Johnson & Johnson Seeks Change of Venue for Talcum Powder MDL

Michael GrossmanNovember 21, 2016 6 minutes

I wrote recently about the results of the third test case in the ongoing talcum powder lawsuit against Johnson & Johnson. For those emerging from an Internet-free cave for the first time in a few years, allow me to quickly recap: the allegations against the company involve the idea that talc, the primary ingredient in talcum powder, is allegedly carcinogenic. Women who have routinely applied the powder for years to their genital regions for moisture and odor control have been found to run an increased risk of ovarian cancer. Many women who have developed this serious condition are now coming forward to take Johnson & Johnson to task for negligently releasing a product that can cause life-altering damages.

So far, all three "test" claims have been tried in a St. Louis district courtroom. All three have resolved in favor of the plaintiffs, to the tune of tens of millions of dollars' worth of damages for each woman. With approximately 2,500 plaintiffs seeking redress, the company has understandably begun to seek a change of venue--the relocation of the remaining cases to be tried in another district that hopefully might be more sympathetic to the defendants.

Change of Venue: Arguments from the Defense

When hundreds--even thousands--of plaintiffs are poised to sue for essentially the same damages, the cases will often be consolidated into a multi-district litigation, or MDL. Because it is not feasible to simultaneously try thousands of cases, the justice system will usually hold bellwether trials, in which particular claims are selected to be initially tried. This serves the purpose of showing all involved parties what they might reasonably expect when the remaining claims are litigated. Defendants who refused to settle with plaintiffs might learn from bellwether trials that they are better off pursuing out-of-court agreements instead of risking repeated losses through jury decisions.

One might believe Johnson & Johnson would best be served by learning a lesson from the jury's findings against them in three of three cases, but they are not so easily deterred. Experts have ventured several ideas about why the company may continue fighting even at a cumulative loss so far of approximately $195 million:

  • The product is a recognized staple of the company's household products arm.
    Johnson & Johnson produces and markets all kinds of material, from household cleaners to prescription medications. As a company, they are bound to protect their corporate image for the sake of future sales and market share. It's true that they wear many hats, yes, but they also need to protect that hat-stack if a chapeau gets knocked off their heads. Settling with the remainder of the plaintiffs would be tantamount to admitting guilt, which could have a crippling effect on the rest of their vast catalog of products. Given the company's net profits of several billion dollars a year, they can afford to take a few hits in the pursuit of deniability. Moreover, a settlement would not necessarily cap the company's liability to consumers, because they have neither pulled their baby powder off the shelves, nor provided warning labels, meaning generations to come might be found to have suffered similar damages.
    Given the pitfalls of settling these cases, Johnson & Johnson will keep fighting as long as there is hope of not being found liable. They will aggressively push for a change of venue to an area where their defense may be more effective, and until such time as they can secure that change, they will also appeal the verdicts that were decided in the Missouri district court.

  • St. Louis' district court is believed to be too plaintiff-friendly.
    The district court chosen by attorneys for the bellwether cases is apparently known to attorneys as a venue with a historical lean toward injured plaintiffs. St. Louis and a few other courts around the country have a record of deciding in favor of victims, and this fact has been leveraged by attorneys in the past seeking a sympathetic jury. This is not to say that cases are not heard fairly in the St. Louis court; as in any other court system, victory is not a foregone conclusion for either side. However, Johnson & Johnson evidently feels that the venue may have had an impact on the scope of damages awarded to the plaintiffs.

  • Johnson & Johnson doesn't feel the venue is appropriate for further trials.
    Naturally, the company is not crazy about multimillion-dollar verdicts levied against it. Its attorneys maintain that an unfair bias is exhibited against the company in this venue for a number of reasons. Firstly, the defense alleges that the plaintiffs' attorneys spent over $10 million on national and local advertising related to the case. It was further suggested that a disproportionate amount of that advertising was concentrated in St. Louis, and therefore any jury assembled from the city's residents likely carried with it an implicit and subconscious bias created with those advertisements. The plaintiffs' attorneys naturally deny these allegations.
    Furthermore, Johnson & Johnson alleges that the venue is inappropriate because the majority of the talcum injuries did not in fact occur within the Missouri court's jurisdiction. An MDL allows nationwide claims to be consolidated at a particular venue for ease of processing. However, given that the injuries happened all across the country, other venues could be considered viable as well. Johnson & Johnson is based in New Jersey, and prior to the consolidation received some favorable judgments in their home state.

