J&J - Talc - Ingham Petition For A Writ of Certiorari

No.
20-
IN THE
Supreme Court of the United States
_________
JOHNSON & JOHNSON and

JOHNSON & JOHNSON CONSUMER INC.,
Petitioners,
v.
GAIL L. INGHAM, et al.,
Respondents.
_________
On Petition for a Writ of Certiorari to the
Missouri Court of Appeals for the
Eastern District
_________
PETITION FOR A WRIT OF CERTIORARI
_________
E. JOSHUA ROSENKRANZ NEAL KUMAR KATYAL
PETER A. BICKS Counsel of Record
LISA T. SIMPSON SEAN MAROTTA
NAOMI J. SCOTTEN KATHERINE B. WELLINGTON
EDMUND HIRSCHFELD BENJAMIN A. FIELD
ORRICK, HERRINGTON & HOGAN LOVELLS US LLP
SUTCLIFFE LLP 555 Thirteenth Street, N.W.
51 West 52nd Street Washington, D.C. 20004
New York, NY 10019 (202) 637-5600
neal.katyal@hoganlovells.com
Counsel for Petitioners
(Additional counsel listed on inside cover)

Additional counsel:
ROBERT M. LOEB KRISTINA ALEKSEYEVA

ROBBIE MANHAS HOGAN LOVELLS US LLP
ORRICK, HERRINGTON & 390 Madison Avenue
SUTCLIFFE LLP New York, NY 10017
1152 15th Street, N.W.
Washington, D.C. 20005
QUESTIONS PRESENTED
1. Whether a court must assess if consolidating mul-
tiple plaintiffs for a single trial violates due process,
or whether it can presume that jury instructions al-
ways cure both jury confusion and prejudice to the de-
fendant.
2. Whether a punitive-damages award violates due
process when it far exceeds a substantial compensa-
tory-damages award, and whether the ratio of puni-
tive to compensatory damages for jointly and sever-
ally liable defendants is calculated by assuming that
each defendant will pay the entire compensatory
award.
3. Whether the “arise out of or relate to” requirement
for specific personal jurisdiction can be met by merely
showing a “link” in the chain of causation, as the court
below held, or whether a heightened showing of relat-
edness is required, as petitioner in Ford Motor Co. v.
Montana Eighth Judicial District Court, No. 19-368,
has argued.
(i)
ii
PARTIES TO THE PROCEEDING
Johnson & Johnson and Johnson & Johnson Con-
sumer Inc., petitioners on review, were defendants-
appellants below.
Gail L. Ingham, Robert Ingham, Laine Goldman,
Carole Williams, Monica Sweat, Gregory Sweat, Rob-
ert Packard, Andrea Schwartz-Thomas, Janus Ox-
ford, William Oxford, Stephanie Martin, Ken Martin,
Shelia Brooks, Martin Maillard, Krystal Kim, Annette
Koman, Allan Koman, Toni Roberts, Marcia Owens,
Mitzai Zschiesche, Tracee Baxter, Cecilia Martinez,
Olga Salazar, Karen Hawk, Mark Hawk, Pamela
Scarpino, Jackie Herbert North, Marvin Walker, and
Talmadge Williams, respondents on review, were
plaintiffs-appellees below.
iii
RULE 29.6 DISCLOSURE STATEMENT
1. Johnson & Johnson has no parent corporation,
and no publicly held company owns 10% or more of
Johnson & Johnson’s stock.
2. Johnson & Johnson Consumer Inc. is wholly
owned by Janssen Pharmaceuticals, Inc. Janssen
Pharmaceuticals, Inc. is wholly owned by DePuy Syn-
thes, Inc. DePuy Synthes, Inc. is wholly owned by
Johnson & Johnson International. Johnson & John-
son International is wholly owned by Johnson & John-
son, which is a publicly held company.
iv
RELATED PROCEEDINGS
Missouri Court of Appeals for the Eastern District:
Ingham v. Johnson & Johnson, No. ED 107476
(Mo. Ct. App. June 23, 2020) (reported at 608
S.W.3d 663), reh’g and/or transfer to Missouri
Supreme Court denied (July 28, 2020), applica-
tion for transfer to Missouri Supreme Court de-
nied (Nov. 3, 2020).
Circuit Court of the City of St. Louis:
Ingham v. Johnson & Johnson, No. 1522-
CC10417 (Mo. Cir. Ct., 22d Judicial Cir.)
Ingham v. Johnson & Johnson, No. 1522-
CC10417-01 (Mo. Cir. Ct., 22d Judicial Cir.)
v
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................i
PARTIES TO THE PROCEEDING ........................... ii
RULE 29.6 DISCLOSURE STATEMENT ............... iii
RELATED PROCEEDINGS ...................................... iv
TABLE OF AUTHORITIES ....................................... ix
OPINIONS BELOW .................................................... 1
JURISDICTION .......................................................... 1
CONSTITUTIONAL PROVISION
INVOLVED ............................................................ 2
INTRODUCTION ........................................................ 2
STATEMENT .............................................................. 5
A. Talc Research ............................................ 5
B. Trial Court Proceedings ........................... 6
C. Appellate Proceedings .............................. 9
REASONS FOR GRANTING THE
PETITION ............................................................ 10
I. THE DECISION BELOW IS
IRRECONCILEABLE WITH HOW
NUMEROUS STATE AND
FEDERAL COURTS ANALYZE
DUE-PROCESS RISKS FROM MASS
TRIALS ........................................................... 10
A. The Decision Below Is At Odds
With Other Courts’
Consolidation Standards ........................ 11
B. The Missouri-Alabama Rule
Denies Due Process ................................ 17
vi
TABLE OF CONTENTS—Continued
Page
II. THIS CASE EXACERBATES TWO
CLEAR SPLITS OVER PUNITIVE
DAMAGES ...................................................... 21
A. The State And Federal Courts
Are Divided Over The Due-
Process Limits On Punitive
Damages.................................................. 22
B. The State And Federal Courts
Are Divided Over How To
Calculate The Ratio Of Punitive
To Compensatory Damages.................... 26
C. The Decision Below Is Divorced
From This Court’s Precedent
And Long-Standing Due-Process
Principles ................................................ 28
III. MISSOURI’S EXPANSIVE
PERSONAL-JURISDICTION
THEORY RAISES THE SAME
QUESTION PRESENTED IN FORD ............ 32
IV. THIS PETITION IS AN IDEAL
VEHICLE TO CONSIDER THESE
IMPORTANT, INTERLOCKING
DUE-PROCESS QUESTIONS ....................... 34
CONCLUSION .......................................................... 36
APPENDIX
APPENDIX A—Missouri Court of Appeals’
Opinion (June 23, 2020) .................................... 1a
vii
Page
APPENDIX B—Missouri Circuit Court’s
Order re Motion for Judgment
Notwithstanding the Verdict, Motion
for New Trials, and Motion for New
Trials on Damages or Request for
Remittitur (Dec. 19, 2018) ............................ 107a
APPENDIX C—Missouri Circuit Court’s
Order re Joint Motion to Sever
Plaintiffs’ Claims for Improper Joinder
(May 15, 2018) ............................................... 120a
APPENDIX D—Missouri Circuit Court’s
Order re Motions to Dismiss and
Motions to Sever and Transfer Venue
(May 15, 2018) ............................................... 122a
APPENDIX E—Missouri Circuit Court’s
Order re Motions to Transfer Venue, to
Dismiss, and to Sever (May 17, 2016) .......... 133a
APPENDIX F—Supreme Court of
Missouri’s Order Denying Application
to Transfer (Nov. 3, 2020) ............................. 146a
APPENDIX G—Missouri Court of
Appeals’ Order Denying Application for
Transfer (July 28, 2020) ................................ 148a
APPENDIX H—Missouri Circuit Court
Trial Transcript, Volume 5 (June 6,
2018) (excerpt) ............................................... 150a
APPENDIX I—Missouri Circuit Court
Trial Transcript, Volume 11 (June 14,
2018) (excerpt) ............................................... 154a
viii
Page
APPENDIX J—Missouri Circuit Court
Trial Transcript, Volume 18A (June
26, 2018) (excerpts) ....................................... 161a
APPENDIX K—Missouri Circuit Court
Trial Transcript, Volume 24A (July 5,
2018) (excerpt) ............................................... 166a
APPENDIX L—Affidavit of Steven D.
