Reeling from multiple court defeats over claims the company’s talcum powders caused ovarian cancer, Johnson & Johnson attorneys are taking their arguments to appeals court, hoping to turn back liabilities that have reached $300 million so far.
With thousands of cases yet to be decided, J&J is first challenging a $72 million verdict that went against the drugmaker early last year. And in an interesting twist of legal fate, a fellow Big Pharma's Supreme Court case could help sway judges in J&J's favor—or not.
In their appeal, J&J’s attorneys insist that the Missouri district court lacks jurisdiction because the plaintiff lived in Alabama and J&J is based in New Jersey. The plaintiff in this case, Jacqueline Fox, died in 2015 after several decades of using J&J’s talc powder. Fox didn’t purchase J&J’s product in Missouri, either, and nor was she injured there, J&J’s brief contends.
J&J’s appeal could pivot on Bristol-Myers Squibb v. Superior Court of California, a case BMS has taken all the way to the U.S. Supreme Court, according to the National Law Journal. Argued last month, that case centers on whether plaintiffs can bring a claim in a state where they have no connections.
With that in mind, one judge in Wednesday’s hearing said the panel would wait until the Supreme Court decides Bristol’s case before making its own ruling, according to the publication.
Jurisdiction is only one critical issue in the talc litigation, however; J&J continues to maintain that there’s no link between talc and ovarian cancer. In the company's appeals brief, filed in January, the drugmaker challenges expert witness testimony in addition to taking issue with the venue. One witness who backed the talc-cancer link offered evidence that “is not a product of reliable methods or sound science," J&J's brief states.
Fox’s case, decided in February 2016, was the first talc verdict featuring damages to go against J&J. Since then, the company has suffered three other defeats related to the product, with total liabilities coming in at $300 million. J&J has pledged to appeal the cases.
Despite the losses, the drug giant did manage to win one case in St. Louis, and it persuaded a New Jersey judge to toss two others. At the time of its last court setback, a spokesperson said J&J’s wins “highlight the lack of credible scientific evidence behind plaintiffs’ allegations."
According to a recent 10-K filed with the SEC, J&J faces 3,100 talc liability suits, with many in St. Louis court. J&J has argued that the jury pool in St. Louis is tainted due to millions in ad spending by its opponents.