Ingham v. Johnson & Johnson

• Decision Date: 23 June 2020
• Docket Number: No. ED 107476,ED 107476
• Citation: 608 S.W.3d 663
• Parties: Robert INGHAM, et al., Respondent, v. JOHNSON & JOHNSON, et al., Appellant.
• Court: Missouri Court of Appeals

608 S.W.3d 663

Robert INGHAM, et al., Respondent,

v.JOHNSON & JOHNSON, et al., Appellant.

No. ED 107476

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: June 23, 2020

Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2020

Application for Transfer Denied November 3, 2020

FOR APPELLANT: Thomas B. Weaver, William R. Price, Jr., Jeffery T. McPherson, Paul L. Brusati, Armstrong Teasdale, LLP, 7700 Forsyth Boulevard, Suite 1800, St. Louis, MO 63105, Mark C. Hegarty, Shook, Hardy & Bacon, LLP, 2555 Grand Boulevard, Kansas City, MO 64108-2613, M. Elizabeth Kellett, Thomas J. Magee, Alexandra Haar, Heplerbroom LLC, 211 North Broadway, Suite 2700, St. Louis, MO 63102, Robert M. Loeb, Robert Manhas, Orrick, Herrington & Sutcliffe, Columbia Center, 1152 15^th Street, N.W., Washington, DC 20005, Peter A. Bicks, Naomi J. Scotten, Matthew L. Bush, Edmund Hirschfeld, Lisa T. Simpson, Joshua E. Rosenkranz, Morton Dubin, Orrick, Herrington & Sutcliffe, 51 W. 52^nd Street, New York, NY 10019, Beth A. Bauer, Heplerbroom, LLC, PO BOX 510, Edwardsville, IL 62025.

FOR RESPONDENT: Eric D. Holland, Randall S. Crompton, Patrick R. Dowd, The Holland Law Firm, 300 North Tucker Boulevard, Suite 801, St. Louis, MO 63101, Thomas K. Neill, Gray, Ritter & Graham, P.C., 701 Market Street, Suite 800, St. Louis, MO 63101, John P. Torbitzky, Behr, McCarter & Potter, P.C., 7777 Bonhomme Avenue, Suite 1400, St. Louis, MO 63105, Benjamin T. Major, Kevin P. Parker, Kenneth W. Starr, Harvey Brown, Natalie Armour, W. Mark Lanier, Miriam M. Carreras, Lanier Law Firm, P.C., 10940 W. Sam Houston Parkway North, Suite 100, Houston, TX 77064.

FOR AMICUS CURIAE: Douglas R. Dalgleish, Stinson, LLP, 1201 Walnut Street, Suite 2900, Kansas City, MO 64106, Julie C. Scheipeter, Stinson, LLP, 7700 Forsyth Boulevard, Suite 1100, St. Louis, MO 63105-1821.

FOR DEFENDANT: Mary Anne Mellow, Sandberg, Phoenix & Von Gontard, P.C., 600 Washington Avenue, 15^th Floor, St. Louis, MO 63101-1313.

Philip M. Hess, Presiding Judge

Introduction

Johnson & Johnson ("J&J") and Johnson & Johnson Consumer Companies Inc. ("JJCI") (collectively, "Defendants") appeal the trial court's judgment after a jury verdict for Gail L. Ingham and twenty-one other plaintiffs (collectively, "Plaintiffs")¹ on their product liability claims. Defendants bring ten points on appeal. In their first point, Defendants argue the trial court erred in denying their motion for severance. In their second point, Defendants argue the trial court erred in overruling their objection to a statement made by Plaintiffs’ counsel during closing argument. In their third point, Defendants argue the trial court erred in finding they were subject to personal jurisdiction in Missouri on the claims of those Plaintiffs not residing in Missouri. In their fourth through seventh points, Defendants challenge the admissibility of various expert testimony. In their eighth point, Defendants argue the trial court erred in denying their motion for directed verdict because Plaintiffs failed to make a submissible case for causation. In their ninth point, Defendants argue the trial court erred in denying their motion for directed verdict because Plaintiffs failed to make a submissible case for punitive damages. Last, Defendants argue the trial court erred in denying their motion to vacate or remit the jury's punitive damages award. We reverse the trial court's judgment in part, and affirm the trial court's judgment as modified under Rule 84.14.²

Factual and Procedural Background

JJCI manufactures and sells products containing talcum powder ("talc"), a mineral used in cosmetics, across the United States. J&J is JJCI's parent company. Defendants are both incorporated and headquartered in New Jersey. Plaintiffs filed a petition ("Petition")³ against Defendants in St. Louis City Circuit Court, alleging claims for strict liability, negligence, and other torts. Plaintiffs’ Petition alleged they developed ovarian cancer

after continued use of two of Defendants’ talc products: Johnson's Baby Powder ("Johnson's Baby Powder") and Shower to Shower, including any variation, modification, or extension such as Shower to Shower Shimmer Effects ("Shimmer") and Shower to Shower Sport (collectively, "Products"). Plaintiffs allege Defendants knew for decades their Products contained asbestos fibers and other dangerous carcinogens but persisted in producing and marketing the Products despite the dangerous health hazards they posed. Plaintiffs allege Defendants mounted a concerted effort to avoid warning government regulators and public health officials, the scientific and medical community, and the public of the contents of the Products. Plaintiffs sought compensatory and punitive damages. Seventeen Plaintiffs lived, purchased Defendants’ Products, used Defendants’ Products, and developed ovarian cancer outside Missouri (collectively, the "Non-Resident Plaintiffs"). Five Plaintiffs lived, purchased Defendants’ Products, used Defendants’ Products, and developed ovarian cancer in Missouri (collectively, the "Missouri Plaintiffs").