Penrod (Apr. 18, 2018) (excerpts) ................. 170a
ix
TABLE OF AUTHORITIES
Page
CASES:
ACandS, Inc. v. Godwin,
667 A.2d 116 (Md. 1995) ...................................... 17
Amchem Prod., Inc. v. Windsor,
521 U.S. 591 (1997) .............................................. 20
Arnold v. E. Air Lines, Inc.,
681 F.2d 186 (4th Cir. 1982) ................................ 16
Arnold v. E. Air Lines, Inc.,
712 F.2d 899 (4th Cir. 1983) (en banc) ................ 16
Bach v. First Union Nat’l Bank,
486 F.3d 150 (6th Cir. 2007) ................................ 22
Beydoun v. Wataniya Rests. Holding,
Q.S.C.,
768 F.3d 499 (6th Cir. 2004) .......................... 32, 33
BMW of N. Am., Inc. v. Gore,
517 U.S. 559 (1996) ........................................ 28, 31
Boerner v. Brown & Williamson Tobacco
Co.,
394 F.3d 594 (8th Cir. 2005) ................................ 23
Bristol-Myers Squibb Co. v. Superior
Court,
137 S. Ct. 1773 (2017) ...................................... 7, 34
Broussard v. Meineke Disc. Muffler Shops,
Inc.,
155 F.3d 331 (4th Cir. 1998) ................................ 18
Bruton v. United States,
391 U.S. 123 (1968) .............................................. 20
Cantrell v. GAF Corp.,
999 F.2d 1007 (6th Cir. 1993) .............................. 16
x
TABLE OF AUTHORITIES—Continued
Page
Caperton v. A.T. Massey Coal Co.,
556 U.S. 868 (2009) .............................................. 17
Comcast Corp. v. Behrend,
569 U.S. 27 (2013) .................................................. 3
Cote v. Philip Morris USA, Inc.,
985 F.3d 840 (11th Cir. 2021) .............................. 24
Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund,
137 S. Ct. 2325 (2017) .......................................... 35
Dieser v. St. Anthony’s Med. Ctr.,
498 S.W.3d 419 (Mo. 2016) .................................. 12
Dupont v. S. Pac. Co.,
366 F.2d 193 (5th Cir. 1966) ................................ 14
Exxon Shipping Co. v. Baker,
554 U.S. 471 (2008) .............................. 3, 21, 29, 30
Fidelity Fed. Bank & Tr. v. Kehoe,
547 U.S. 1051 (2006) ............................................ 35
Ford Motor Co. v. Montana Eighth Judi-
cial Dist. Ct.,
140 S. Ct. 917 (2020) .................................... 4, 5, 33
Grabinski v. Blue Springs Ford Sales,
Inc.,
203 F.3d 1024 (8th Cir. 2000) .............................. 27
Gwathmey v. United States,
215 F.2d 148 (5th Cir. 1954) .......................... 13, 14
Hall v. Hall,
138 S. Ct. 1118 (2018) .......................................... 18
Harlow v. Children’s Hosp.,
432 F.3d 50 (1st Cir. 2005) .................................. 32
xi
Page
Honeycutt v. United States,
137 S. Ct. 1626 (2017) .......................................... 26
Horizon Health Corp. v. Acadia
Healthcare Co.,
520 S.W.3d 848 (Tex. 2017) ................................. 27
In re Ethyl Corp.,
975 S.W.2d 606 (Tex. 1998) ................................. 15
In re Fibreboard Corp.,
893 F.2d 706 (5th Cir. 1990) ................................ 14
In re Repetitive Stress Injury Litig.,
11 F.3d 368 (2d Cir. 1993) ................................... 13
In re Van Waters & Rogers, Inc.,
145 S.W.3d 203 (Tex. 2004) ................................. 15
Janssen Pharmaceutica, Inc. v. Armond,
866 So. 2d 1092 (Miss. 2004) ............................... 16
Johnson v. Celotex Corp.,
899 F.2d 1281 (2d Cir. 1990) ............................... 12
Johnson v. Des Moines Metro. Wastewater
Reclamation Auth.,
814 N.W.2d 240 (Iowa 2012).......................... 15, 16
Jurinko v. Med. Protective Co.,
305 F. App’x 13 (3d Cir. 2008) ....................... 22, 23
KGK Jewelry LLC v. ESDNetwork,
2014 WL 7333291 (S.D.N.Y. Dec. 24,
2014) ..................................................................... 13
Lassiter v. Dep’t of Soc. Servs. of Durham
Cty.,
452 U.S. 18 (1981) ................................................ 14
xii
Page
Lee ex rel. Lee v. Borders,
764 F.3d 966 (8th Cir. 2014) ................................ 23
Lewellen v. Franklin,
441 S.W.3d 136 (Mo. 2014) ............................ 26, 27
Lompe v. Sunridge Partners, LLC,
818 F.3d 1041 (10th Cir. 2016) ............................ 22
Malcolm v. Nat’l Gypsum Co.,
995 F.2d 346 (2d Cir. 1993) ........................... 13, 18
Manor Care, Inc. v. Douglas,
763 S.E.2d 73 (W. Va. 2014) ................................ 24
Minnesota Pers. Injury Asbestos Cases v.
Keene Corp.,
481 N.W.2d 24 (Minn. 1992) ................................ 17
Mobil Oil Expl. & Producing Se., Inc. v.
United Distrib. Cos.,
498 U.S. 211 (1991) .............................................. 34
Morgan v. New York Life Ins. Co.,
559 F.3d 425 (6th Cir. 2009) ................................ 22
Murr v. Wisconsin,
136 S. Ct. 890 (2017) ............................................ 35
Olson v. Brenntag N. Am., Inc.,
132 N.Y.S.3d 741 (N.Y. Sup. Ct. 2020)
(Table)................................................................... 27
Ondrisek v. Hoffman,
698 F.3d 1020 (8th Cir. 2012) .............................. 23
Ortiz v. Fibreboard Corp.,
527 U.S. 815 (1999) .............................................. 20
Owens-Corning Fiberglass Corp. v. Gant,
662 So. 2d 255 (Ala. 1995) ................................... 17
xiii
Page
Pac. Mut. Life Ins. Co. v. Haslip,
499 U.S. 1 (1991) .................................................. 30
Philip Morris USA v. Williams,
549 U.S. 346 (2007) .............................................. 31
Planned Parenthood of Colum-
bia/Willamette Inc. v. Am. Coal. of Life
Activists,
422 F.3d 949 (9th Cir. 2005) ................................ 24
Ramirez v. TransUnion LLC,
951 F.3d 1008 (9th Cir. 2020) .............................. 24
Roginsky v. Richardson-Merrell, Inc.,
378 F.2d 832 (2d Cir. 1967) ................................. 30
Roth v. Farner-Bocken Co.,
667 N.W.2d 651 (S.D. 2003)................................. 23
Seltzer v. Morton,
154 P.3d 561 (Mont. 2007) ................................... 24
State ex rel. Appalachian Power Co. v.
