Courts across the U.S. have been closing and postponing arguments in order to help slow the spread of the novel coronavirus. Among those closing due to the pandemic is the Missouri Supreme Court which cancelled all April arguments, according to Law360. 

On the same day as the cancellation, however, the clerk for the Missouri appellate court overseeing a class action filed against Johnson and Johnson by women claiming to have developed ovarian cancer after using J&J baby powder issued an order allowing parties to request that arguments be rescheduled if they still wished to hold them. J&J filed a request rescheduling oral arguments for April 24 at 10 a.m.

The appellate court released an order clarifying that only two lawyers representing J&J and two lawyers for the plaintiffs would be allowed in the courtroom. Arguments will live-streamed and posted to Facebook and Youtube.

According to Law360, this trial was the first that included allegations that J&J baby powder contains asbestos and causes ovarian cancer. Previously, cases have been filed alleging the powder itself causes cancer or that the powder contains asbestos, but not both.

The J&J Baby Powder Class Action Lawsuit is Ingham v. Johnson & Johnson et al., Case No. ED107476, in the Missouri Court of Appeals for the Eastern District.

Successful J&J Baby Powder Class Action Suit

There are 65 different plaintiffs in the case against J&J. These plaintiffs allege that they “ bought and used Defendants’ [J&J] products in St. Louis City and later developed ovarian cancer”. They also claim that J&J failed to warn them of the dangers represented by their product, committed negligence, breached an implied warranty, carried out a civil conspiracy, and used negligent representation. Plaintiffs claim J&J knowingly marketed and sold a product that increases consumers’ risk of ovarian cancer.

Following a six-week trial in the St. Louis Circuit Court in July 2018, plaintiffs were awarded a record-setting settlement of $4.69 billion for damages caused by J&J baby powder. Each woman suing on her own was awarded roughly $25 million while women suing with their husbands were awarded roughly half that. The jury awarded punitive damages against J&J in the amount of $3.15 billion and against J&J Consumer in the amount of $990 million, according to Law360.

J&J Baby Powder Class Action Appeals

Plaintiffs successfully won their case against J&J in 2018, but the company has since filed several appeals. J&J argues that juries are susceptible to “heartrending stories” given by the plaintiffs and that those emotional stories overrode scientific evidence. They argue that sufficient evidence connecting their product to the development of cancer has not been provided.

“That 22 women who used the powders also developed cancer does not mean that the powders caused their cancer — any more than 22 people catching the flu after watching the Super Bowl means that the Super Bowl caused their flu,” J&J argued in their appeal brief.

J&J has also claimed that there are too many plaintiffs in this suit and that the decision to award each plaintiff identical damages is proof that the trial was unfair. The company argues that each plaintiffs’ circumstances are unique, so their damages shouldn’t be the same.

Based on court documents, J&J has also tried to argue that non-residents of Missouri should not be allowed into the suit as plaintiffs, but Judge Rex Burlison has denied J&J’s “motion to sever plaintiffs’ claims and transfer them to courts with proper venue”.