We’ve griped about multi-plaintiff consolidated trials for years on this blog, both generally, and in the specific context of prescription medical product liability litigation. Now the issue is before the Supreme Court in one of the most grotesque miscarriages of justice that we’ve seen – and several of us practice in Philadelphia – a three-ringed circus of Due Process violations featuring personal jurisdiction and punitive damages in addition to consolidation. The certiorari petition has been filed in Johnson & Johnson v. Ingham, No. 20-1223 (U.S., pending). Even though it’s a talc case, rather than involving prescription medical products, we blogged about it once before, in connection with the Missouri appellate court’s misapplication of Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) (“BMS”), that was so egregiously wrong that a federal court refused to follow it on identical facts. Ironically, though, the personal jurisdiction issue is the one aspect of this tort show trial that has largely fallen by the wayside on the way to the Supreme Court, perhaps because tort reform in Missouri has largely eliminated (unfortunately only prospectively) the plaintiffs’ procedural trick that caused jurisdictional farce in Ingram.
But that still leaves us with the aftermath of a 30-plaintiff (22 plaintiffs claiming ovarian cancer plus 8 spouses) consolidated trial, 17 of these families having nothing to do with Missouri and who came from twelve different states. Obviously, no judge who would consolidate that many plaintiffs is about to let the defendant escape liability, hence a whopping verdict that awarded identical $25 million “compensatory” damage awards to all comers, and topped that off with a $4.14 billion punitive damages award. The defendants’ cert. petition describes what happened:
It took the trial court more than five hours to instruct the jury on 12 different States’ laws. Yet the jury deliberated less than 20 minutes on average for each plaintiff family, rendering identical $25 million compensatory awards for each – irrespective of whether the plaintiff was alive or dead, how long she had suffered from cancer, which talc product she used, and whether the plaintiff brought suit individually or with her spouse. In total, the jury awarded $550 million in compensatory damages. The jury then awarded $3.15 billion in punitive damages against J&J and $990 million in punitive damages against JJCI − over $4 billion altogether.
Petition at 8-9 (emphasis original). The verdicts thus totaled over $4.5 billion, with the jury deliberating at a rate of a around billion dollars an hour.
After BMS, two plaintiffs who were unwilling to say (post-trial) that they had purportedly used an obscure, partially Missouri made talc product that existed for a short period of time were dismissed altogether. All seventeen non-resident families were dismissed as against one of the defendants (which didn’t manufacture products), which resulted in being reduced to a still eye-popping $2.2 billion. Petition at 9. We bet the defendants could make a lot of COVID vaccine with that. The ratio of the $500 million compensatory award (which the court double-counted) to the punitive damages award was 11.5:1 for one defendant and 2.1:1 for the other. Petition at 10.
The Supreme Court has never before considered Due Process limitations on multi-plaintiff consolidated trials. However, with the bright red flag of identical compensatory awards to widely disparate plaintiffs flying high, according to the Petition “two courts − the Second and Fifth Circuits − would have vacated this consolidation” altogether. Petition at 11-14. Further another eight state supreme or federal circuit courts reject the Missouri court’s view of jury instructions as a talismanic cure-all that immunizes a verdict against any and all consolidation problems. Petition at 14-17.
Given the facts, the law, and the size of the verdict, if the United States Supreme Court is ever going to examine the constitutionality of multi-plaintiff consolidations, this would seem like the case to do so.
Then there’s the punitive damages award itself. It’s been a while – longer than we’ve been blogging − since the Supreme Court has taken a Due Process punitive damages case: Philip Morris USA v. Williams, 549 U.S. 346, 353 (2007). It’s been almost as long since it took a ratio case, that being Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008). Exxon construed maritime law, not Due Process, and it imposed a maximum 1:1 ratio for punitive damages where the award of compensatory damages is “substantial.” Id. at 512-14. Ever since, the bench and bar has been wondering whether the same analysis should apply to punitive damages under the Due Process Clause. Given the “substantial” compensatory award in Ingham, and the funny business below that double-counted that award to lower the ratio, it seems to us that this appeal would be an excellent opportunity for the Supreme Court to answer that question as well. See Petition, at 28-32 (explaining all this more eloquently, and in more detail, than we can).
However, it is notoriously hard for even the most egregious of cases – which this is – to get Supreme Court review (unless you’re the President of the United States). The petition has the support of several amici curiae, the International Association of Defense Counsel, the Federation of Defense & Corporate Counsel, the Product Liability Advisory Council, Inc., the Atlantic Legal Foundation, the Washington Legal Foundation, the Defense Research Institute (written by Reed Smith), the Chamber of Commerce of the United States, and the Missouri Organization of Defense Lawyers. We’ve got our fingers crossed and will stay tuned.