Ranson,
438 S.E.2d 609 (W. Va. 1993) .............................. 15
State Farm Mut. Auto. Ins. Co. v. Camp-
bell,
538 U.S. 408 (2003) ...................................... passim
Stonebridge Life Ins. Co. v. Pitts,
236 S.W.3d 201 (Tex. 2007) ................................. 17
Sw. Refin. Co. v. Bernal,
22 S.W.3d 425 (Tex. 2000) ................................... 18
Trevizo v. Cloonan,
2000 WL 33348794 (W.D. Tex. Nov. 29,
2000) ..................................................................... 14
xiv
Page
Union Pac. R.R. Co. v. Barber,
149 S.W.3d 325 (Ark. 2004) ................................. 24
Vicksburg Chem. Co. v. Thornell,
355 So. 2d 299 (Miss. 1978) ................................. 16
Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338 (2011) .......................................... 3, 20
Watts v. S. Bound R.R. Co.,
38 S.E. 240 (S.C. 1901) ........................................ 31
Weiss v. Nat’l Westminster Bank PLC,
2017 WL 10058916 (E.D.N.Y. Mar. 31,
2017) ..................................................................... 13
Williams v. ConAgra Poultry Co.,
378 F.3d 790 (8th Cir. 2004) ................................ 23
Williams v. Philip Morris Inc.,
127 P.3d 1165 (Or. 2006), adhered to on
reconsideration, 176 P.3d 1255 (2008) ................ 25
CONSTITUTIONAL PROVISION:
U.S. Const. amend. XIV, § 1 ..................................... 2
STATUTE:
28 U.S.C. § 1257(a) ................................................... 2
OTHER AUTHORITIES:
Thomas B. Colby, Beyond the Multiple
Punishment Problem: Punitive Damages
As Punishment for Individual, Private
Wrongs, 87 Minn. L. Rev. 583 (2003) .................. 31
Margaret Cronin Fisk, Why Johnson &
Johnson May Not Have to Pay Its $4.7
Billion Court Verdict, Bloomberg (Jan.
9, 2019), https://bloom.bg/3iQmPEl ..................... 34
xv
Page
Laura J. Hines & N. William Hines, Con-
stitutional Constraints on Punitive
Damages: Clarity, Consistency, and the
Outlier Dilemma, 66 Hastings L.J. 1257
(2015) ............................................................. 28, 29
Jill Wieber Lens, Procedural Due Process
and Predictable Punitive Damage
Awards, 2012 B.Y.U. L. Rev. 1 (2012) ................. 29
Carter G. Phillips et al., Rescuing Multi-
district Litigation from the Altar of Ex-
pediency, 1997 B.Y.U. L. Rev. 821 (1997) ........... 20
Mark H. Reeves, Makes Sense to Me: How
Moderate, Targeted Federal Tort Reform
Legislation Could Solve the Nation’s As-
bestos Litigation Crisis, 56 Vand. L.
Rev. 1949 (2003) ................................................... 19
Stephen M. Shapiro et al., Supreme Court
Practice § 4.13 (10th ed. 2013)............................. 34
Catherine M. Sharkey, Punitive Damages
As Societal Damages, 113 Yale L.J. 347
(2003) .................................................................... 30
Top 100 Verdicts of 2018, Nat’l L.J., June
2019, available at https://bit.ly/2YfEThA ........... 34
U.S. Gov’t Accountability Off., GAO-11-
819, Asbestos Injury Compensation: The
Role and Administration of Asbestos
Trusts (2011) .................................................. 31, 32
IN THE
Supreme Court of the United States
_________
No. 20-
_________
JOHNSON & JOHNSON and
JOHNSON & JOHNSON CONSUMER INC.,
Petitioners,
v.
GAIL L. INGHAM, et al.,
Respondents.
_________
On Petition for a Writ of Certiorari to the
Missouri Court of Appeals for the
Eastern District
_________
PETITION FOR A WRIT OF CERTIORARI
_________
Johnson & Johnson and Johnson & Johnson Con-
sumer Inc. respectfully petition for a writ of certiorari
to review the judgment of the Missouri Court of Ap-
peals for the Eastern District in this case.
OPINIONS BELOW
The Missouri Court of Appeals’ opinion is reported
at 608 S.W.3d 663. Pet. App. 1a-106a. The City of St.
Louis Circuit Court’s orders are unreported. Id. at
107a-145a. The Missouri Supreme Court’s order
denying further review is unreported. Id. at 146a-
147a.
JURISDICTION
The Missouri Court of Appeals entered judgment on
June 23, 2020. Pet. App. 1a-106a. On November 3,
(1)
2
2020, the Missouri Supreme Court denied Petitioners’
timely application to transfer. Id. at 146a-147a. On
March 19, 2020, this Court extended the deadline to
petition for a writ of certiorari to 150 days. This Court
has jurisdiction under 28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISION INVOLVED
The Due Process Clause of the Fourteenth Amend-
ment, U.S. Const. amend. XIV, § 1, provides:
[N]or shall any State deprive any person of life,
liberty, or property, without due process of law.
INTRODUCTION
This case arises from an over $2 billion judgment
against Petitioners Johnson & Johnson (J&J) and
Johnson & Johnson Consumer Inc. (JJCI). Petitioners
have sold their iconic baby powder to millions of Amer-
icans for decades. Over the last several years, how-
ever, plaintiffs’ lawyers have filed thousands of law-
suits in select jurisdictions alleging—against the vast
weight of scientific evidence—that Petitioners’ cos-
metic talc products are contaminated with asbestos
and cause ovarian cancer. Contrary to those claims,
federal regulators and respected health organizations
have rejected calls for warnings on talc, and compre-
hensive epidemiological studies tracking tens of thou-
sands of talc users have found no meaningful associa-
tion between cosmetic talc use and ovarian cancer.
Yet some plaintiffs’ lawyers have struck on a win-
ning formula: They first canvass the country for
women who were both diagnosed with ovarian cancer
and among the millions who used Petitioners’ talc
products. They then select a jurisdiction where out-
of-state plaintiffs can be consolidated with in-state
plaintiffs for a single mass trial. They put dozens of
3
plaintiffs on the stand to discuss their experiences
with cancer, and the jury awards billions of dollars in
punitive damages supposedly to punish Petitioners.
Lawyers can then follow this script and file the same
claims with new plaintiffs and seek new outsized
awards, over and over again.
This case illustrates the problem. The Missouri
court consolidated for trial 22 plaintiffs’ disparate
claims under 12 States’ laws before a single jury—not-
withstanding plaintiffs’ widely divergent circum-
stances and injuries, ranging from full remission to
lengthy illness and death. Evidencing the prejudicial
joinder, the jury found liability as to all 22 plaintiffs
and awarded $25 million in compensatory damages to
each of the 22 plaintiff families. On top of that, the
Missouri Court of Appeals upheld a $1.6 billion puni-
tive award, a figure that for J&J was more than eleven
times the already staggering compensatories. And the
court gave no heed to the fact that 17 plaintiffs
brought into this mass trial did not reside in Missouri,
did not purchase or use Petitioners’ products in Mis-
souri, did not rely on any Missouri advertising in mak-
ing their purchasing decisions, and were not injured
in Missouri. Those rulings infringe Petitioners’ fun-
damental due-process rights.
