In prescription medical product liability litigation, size matters. It doesn’t matter as much as having good products and winning arguments, but when the name of the game on the other side is to drag defendants into pro-plaintiff forums and then use every procedural trick in the book to try to “ring the bell” on some questionable legal theory, then size can matter a lot.
A case in point. Remember that string of shockingly large talc verdicts that spewed forth from St. Louis a couple of years ago? Well, not too long ago the largest of them – a $110 million whopper – went “poof.” See Slemp v. Johnson & Johnson, ___ S.W.3d ___, 2019 WL 5151278 (Mo. App. Oct. 15, 2019). Turns out, there was no personal jurisdiction in the first place. The plaintiffs’ procedural gambit of joining scores of miscellaneous plaintiffs from all over the country with one St. Louis plaintiff was both unconstitutional and contrary to the rules of procedure:
[Defendants] argue [plaintiff’s] claims did not give the trial court personal jurisdiction over [defendants]. Both parties agree this case is governed by this Court’s prior cases, Estate of Fox v. Johnson & Johnson and Ristesund v. Johnson & Johnson, 558 S.W.3d 77 (Mo. App. E.D. 2018). Both of those cases involved plaintiffs who were not residents of Missouri who had joined their claims with those of Missouri residents. In those cases, . . . the United States Supreme Court decided BMS, which clarified the existing law on specific personal jurisdiction requiring the trial court have personal jurisdiction over the defendants with regard to each claim, rather than establishing personal jurisdiction by allowing non-residents to join similar claims with those of Missouri residents. In Fox and Ristesund, this Court found that, due to the advanced procedural posture of the cases, remand was inappropriate as the plaintiffs had had ample opportunity to present all arguments for personal jurisdiction to the trial court and were unable to do so successfully.
Id. at *3. Indeed, the error was so evident by the time Slemp was decided that the plaintiffs admitted it:
[Plaintiff] concedes that . . ., the record establishes that, per BMS, the trial court lacked personal jurisdiction over [defendants].
Id. at *4.
There’s one other thing, though. To get to that point, the same defendants had to appeal – and win – the two previous cases, Fox (discussed here) involving a $72 million verdict, 539 S.W.3d at 50, and Ristesund (discussed here) a verdict of $45 million, 558 S.W.3d at 79. Actually, there are billions of other things, because also hanging over these defendants’ heads during these appeal was a $4.7 billion verdict in an almost certainly improperly consolidated trial of 22 plaintiffs – a trial that also suffers from the same jurisdictional deficiencies that made the Slemp, Fox, and Ristesund verdicts not worth the paper they were printed on. That blatantly prejudicial consolidation occurred in the same court that, in Slemp, was held to have committed another procedural impropriety when it purported to revoke with defendants’ appeal rights retroactively. Slemp, 2019 WL 5151278, at *2 (“the trial court’s authority to amend its August 3, 2017 judgment on its own motion ended 30 days after the judgment was entered, well before it did so on November 29, 2017, when it revoked the Rule 74.01(b) appeal certification”).
Thus, in order to vindicate their Due Process rights regarding personal jurisdiction in these matters, the defendants had to litigate with over $5 billion in potential liability hanging over their heads. Not too many defendants have the wherewithal (or the mindset) to do that. And this isn’t the first time. We’ve chronicled the misadventures of repeated multi-plaintiff “bellwether” show trials in the Pinnacle Hip MDL. That involved another Johnson & Johnson subsidiary, and saw other nine and ten figure verdicts – the only one actually appealed to decision being reversed. In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Products Liability Litigation, 888 F.3d 753 (5th Cir. 2018). Another Fifth Circuit decision, on mandamus, characterized some of the MDL judge’s procedural rulings as “grave error.” In re Depuy Orthopaedics, Inc., 870 F.3d 345, 351 (5th Cir. 2017). Ultimately, that MDL settled – we assume for a lot less than these verdicts suggested − after the Fifth Circuit indicated that it might consider removing the MDL judge. 888 F.3d at 792 n.83. So once again, size mattered. J&J was able to vindicate its procedural rights (and many of its legal positions) only by litigating in the shadow of billions in questionable liability judgments.
That’s the way the game is unfortunately played in all too many jurisdictions these days. Multiple plaintiffs, often aided by procedures of questionable Due Process constitutionality, strive to bring back verdicts in the hundreds of millions or even billions of dollars. Any defendant hit with one of those is then subjected to what courts have referred to as “hydraulic pressure” to settle in order to “avoid the risk, however small, of potentially ruinous liability.” E.g., Hevesi v. Citigroup Inc., 366 F.3d 70, 80 (2d Cir. 2004); Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 192 (3d Cir. 2001).
Size matters. There aren’t that many defendants out there big enough to risk the burden of a half-billion “public nuisance” verdict under a statute so vague as to raise constitutional questions (among many other issues), or to take on another “Philly Special” – billions in purported punitives over an alleged drug adverse effect that isn’t even a physically disabling condition. See Byrd v. Janssen Pharmaceuticals, Inc., 333 F. Supp.3d 111, 124 (N.D.N.Y. 2018) (“it is undisputed that gynecomastia was not a ‘serious’ hazard pursuant to [FDA] regulations”).
Thus, as long as mass torts continue piling up in jurisdictions that plaintiffs like, size will continue to matter, and in some cases may even be a prerequisite to obtaining justice.