Before trial, Defendants moved to dismiss Plaintiffs’ Petition for lack of personal jurisdiction over the Non-Resident Plaintiffs’ claims.⁴ Defendants asserted there is no general jurisdiction over Defendants in Missouri because they are incorporated and headquartered in New Jersey. Defendants asserted there is no specific jurisdiction over them in Missouri on the Non-Resident Plaintiffs’ claims because the Non-Resident Plaintiffs "reside[d] outside of Missouri, purchased and used [Defendants’] products outside of Missouri, and ‘developed’ ovarian cancer

outside of Missouri."

In their Petition, Plaintiffs alleged Defendants were subject to specific jurisdiction on their claims because JJCI had two long-term contractual relationships with Pharma Tech Industries, which is headquartered in Missouri. Plaintiffs alleged one contractual relationship involved the manufacturing, packaging, and supply of Shimmer and the other involved the manufacturing, packaging, and supply of Johnson's Baby Powder.⁵ Plaintiffs argued Pharma Tech Industries engaged in manufacturing, packaging, and supply activities relating to the Products in Missouri "at ... Defendants’ direction and under [their] control." Specifically, fifteen Non-Resident Plaintiffs argued specific jurisdiction over Defendants on their claims was proper because they used Shimmer, which was manufactured, labeled, and packaged by Pharma Tech Industries’ sister company, known as Pharma Tech Union, in Union, Missouri, under Defendants’ direction and control. The remaining two Non-Resident Plaintiffs⁶ argued specific jurisdiction over Defendants on their claims was proper because they used Johnson's Baby Powder, which was manufactured, labeled, and packaged by Pharma Tech Industries’ sister company, known as Pharma Tech Royston, in Royston, Georgia, under Pharma Tech Industries’ direction and control. In addition, all Non-Resident Plaintiffs argued Defendants were subject to specific jurisdiction because Defendants’ marketing strategy for the Products was created, in part, in St. Louis City, and marketing, advertising, distribution, and sale of the Products took place in Missouri.⁷

The trial court denied Defendants’ motion to dismiss and held that specific jurisdiction existed over Defendants on the Non-Resident Plaintiffs’ claims. The trial court found Defendants’ alleged conduct satisfied Missouri's long-arm statute because Defendants transacted business in Missouri, allegedly committed tortious conduct in Missouri, owned real estate in Missouri, and contracted with Missouri-based Pharma Tech Industries to manufacture packaging materials. The trial court further found Defendants contracted with Missouri-based Pharma Tech Industries to manufacture, label, and package the Products and Pharma Tech Industries’ relevant actions were under the direction and control of Defendants.

Although Defendants relied on Bristol-Myers Squibb Co. v. Superior Court of California , ––– U.S. ––––, 137 S. Ct. 1773, 198 L.Ed.2d 395 (2017) to argue they were not subject to specific jurisdiction in Missouri, the trial court found Bristol-Myers distinguishable. In Bristol-Myers , the United States Supreme Court found the sale of a drug that injured plaintiffs in California did not confer jurisdiction over plaintiffs injured in other states where the defendant "did not develop [the drug] in California, did not create a marketing strategy for [the drug] in California, and did not manufacture, label, package, or work on the regulatory approval of the product in California." The trial court found "Plaintiffs allege[d] that Defendants engaged in all of these activities in Missouri except working on regulatory approval." The trial court found these activities constituted sufficient minimum contacts to subject Defendants to specific jurisdiction in Missouri on the Non-Resident Plaintiffs’ claims.

Defendants also argued the trial court should sever Plaintiffs’ claims because they had numerous differences: e.g., all Plaintiffs were different ages when they developed ovarian cancer

, had different medical histories, were from different states, and used the Products at different ages and during different time periods. Defendants argued these differences precluded Plaintiffs’ claims from arising from the same transaction or occurrence. The trial court denied Defendants’ motion to sever, holding Plaintiffs’ claims against Defendants "ar[o]se out of the same basic injuries, same defect, same alleged duty, and same causes of action." The trial court also found "[t]he alleged events for which Plaintiffs s[ought] damages ar[o]se out of the same common scheme or design[;] ... [we]re connected with a common core, common purpose, or common event[;]" and had common questions of law and fact.

Plaintiffs proceeded to trial on May 31, 2018. After hearing testimony from over thirty witnesses over six weeks, the jury...