This Court has insisted that class-action defendants
are entitled to “individualized determinations” of in-
jury for each plaintiff. Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 366 (2011). And it has reined in class-
action damages abuses. See, e.g., Comcast Corp. v.
Behrend, 569 U.S. 27, 34-36 (2013); Exxon Shipping
Co. v. Baker, 554 U.S. 471, 514-515 & n.28 (2008). To-
day, confusion reigns in the lower courts over the due-
process boundaries of mass trials—and whether jury
4
instructions by themselves are a sufficient antidote to
the jury confusion and prejudice mass trials cause.
The Court should intervene here to curb due-process
abuses in mass-tort suits and ensure that state courts
give mass-tort defendants the same rights as everyone
else.
First, the Missouri appellate court did not even eval-
uate whether consolidating 22 plaintiffs’ disparate
claims violated Petitioners’ due-process rights; it in-
stead said that it “must” presume that jury instruc-
tions cured any problems. Pet. App. 14a-16a, 18a-19a.
Multiple state and federal courts disagree, holding
that courts must evaluate whether consolidation vio-
lates due process despite the jury instructions.
Second, the Missouri court held that the $1.6 billion
punitive award—which far exceeds a 1:1 ratio of puni-
tive to compensatory damages—did not violate Peti-
tioners’ due-process rights. See id. at 101a-103a. But
other state and federal courts would have reduced the
award by over a billion dollars. In fact, had the case
been in Missouri federal court, both the ratio and its
compatibility with due process would have been ana-
lyzed differently, reducing the punitive award by at
least hundreds of millions.
Third, the Missouri court found specific personal ju-
risdiction over JJCI because of its contract with a
third party to bottle one of its talc products in Mis-
souri, concluding that this activity was a “direct link
in the production chain of [the product]’s eventual sale
to the public.” Id. at 35a. But the “arise out of or re-
late to” prong of specific personal jurisdiction requires
more than a mere but-for “link” in the chain of causa-
tion—as many courts have held. See Petition for Writ
of Certiorari at 12-16, Ford Motor Co. v. Montana
5
Eighth Judicial Dist. Ct., No. 19-368 (U.S. Sept. 18,
2019), cert. granted, 140 S. Ct. 917 (2020).
Each issue warrants the Court’s attention. That
they are presented in a single petition challenging one
of the largest verdicts ever in a product-liability case
gives the Court an extraordinary opportunity to re-
solve the most common and troubling due-process
questions posed by mass-tort litigation, a gap left open
by this Court’s precedents. At a minimum, the Court
should consider granting, vacating, and remanding
this case in light of Ford.
STATEMENT
A. Talc Research
Hundreds of millions of Americans have used Peti-
tioners’ cosmetic talc products, including Johnson’s
Baby Powder. 1 Plaintiffs’ claim that cosmetic talc
products contain asbestos first received attention in
the 1970s, when Dr. Arthur Langer claimed to find as-
bestos in talc samples—a claim he later withdrew as
to Johnson’s Baby Powder.
Since then, scientists have studied for decades
whether there is any link between talc use and ovar-
ian cancer, and the three largest epidemiological stud-
ies—tracking the health of tens of thousands of
women—have found no meaningful relationship. See
C.A. Appellants’ Appx. A294, A298, A307; Tr. 4689:13-
4700:21.2 The Food and Drug Administration (FDA),
National Cancer Institute, and American Cancer
1
J&J sold cosmetic talc products until 1979, when it trans-
ferred those products to subsidiaries, which ultimately be-
came JJCI. See Pet. App. 3a, 103a.
2
“Tr.” citations are to the trial transcript.
6
Society have reached the same conclusion. See Pet.
App. 91a-92a. And the FDA has repeatedly found that
warning labels on cosmetic talc products are scientifi-
cally unwarranted. See id.
Petitioners have used leading independent laborato-
ries to ensure that their cosmetic talc products were
not contaminated with asbestos, and they deny that
their products contain asbestos or cause cancer. See
Tr. 4167:1-10, 5128:17-5144:1, 5157:6-5164:21,
5170:11-5228:10. Petitioners have also conducted
thousands of their own tests to ensure there was no
asbestos contamination in these products. See id. at
5135:23-5138:8. Plaintiffs’ lawyers have nevertheless
filed thousands of lawsuits across the country alleging
that Johnson’s Baby Powder causes ovarian cancer.
B. Trial Court Proceedings
This is one such case. Plaintiffs are 22 women who
filed suit against Petitioners in the St. Louis City,
Missouri Circuit Court alongside eight plaintiffs’
spouses. See Pet. App. 2a n.1, 3a. All 22 plaintiffs
initially alleged that they had used Johnson’s Baby
Powder and later developed ovarian cancer. See id. at
3a-4a. Plaintiffs and their spouses sought relief under
12 different States’ laws, asserting product-liability
and loss-of-consortium claims. See id. They also
sought punitive damages. Id. at 3a.
Johnson’s Baby Powder was always manufactured
outside Missouri, and only five plaintiffs even alleged
they purchased that product in Missouri. See id. at
3a-5a, 30a. Petitioners moved to dismiss for lack of
personal jurisdiction the claims of 17 plaintiffs who
did not reside in Missouri, did not purchase or use Pe-
titioners’ products in Missouri, did not rely on Mis-
souri advertising in making their purchasing
7
decisions, and were not injured in Missouri (the “non-
Missouri plaintiffs”). See id. at 4a. The trial court in-
itially denied the motion. Id. at 122a-132a.
After Bristol-Myers Squibb Co. v. Superior Court,
137 S. Ct. 1773 (2017), 15 of the 17 non-Missouri
plaintiffs asserted for the first time that they had used
Shower-to-Shower Shimmer Effects (Shimmer), a glit-
tery body powder JJCI sold in nominal amounts be-
tween 2005 and 2010. See Pet. App. 4a-6a & nn.5-6.
During part of that period, JJCI contracted with
Pharma Tech, a Missouri manufacturing-for-hire
company, to mix and package Shimmer and to affix a
label JJCI designed in New Jersey. See id. at 4a-6a,
33a.
The 15 non-Missouri plaintiffs offered little proof
that they had purchased Shimmer. One testified that
she had a dream of using Shimmer after her lawyer—
post-Bristol-Myers Squibb—asked about the product.
Id. at 157a-158a. The trial court nonetheless accepted
the non-Missouri plaintiffs’ assertions and found per-
sonal jurisdiction over JJCI and J&J, including with
respect to the plaintiffs who did not use Shimmer. Id.
at 6a-7a, 128a-130a.
All 22 plaintiffs asked to have their claims heard to-
gether before the same jury. Petitioners objected, ex-
plaining that plaintiffs had used different talc prod-
ucts at different levels of intensity for different peri-
ods of time in different States. See id. at 7a, 11a-12a.
Plaintiffs also had dramatically different risk factors
for and experiences with cancer. See id. Some plain-
tiffs had a genetic or family predisposition for cancer,
while others did not. See id. And some plaintiffs ex-
perienced remission after treatment, whereas others
died after a years-long battle. See id. at 11a-12a.
8
Petitioners explained that consolidation would con-
fuse the jury and prejudice their defense by “blurr[ing]
distinctions in the law and defenses applicable to each
[p]laintiff’s claim,” violating their due-process rights.
Id. at 17a-18a; see Appellants’ C.A. Br. 82-83. The
trial court denied the severance motions. Pet. App.
7a, 142a-144a.