  • The science behind the claims is not unimpeachable.
    Numerous studies have been conducted that link long-term talcum use to the development of ovarian cancer, but Johnson & Johnson's attorneys have countered by suggesting that more comprehensive studies have not yielded the same results. The judge formerly hearing these cases in New Jersey went so far as to dismiss the testimony of the plaintiffs' experts on the grounds that the information they provided was too speculative in nature.
    While their arguments have not yet been enough to sway jury decisions, it's possible that a pool selected in a different district or city may have a different, more skeptical opinion of the studies linking talcum and cancer. Given that researchers currently can't seem to reach consensus on the carcinogenic quality of contemporary talcum products, Johnson & Johnson seems to feel it may be able to sway the opinions of a jury in another part of the country.

Thus far, the St. Louis judge has rejected Johnson & Johnson's arguments to justify a change of venue. They plan to make similar arguments to the Missouri Court of Appeals. If they can succeed in showing that the St. Louis court should not have presiding jurisdiction, the cases will have to be re-filed in another court.

What Does All This Mean?

While we all may have varying degrees of sympathy for Johnson & Johnson depending on our own experiences with their line of products, there's an important principle at work here that we need to examine.

Change of venue sounds completely reasonable, doesn't it? If cases aren't going in your favor and you genuinely believe it has to do with the forum itself and not necessarily with the details of your case, it seems logical to go further afield for a more neutral jury that won't be biased against you. One of the most important aspects of civil law is that a neutral arbiter, be it judge or jury, bases a decision entirely on the strength of the evidence presented by either side. Personal leanings on the matter are not supposed to be involved, and juries are carefully selected from a larger pool to try and control the amount of bias toward either plaintiff or defendant. Should this system somehow be compromised, it's not unreasonable to look elsewhere for resolution.

This is not an uncommon strategy, and superficially it seems like a sound tactic. If you don't feel you will receive fair judgment in a venue--or, if like Johnson & Johnson, you view multiple decisions against you as evidence of unfair bias instead of a sign you should start looking into settling out of court--seeking a different forum might be in your best interests. However, according to proponents of tort reform, this process is called forum shopping, which is defined thusly:

"Colloquially, forum shopping is the practice adopted by some litigants of having their legal case heard in the court thought most likely to provide a favorable judgment. Some jurisdictions have, for example, become known as 'plaintiff-friendly' and so have attracted litigation even when there is little or no connection between the legal issues and the jurisdiction in which they are to be litigated."

Tort reform advocates suggest that it's unfair when plaintiffs engage in this behavior, seeking out courts more likely to find in their favor. Alarms sound throughout the tort reform community when these activities are reported, followed by injunctions to lawmakers that such practices should be curbed by codified laws.

Where then is the outrage when a corporate defendant seeks to leverage the same principle? It seems something of a double standard not to lambast Johnson & Johnson for trying to change playing fields because they don't like the score at this one, yet reformers remain silent in the wake of these petitions to change venues. In a completely impartial system, "preferable jurisdiction" would not be a term for consideration, since all venues would offer the same chance at justice. However, human nature being what it is, there is the possibility that certain areas of the country will be friendlier to defendants over plaintiffs, or might at least exercise a great deal more restraint when determining damages. This would obviously appeal to Johnson & Johnson, who are in the hole almost $200 million with thousands more cases to go.

Though its advocates would vigorously debate it, tort reform is essentially a tool used by business lobbyists to suppress the options of injured plaintiffs. Concealed in their rhetoric about "frivolous lawsuits" is the goal of protecting businesses' interests by preventing injured people from seeking compensation. It belies a lack of faith in the current justice system's ability to resolve claims the way they should be resolved, as though a competent judge and jury will be fooled by chicanery and exaggerated or fabricated damages.

By remaining silent and tacitly accepting Johnson & Johnson's petition to seek a more suitable (read: more hospitable to defendants) venue, tort reformers are throwing their lot in with the side that is telling ovarian cancer patients they are entitled to nothing. The company is within its rights to zealously defend itself, and in that regard can and should try to seek an optimal forum.