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Evan Tager Discusses Whether A Case Involving Baby Powder Might Yield The Next Blockbuster Supreme Court Punitive Damages Decision

By Evan M. Tager on March 18, 2021
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On March 11, I joined Tiger Joyce, President of the American Tort Reform Association, and Dan Mehan, President and CEO of the Missouri Chamber of Commerce and Industry, in a Washington Legal Foundation webinar about the issues raised in a recently filed petition for certiorari seeking review of a $2.1 billion Missouri state-court judgment.  You can view the webinar here.

The judgment arises out of claims that Johnson & Johnson’s iconic baby powder causes ovarian cancer.  A St. Louis trial court allowed 22 plaintiffs, including 17 non-residents of Missouri, to pursue their claims together.   The jury found J&J and its subsidiary Johnson & Johnson Consumer Inc. (“JJCI”) jointly and severally liable for $25 million in compensatory damages to each of the 22 plaintiffs.  It also imposed punitive damages totaling $4.1 billion against J&J and JJCI.

The Missouri Court of Appeals held that there was no personal jurisdiction over the non-residents’ claims against J&J and that, as to two of the non-residents, there was no personal jurisdiction over the claims against JJCI either.  But it held that the claims of the remaining non-residents against JJCI had a sufficient connection to Missouri to support exercising personal jurisdiction over JJCI.  It accordingly reduced the total compensatory damages to $500 million, with J&J being jointly and severally liable for $125 million of the total.  It then reduced the punitive awards against J&J and JJCI in proportion to the reduction of the compensatory damages, yielding total punitive damages of more than $1.6 billion.

J&J and JJCI raise three questions in their cert. petition.  First, they contend that the trial court deprived them of due process by resolving in a single trial the claims of 22 plaintiffs involving materially different facts and the laws of multiple states.  Second, they contend that the punitive awards against J&J and JJCI are unconstitutionally excessive.  Third, they argue that the Missouri courts lacked personal jurisdiction over the claims against JJCI brought by the remaining 15 non-resident plaintiffs.

During the webinar, my fellow panelists and I had the opportunity to discuss each of the three issues.  But readers of this blog are likely to be especially interested in our discussion of the punitive damages issue.  I hope that you will find it illuminating.

Photo of Evan M. Tager Evan M. Tager

Evan Tager is a member of the Supreme Court & Appellate practice in Mayer Brown’s Washington, DC office. Identified by Chambers USA as one of America’s leading appellate lawyers for the past eight years, and profiled by Legal Times as a leading appellate…

Evan Tager is a member of the Supreme Court & Appellate practice in Mayer Brown’s Washington, DC office. Identified by Chambers USA as one of America’s leading appellate lawyers for the past eight years, and profiled by Legal Times as a leading appellate lawyer, Evan has been integrally involved in a range of issues of paramount importance to the business community, including punitive damages, class certification standards, admissibility of expert testimony, and enforceability of arbitration agreements.
Read Evan’s full bio.

Read more about Evan M. TagerEmail
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  • Posted in:
    Class Action & Mass Torts
  • Blog:
    Guideposts
  • Organization:
    Mayer Brown

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