At trial, there was little (if any) evidence that plain-
tiffs ever used products from Petitioners that con-
tained asbestos. Even though ovarian cancer has nu-
merous established risk factors, see Tr. 4720:14-
4723:9, plaintiffs’ expert opined that each of the 22
plaintiffs’ talc use “directly contributed” to her ovar-
ian cancer—using the same language for each. Pet.
App. 74a-75a. The expert provided as little as a few
words of analysis for each plaintiff. See id. at 163a-
164a (15 words for Ms. Webb); id. at 164a-165a (21
words for Ms. Hillman). And plaintiffs’ counsel urged
the jury to infer causation from the two things that
“all of these women have * * * in common”: “[a]ll of
them used * * * Johnson & Johnson Baby Powder” and
all of them “got cancer.” Id. at 152a.
It took the trial court more than five hours to in-
struct the jury on 12 different States’ laws. See id. at
14a; see also Tr. 5872:11-15 (court informing the jury
that it would “plow through” hundreds of pages of jury
instructions because there were no “other alterna-
tives”). Yet the jury deliberated less than 20 minutes
on average for each plaintiff family, rendering identi-
cal $25 million compensatory awards for each—irre-
spective 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. See Pet. App. 8a.
9
In total, the jury awarded $550 million in compensa-
tory damages. See id.
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. Id.
One juror later explained that the award was in-
tended to disgorge Petitioners’ nationwide profits
from talc sales over the last four decades. See C.A.
Appellants’ Appx. A317-318.
C. Appellate Proceedings
The Missouri Court of Appeals largely affirmed.
Pet. App. 105a-106a. The court rejected Petitioners’
argument that consolidation violated their due-pro-
cess rights. It acknowledged the “obvious differences
among Plaintiffs’ claims,” but held that “[a]ny dangers
of prejudice arising from joinder were adequately ad-
dressed by the trial court’s instructions to the jury to
consider each Plaintiff’s claim separately.” Id. at 18a-
19a.
The court agreed with Petitioners that the trial
court lacked jurisdiction over J&J with respect to the
non-Missouri plaintiffs. See id. at 48a-49a. And it
found no jurisdiction at all over the two non-Missouri
plaintiffs who did not allege using Shimmer. See id.
at 40a, 48a-49a. But the court found personal juris-
diction over the claims of the 15 non-Missouri plain-
tiffs who alleged using Shimmer because “JJCI con-
tracted with Missouri-based Pharma Tech Industries
to manufacture, package, and label Shimmer,” and
“JJCI’s activities with Pharma Tech” “represent a di-
rect link in the production chain of Shimmer’s even-
tual sale to the public.” Id. at 32a-33a, 35a.
The court reduced the damages award based on its
personal-jurisdiction rulings, entering judgment
10
against JJCI for $375 million in compensatory dam-
ages, and against J&J and JJCI jointly and severally
for $125 million more in compensatory damages. Id.
at 100a. The court also purported to reduce the puni-
tive damages proportionally, retaining the same puni-
tive-to-compensatory ratios awarded by the jury. See
id. The court accordingly affirmed a $900 million pu-
nitive-damages award against JJCI and a $715.9 mil-
lion punitive-damages award against J&J. Id. at
100a-101a.
The court believed that these awards were “within
the limits of punitive damages consistently upheld.”
Id. at 101a-103a. But the court incorrectly assumed
that J&J and JJCI would each pay the entire joint-
and-several portion of the compensatory award, and
therefore calculated ratios of 5.7:1 for J&J and 1.8:1
for JJCI. See id. at 99a-100a & n.27. Had the court
instead assumed that Petitioners would each pay half
the joint-and-several award, it would have calculated
the ratios as 11.5:1 for J&J and 2.1:1 for JJCI.
All told, the court entered judgment against Peti-
tioners for over $2.1 billion. But the Missouri Su-
preme Court denied review. Id. at 146a-149a.
REASONS FOR GRANTING THE PETITION
I. THE DECISION BELOW IS
IRRECONCILEABLE WITH HOW
NUMEROUS STATE AND FEDERAL
COURTS ANALYZE DUE-PROCESS RISKS
FROM MASS TRIALS.
If the Due Process Clause means anything, it means
that a defendant cannot be deprived of billions of dol-
lars without a fair trial. The mass trial of 22 plaintiffs’
claims here obscured plaintiffs’ individual
11
circumstances—and Petitioners’ individual de-
fenses—through the sheer breadth of testimony and
instructions thrown at the jury. Consolidation obvi-
ously had that effect because the jury returned 22
identical verdicts for 22 dissimilar plaintiff families
and because each plaintiff received awards that far
outstripped the compensatory verdicts against Peti-
tioners in single-plaintiff Missouri cases.
At least two courts—the Second and Fifth Circuits—
would have vacated this consolidation on due-process
grounds. And eight other courts would have rejected
the Missouri court’s reliance on jury instructions as a
panacea for prejudice from mass consolidation, citing
due-process concerns of fairness, prejudice, and jury
confusion. Only the outlier Alabama Supreme Court
embraces the Missouri position, abandoning all con-
stitutional limits and common sense.
A. The Decision Below Is At Odds With Other
Courts’ Consolidation Standards.
1. Petitioners below explained that a mass trial of
22 plaintiffs’ disparate claims under 12 States’ laws
violated their due-process rights. Pointing to the
identical astronomical compensatory awards, Peti-
tioners argued that the five hours of jury instruc-
tions—instructions so voluminous that the trial court
at one point admitted that it was “frankly concerned
about losing the jury,” Pet. App. 169a—confused ra-
ther than clarified the law. Id. at 8a-9a. Petitioners
explained that the welter of claims and witnesses oc-
casioned by the mass trial deprived them of a fair de-
termination of the individual allegations against
them. See id. And they directed the court to numer-
ous “scientific studies of jury decisionmaking” show-
ing that in a multi-plaintiff trial of this size, “there is
12
a substantially greater likelihood that the jury will
find defendants liable and will award greater dam-
ages to the plaintiffs” and that “jury instructions will
not mitigate this unfair prejudice.” Id. at 172a; see id.
at 172a-175a.
The Missouri Court of Appeals did not address these
serious due-process concerns. The court instead in-
sisted that it “must presume the jury followed the trial
court’s instruction in reaching its verdict.” Id. at 14a
(citing Dieser v. St. Anthony’s Med. Ctr., 498 S.W.3d
419, 435 (Mo. 2016)). The court held that because “the
trial court instructed the jury to consider each Plain-
tiff’s claim on its own merits” and “in over 140 pages
of trial transcript, read the jury instructions for each
individual Plaintiff to the jury,” Petitioners could not
prove prejudice. Id.; see id. at 18a (“Because we pre-
sume the jury followed the trial court’s instruction in
reaching its verdict, we are not persuaded differences
in the law applicable to each Plaintiff’s claims ren-
dered the trial court’s decision not to sever Plaintiffs’
claims an abuse of discretion.”); id. at 18a-19a (“Any
dangers of prejudice arising from joinder were ade-
quately addressed by the trial court’s instructions to
the jury * * * .”).
2. The Second and Fifth Circuits have rejected mass
trials under similar circumstances as a due-process
violation.
