On 17 October, Missouri appeals court decided to overturn a USD72 million award to a woman who claimed talcum powder made by leading pharma company, Johnson & Johnson (J&J) contributed to her ovarian cancer, citing that Missouri was not the proper jurisdiction for the decision.

This comes after J&J’s appeal to overturn a ruling made in February 2016, where juries in St Louis, Missouri concluded that talcum powder, then marketed as Johnson & Johnson Baby Powder, was associated with the development of ovarian cancer.

The Missouri Eastern District Court then ordered the pharmaceutical giant to pay USD10 million in compensatory damages and USD62million in punitive damages to the family of Jacqueline Fox, who suffered from ovarian cancer and died four months before the court proceeding.

Jacqueline Fox (left) with her son, Marvin Salter (right) in June 2014. Photo credit: St Louis Post-Dispatch
Jacqueline Fox (left) with her son, Marvin Salter (right) in June 2014. Photo credit: St Louis Post-Dispatch

The verdict sent shockwaves throughout the world. The case was one of a series of lawsuits that targeted J&J for gross negligence, conspiracy and failure to warn women of the potential risk of using talcum powder in the genital area. In response to the verdict, J&J strongly contested the decision and had since appealed to overturn the ruling.

Framing the appeal with a legal twist

It is hardly surprising that individual plaintiffs eventually lose out to large corporations in these legal battles. However, there was no scientific basis for the reason behind the reversal of court decision.

Instead, the Missouri appeal courts judged that there must be a connection between the plaintiff and the state where the lawsuit was filed. In Fox's lawsuit, only two out of the total 64 people actually lived in Missouri.

The decision was based off an earlier Supreme Court ruling in favour of Bristol-Myers-Squibb in a mass tort against the company over the blockbuster drug Plavix back in August this year. The Supreme Court’s decision was hailed as a "game changer" to these lawsuits and would affect future court rulings on similar cases, including Fox's.

A spokeswoman from J&J said in a statement after the verdict was announced, that they are “… pleased with the opinion of the Missouri Court of Appeals, Eastern District, and continue to move forward with the appeals process.”

“In the cases involving non-resident plaintiffs who sued in the state of Missouri, we consistently argued that there was no jurisdiction and we expect the existing verdicts that we are appealing to be reversed,” she continued.

Indeed, on 24 October, J&J went on to win its second consecutive legal victory within the week. Judge Maren Nelson in the Superior Court of Los Angeles reversed a record USD417 million jury verdict against the health giant over the same alleged links between ovarian cancer and its talc based products.

Mass Tort against pharmaceutical companies

A quick review of existing literature revealed that there has been a constant tug-of-war between the pharmaceutical industry and the lawsuit industry. On one hand, there were reports which cited that lawyers are becoming aggressive in bringing in multiple plaintiffs, sometimes across several states, against pharmaceutical companies over allegedly defective products. By doing so, they hope to consolidate the actions into one jurisdiction, therefore increasing the chances of winning against these giant corporations.

Nonetheless, it is challenging to discern whether the pharmaceutical companies should really be held accountable towards the injuries suffered by the patients, or the lawsuit industry is simply exploiting the laws and court procedures in certain states for their own gains.

Reports from the American Tort Reform Foundation – which are rather crudely, yet appropriately named "Judicial Hellholes" – attempted to shed light on this issue by identifying “plaintiff’s havens” where pharmaceutical companies were often held at disadvantages when it came to tort cases.

However, as the legality and ethics of J&J's appeals against the previous ruling are being pondered over, ultimately the importance of establishing sufficient scientific evidence to support or refute the causal relationship between talcum powder and ovarian cancer should be of utmost priority. MIMS

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