXT' fifteen times and look at commercials, to get to the end of a simple story.

Anonymous said...

11:02 - Ah, that's too bad your valuable time has been wasted. Suggest you do your own research. Then you can view the information in any order you choose.

Kingfish said...

Get over it and go take your Ritalin.

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