The Second Circuit’s foundational case on mass tri-
als held that “[c]onsiderations of convenience and
economy must yield to a paramount concern for a fair
and impartial trial.” Johnson v. Celotex Corp., 899
F.2d 1281, 1285 (2d Cir. 1990). It tied those concerns
to “due process rights.” Id. at 1289. The Second Cir-
cuit applied Johnson’s due-process standard in a case
13
strikingly similar to this one, holding that a mass trial
of 48 asbestos cases prejudiced the defendants. Mal-
colm v. Nat’l Gypsum Co., 995 F.2d 346, 349-352 (2d
Cir. 1993). Even though the “jury was instructed on
several occasions to consider each case separately and
each juror was given a notebook for this purpose,” that
was not enough to prevent prejudice given the “mael-
strom of facts, figures, and witnesses.” Id. The court
concluded that because the plaintiffs had been ex-
posed to asbestos at different times under different
circumstances, and experienced different disease tra-
jectories, “the sheer breadth of the evidence made [the
trial court’s] precautions feckless in preventing jury
confusion.” Id. at 351-352. The Second Circuit or-
dered new trials, explaining that the “systemic urge
to aggregate litigation must not be allowed to trump
our dedication to individual justice,” id. at 350 (cita-
tion omitted), and that the consolidation had “sacri-
fice[d] basic fairness.” Id. at 354; see also In re Repet-
itive Stress Injury Litig., 11 F.3d 368, 373 (2d Cir.
1993) (ordering deconsolidation for similar reasons).3
The Fifth Circuit takes a similar approach. It re-
versed consolidation in a case involving just two plain-
tiffs, explaining that “the primary consideration” in
evaluating consolidation was “the individual [plain-
tiff’s] Constitutional right to due process.” Gwathmey
v. United States, 215 F.2d 148, 156 (5th Cir. 1954).
“As between a method of procedure which seriously
restricts or prevents” a party “from establishing his
claim in order to save time and costs and one which
3
District courts continue to follow Malcolm. E.g., Weiss v.
Nat’l Westminster Bank PLC, 2017 WL 10058916, at *2
(E.D.N.Y. Mar. 31, 2017); KGK Jewelry LLC v. ESDNetwork,
2014 WL 7333291, at *2 (S.D.N.Y. Dec. 24, 2014).
14
preserves those fundamental rights,” the court held,
“the choice is obvious and all reasonable doubt should
be resolved in favor of justice.” Id.
If the Missouri court had applied the Second or Fifth
Circuit’s standard, it would have severed these cases
for trial. See Dupont v. S. Pac. Co., 366 F.2d 193, 196
(5th Cir. 1966) (a “trial judge should * * * make sure
that the rights of the parties are not prejudiced by the
order of consolidation”); Trevizo v. Cloonan, 2000 WL
33348794, at *2 (W.D. Tex. Nov. 29, 2000) (similar);
cf. In re Fibreboard Corp., 893 F.2d 706, 710-711 (5th
Cir. 1990) (explaining in the class-action context that
aggregation is inappropriate where plaintiffs are “per-
sons claiming different diseases, different exposure
periods, and different occupations,” given fairness
“concerns” that “find expression in defendants’ right
to due process”).
3. At least eight other state and federal courts reject
the Missouri Court of Appeals’ categorical holding—
that it “must” affirm consolidation whenever the jury
is instructed to consider each claim separately. These
courts instead measure the dangers of consolidation
in terms of fundamental fairness, the very thing the
Due Process Clause guarantees. See Lassiter v. Dep’t
of Soc. Servs. of Durham Cty., 452 U.S. 18, 24-25
(1981).
The Texas Supreme Court is a paradigmatic exam-
ple. It has reviewed a 22-plaintiff mass asbestos trial
and held that jury instructions, standing alone, could
not cure prejudice from consolidation, explaining that
a “risk of juror confusion is present in this case even
if the trial court were to utilize techniques that have
seemed to lessen confusion in other asbestos cases,
such as * * * submitting jury issues and instructions
15
tailored to each plaintiff.” In re Ethyl Corp., 975
S.W.2d 606, 615 (Tex. 1998). The court examined
“whether the trial will be fair and impartial to all par-
ties,” analyzing the date and length of exposure for
each plaintiff to determine whether consolidation
could be achieved without prejudice. Id. at 614-617.
The court continues to apply that approach. See In re
Van Waters & Rogers, Inc., 145 S.W.3d 203, 210 (Tex.
2004) (per curiam) (ordering deconsolidation because
“significant juror confusion and undue prejudice
would result from” a mass trial of 20 toxic-tort plain-
tiffs).
The Supreme Court of Appeals of West Virginia has
likewise disagreed that jury instructions alone can
cure unfairness from consolidation. It has acknowl-
edged that “the risks of prejudice and confusion may
be reduced by the use of cautionary instructions to the
jury.” State ex rel. Appalachian Power Co. v. Ranson,
438 S.E.2d 609, 613 (W. Va. 1993). But it also consid-
ered whether “the risk of prejudice in consolidating”
three tort actions “outweigh[ed] the considerations of
judicial dispatch and economy” because “the tragic na-
ture of [one plaintiff’s] death could affect the jury’s de-
termination of the [other] cases * * *, especially if the
jury believes that recovery in each of the cases is in-
terdependent because of the consolidation.” Id.
The Iowa Supreme Court concurs. It reversed a
lower court that had consolidated cases because it
thought that “any dissimilar issues could be remedied
by proper jury instructions,” explaining that it was er-
ror to “conclud[e] these actions could be consolidated
without prejudice to” the defendants. Johnson v. Des
Moines Metro. Wastewater Reclamation Auth., 814
16
N.W.2d 240, 244, 248-249 (Iowa 2012) (internal quo-
tation marks omitted).
The en banc Fourth Circuit likewise disagreed with
a panel’s conclusion that “appropriate cautionary in-
structions” were sufficient to “safeguard” against un-
fairness from consolidation. Arnold v. E. Air Lines,
Inc., 681 F.2d 186, 193 (4th Cir. 1982). The full court
held that “convenience may not prevail where the in-
evitable consequence to another party is harmful and
serious prejudice.” Arnold v. E. Air Lines, Inc., 712
F.2d 899, 906 (4th Cir. 1983) (en banc). “In the actual
proof of the pudding, * * * the fairness required was
not possible to attain” from a mass trial. Id. at 907.
The Mississippi Supreme Court has reversed a trial
court’s consolidation of five suits alleging injury from
air pollution. See Vicksburg Chem. Co. v. Thornell,
355 So. 2d 299 (Miss. 1978). As here, the jury had re-
turned identical awards for each household—regard-
less of the number of plaintiffs in the household, the
“different family situations,” and the particular inju-
ries suffered. Id. at 301-302. The court held that it
could not rely on jury instructions to cure prejudice,
because “the identical verdicts indicate that the jury
did not follow the instructions on damages.” Id. at
302. And the court continues to evaluate prejudice
from consolidation by examining whether a “jury can
be expected to reach a fair result under the[ ] circum-
stances.” Janssen Pharmaceutica, Inc. v. Armond,
866 So. 2d 1092, 1101 (Miss. 2004).
Finally, at least three other courts apply a multi-fac-
tor test to evaluate whether consolidation will preju-
dice the defendant. See Cantrell v. GAF Corp., 999
F.2d 1007, 1011 (6th Cir. 1993) (“[T]he decision to con-
solidate is one that must be made thoughtfully, with
17
specific reference to the [discrete] factors identi-
fied * * * .”); ACandS, Inc. v. Godwin, 667 A.2d 116,
147-149 (Md. 1995); Minnesota Pers. Injury Asbestos
Cases v. Keene Corp., 481 N.W.2d 24, 26-27 (Minn.
1992). These multi-factor tests are also inconsistent
with the Missouri approach, which presumes that jury
instructions alone guarantee a fair trial.
The only court to agree with Missouri is the Ala-
bama Supreme Court. In a mass trial of asbestos
claims, the defendant argued that “consolidation con-
fused the jury and resulted in a flawed verdict.” Ow-
ens-Corning Fiberglass Corp. v. Gant, 662 So. 2d 255,
256 (Ala. 1995). The Alabama Supreme Court disa-
greed, emphasizing that “the trial judge gave specific
instructions in order to eliminate juror confusion.” Id.
But the court never evaluated whether the defend-
ant’s right to a fair trial was violated despite those in-
structions. Id.
Given this stark divergence, the Court should step
in.
B. The Missouri-Alabama Rule Denies Due
Process.
“It is axiomatic that a fair trial in a fair tribunal is a
basic requirement of due process.” Caperton v. A.T.
Massey Coal Co., 556 U.S. 868, 876 (2009) (alterations
and internal quotation marks omitted). By cavalierly
treating the jury instructions as a cure-all, the Mis-
souri court ignored how a mass trial of dissimilar
claims can confuse a jury and deprive defendants of
their constitutional fair-trial right.
“[D]ue process requires that” aggregation “not be
used to diminish the substantive rights of any party
to the litigation.” Stonebridge Life Ins. Co. v. Pitts,
236 S.W.3d 201, 205 (Tex. 2007) (per curiam).
18
“Aggregating claims can dramatically alter substan-
tive tort jurisprudence” by “removing individual con-
siderations from the adversarial process.” Sw. Refin.
Co. v. Bernal, 22 S.W.3d 425, 438 (Tex. 2000); see also
Hall v. Hall, 138 S. Ct. 1118, 1128 (2018) (“[C]onsoli-
dation could not prejudice rights to which the parties
would have been due had consolidation never oc-
curred.”).
Mass trials obscure difficult causation questions be-
cause jurors are asked to “assimilate vast amounts of
information” and individual cases are “lost in the
shadow of a towering mass litigation.” Malcolm, 995
F.2d at 350 (citation omitted). Mass trials also risk
creating a “perfect plaintiff” who is “pieced together
for litigation” from “the most dramatic” features of in-
dividual cases. Broussard v. Meineke Disc. Muffler
Shops, Inc., 155 F.3d 331, 344 (4th Cir. 1998).
Those fears were realized here. The jury was con-
fronted with 22 different plaintiffs with dramatically
different cancer-risk profiles, prognoses, and talc use.
The mass trial papered over these differences, allow-
ing the jury to overlook significant weaknesses in in-
dividual plaintiffs’ claims—and to infer causation
from the number of plaintiffs before it. For example,
if Ms. Ingham’s case had proceeded individually, the
jury would have heard about her year with cancer,
how she went into full remission, and how she spent
the next 32 years cancer-free. See Tr. 4741:16-25.
That would not have been a $25-million-plus-puni-
tives case. Or if Ms. Walker’s case had proceeded in-
dividually, the jury would have heard about her BRCA
gene mutation, which increases the risk of ovarian
cancer 20 to 60 times. See id. at 4709:3-8, 4744:4-21.
That would not have been a $25 million-plus-
19
punitives case, either. Consolidating these cases with
Ms. Packard’s, however, allowed plaintiffs’ lawyers to
present Ms. Packard’s videotaped deathbed testimony
as she succumbed to her 10-year battle with cancer
and conflate Ms. Ingham and Ms. Walker’s experi-
ences with Ms. Packard’s. See id. at 2207:10-16.
There is good reason to think that consolidation
made the difference here: Other single-plaintiff trials
against Petitioners have resulted in defense jury ver-
dicts, mistrials, and, in Missouri, several far-smaller
compensatory-damages awards. See, e.g., Forrest v.
Johnson & Johnson, No. 1522-CC00419-02 (Mo. Cir.
Ct. Dec. 20, 2019) (defense verdict in single-plaintiff
Missouri trial); Swann v. Johnson & Johnson, No.
1422-CC09326-01 (Mo. Cir. Ct. Mar. 3, 2017) (same).
It is implausible that separate trials would have re-
sulted in liability as to each of 22 plaintiffs, with the
same $25 million verdict for each. In these circum-
stances, consolidation deprived Petitioners of their
due-process rights.
Worse still, there is no logical stopping point to the
Missouri-Alabama approach. If this case did not war-
rant severance, no case will. The Court of Appeals’
logic would permit consolidation of dozens or hun-
dreds of plaintiffs with radically different medical con-
ditions and claims arising under dozens of States’
laws, so long as the jury was instructed to consider
each case individually. That is no way to assure a fair
trial. And the problem is not limited to these cases:
Mass consolidation generally has been a “spectacular”
due-process “failure.” Mark H. Reeves, Makes Sense
to Me: How Moderate, Targeted Federal Tort Reform
Legislation Could Solve the Nation’s Asbestos Litiga-
tion Crisis, 56 Vand. L. Rev. 1949, 1968 (2003); id.
20
(consolidation “substantially abridges the due process
rights of defendants by prejudicing and confusing ju-
ries and by frequently forcing settlements that pre-
clude jury trials altogether”); see also Carter G. Phil-
lips et al., Rescuing Multidistrict Litigation from the
Altar of Expediency, 1997 B.Y.U. L. Rev. 821, 836
(1997) (similar).
This Court has already recognized the dangers of ag-
gregate litigation in the class-action context, warning
that an “elephantine mass of asbestos cases * * * de-
fies customary judicial administration.” Ortiz v. Fi-
breboard Corp., 527 U.S. 815, 821 (1999); see Amchem
Prod., Inc. v. Windsor, 521 U.S. 591, 625 (1997) (“cau-
tion” is called for in aggregation “when individual
stakes are high and disparities among class members
great”). The Court has accordingly set standards to
assure that a defendant receives “individualized de-
terminations of each” plaintiff’s claims and an oppor-
tunity to “litigate its * * * defenses to individual
claims.” Wal-Mart, 564 U.S. at 366-367.
This case offers the Court the chance to do the same
for mass torts. The many jurisdictions that disagree
with the Missouri-Alabama approach appropriately
protect defendants’ constitutional rights. They recog-
nize a truth articulated by this Court long ago that
“there are some contexts in which the risk that the
jury will not, or cannot, follow instructions is so great,
and the consequences of failure so vital to the defend-
ant, that the practical and human limitations of the
jury system cannot be ignored.” Bruton v. United
States, 391 U.S. 123, 135 (1968). Due process requires
careful analysis of whether a jury can realistically be
expected to fairly adjudicate consolidated claims, not
21
Panglossian reliance on jury instructions. This Court
should step in.
II. THIS CASE EXACERBATES TWO CLEAR
SPLITS OVER PUNITIVE DAMAGES.
The state and federal courts are also deeply divided
over whether due process permits a punitive-damages
award that far exceeds substantial compensatory
damages. This Court stated in State Farm Mutual
Automobile Insurance Co. v. Campbell, 538 U.S. 408
(2003), that “[w]hen compensatory damages are
substantial,” “a lesser ratio” of punitive damages,
“perhaps only equal to compensatory damages, can
reach the outermost limit of the due process
guarantee.” Id. at 425; see also Exxon, 554 U.S. at
514-515. Yet many lower courts treat that statement
about the “outermost limit” of due process as mean-
ingless dicta, holding instead that any single-digit ra-
tio is permissible. And some courts do not hold even
that line.
That is not all. The state and federal courts are fur-
ther split over how to calculate the ratio of punitive to
compensatory damages in cases like this one where
the defendants are jointly and severally liable—lead-
ing to different conclusions about whether a punitive
award is constitutional. As this petition starkly illus-
trates, whether a defendant is subject to millions or
even billions of dollars in punitive damages greatly
depends on the courthouse in which a case is brought.
Over a decade after State Farm, this Court should
make clear the case means what it says.
22
A. The State And Federal Courts Are Divided
Over The Due-Process Limits On Punitive
Damages.
The state and federal courts are intractably split
over whether due process permits a punitive-damages
award that far exceeds substantial compensatory
damages.
1. Five state and federal courts have invoked State
Farm to limit punitives at or near a 1:1 ratio in cases
where compensatory damages are substantial, includ-
ing Missouri’s own federal authority, the Eighth Cir-
cuit.
In Lompe v. Sunridge Partners, LLC, 818 F.3d 1041
(10th Cir. 2016), the Tenth Circuit held that due pro-
cess concerns required it to reduce an 11.5:1 ratio to
1:1. See id. at 1073-75. The court explained that
“[b]ecause we have concluded that the amount of the
compensatory damages * * * is substantial, an award
of punitive damages equal to the compensatory
award * * * may represent the outermost limit of the
due process guarantee.” Id. at 1073.
The Sixth Circuit has done the same. It ordered a
punitive damages award remitted to an amount “not
to exceed the amount of compensatory damages” of $6
million. Morgan v. New York Life Ins. Co., 559 F.3d
425, 443 (6th Cir. 2009). And it has remitted punitive
damages to match compensatories based on the “sce-
nario described in State Farm, where the plaintiff has
received a substantial compensatory-damages award,
and a ratio of 1:1 or something near to it is an appro-
priate result.” Bach v. First Union Nat’l Bank, 486
F.3d 150, 156 (6th Cir. 2007). The Third Circuit and
South Dakota Supreme Court take a similar ap-
proach. See Jurinko v. Med. Protective Co., 305 F.
23
App’x 13, 30 (3d Cir. 2008) (“[T]he Supreme Court’s
statement”—capping the ratio at 1:1 when compensa-
tory damages are substantial—“instructs the outcome
here.”); Roth v. Farner-Bocken Co., 667 N.W.2d 651,
671 (S.D. 2003) (finding “a punitive damages award at
or near the amount of compensatory damages” appro-
priate “where there [i]s a substantial compensatory
damage award” (citation omitted)).
The Eighth Circuit—which includes the Missouri
federal courts—has largely followed suit. See Boerner
v. Brown & Williamson Tobacco Co., 394 F.3d 594, 603
(8th Cir. 2005) (setting 1:1 ratio as the limit in case
involving $4 million in compensatory damages for
cancer claims against cigarette manufacturer, even
after finding the manufacturer “exhibited a callous
disregard for the adverse health consequences of
smoking”); Williams v. ConAgra Poultry Co., 378 F.3d
790, 799 (8th Cir. 2004) (remitting punitive-damages
award to an amount equal to the $600,000 compensa-
tory-damages award). The court has approved of ra-
tios above 1:1 in intentional-tort cases. See Ondrisek
v. Hoffman, 698 F.3d 1020, 1029-31 (8th Cir. 2012)
(repeated battery of children by a religious cult
leader); see also Lee ex rel. Lee v. Borders, 764 F.3d
966, 975-976 (8th Cir. 2014) (sexual assault at facility
for developmentally disabled individuals). But even
then, the court has rejected ratios above 4:1, citing
State Farm. See Ondrisek, 698 F.3d at 1031 (remit-
ting 10:1 ratio to 4:1); Lee, 764 F.3d at 976 (permitting
3:1 ratio).
2. Other state and federal courts treat a 10:1 ratio
as the limit, paying lip service to State Farm’s warn-
ing that “few awards exceeding a single-digit ra-
tio * * * will satisfy due process,” while ignoring State
24
Farm’s separate statement that when a jury awards
substantial compensatory damages, a 1:1 ratio “can
reach the outermost limit of the due process
guarantee.” 538 U.S. at 425.
The Ninth Circuit maintains that a 4:1 ratio is “a
good proxy for the limits of constitutionality” where
“there are significant economic damages” but the mis-
conduct “is not particularly egregious.” Planned
Parenthood of Columbia/Willamette Inc. v. Am. Coal.
of Life Activists, 422 F.3d 949, 962 (9th Cir. 2005); see
also Ramirez v. TransUnion LLC, 951 F.3d 1008, 1037
(9th Cir. 2020) (permitting 4:1 ratio). It has held that
“a single-digit ratio greater than 4 to 1 might be con-
stitutional,” however, where the economic damages
are significant and the misconduct is “more egre-
gious.” Planned Parenthood, 422 F.3d at 962-963 (ul-
timately approving 9:1 ratio).
The Eleventh Circuit dismissed this Court’s state-
ment in State Farm that a 1:1 ratio “can reach the
outermost limit of the due process guarantee” as
“dicta.” Cote v. Philip Morris USA, Inc., 985 F.3d 840,
849 (11th Cir. 2021) (upholding 3.3:1 ratio). And other
state high courts rubber-stamp punitive damages be-
low the 10:1 threshold. See, e.g., Seltzer v. Morton, 154
P.3d 561, 612-613, 615 (Mont. 2007) (reducing ratio
from 18.2:1 to 9:1 because “a single-digit ratio, alt-
hough not compulsory, is more likely to comport with
due process”); Manor Care, Inc. v. Douglas, 763 S.E.2d
73, 103, 105 (W. Va. 2014) (approving $32-million pu-
nitive-damages award seven times the compensatory
award because “ratio statements by the United States
Supreme Court[ ] do not represent strict standards”
but rather “merely provide a guide”); Union Pac. R.R.
Co. v. Barber, 149 S.W.3d 325, 348 (Ark. 2004)
25
(holding that $25-million punitive-damages award
five times the compensatory award satisfied due pro-
cess because it was not “breathtaking”).
3. Some state courts eschew even the single-digit
limit. The Oregon Supreme Court has affirmed a
$79.5 million punitive award that was 97 times the
compensatory award, reasoning that “two guide-
posts—reprehensibility and comparable sanctions—
can provide a basis for overriding the concern that
may arise from a double-digit ratio.” Williams v.
Philip Morris Inc., 127 P.3d 1165, 1181-82 (Or. 2006),
adhered to on reconsideration, 176 P.3d 1255 (2008).
And below, the Missouri Court of Appeals affirmed an
11.5:1 ratio against J&J.
The Court should resolve this disagreement. If this
case had been tried under Eighth or Tenth Circuit
precedent, J&J’s punitive damages would have been
limited to $62.5 million and JJCI’s punitive damages
would have been limited to $437.5 million (a 1:1 ratio).
If this case had been tried in the Ninth Circuit, J&J’s
punitive damages would have been limited to $562.5
million (a 9:1 ratio), while JJCI’s damages would have
remained $900 million (a 2.1:1 ratio). But because
this case was tried in the plaintiff-friendly Missouri
courts, J&J’s punitive damages were $715.9 million
(an 11.5:1 ratio), and JJCI’s punitive damages were
$900 million (a 2.1:1 ratio). The lower-court split
means that Petitioners were subject to over $1 billion
in additional liability. Permitting this kind of dispar-
ity—and subjecting defendants to this kind of ten-fig-
ure unpredictability—violates due process.
26
B. The State And Federal Courts Are Divided
Over How To Calculate The Ratio Of Puni-
tive To Compensatory Damages.
This case also presents a straightforward split with
the Missouri Supreme Court on one side and the
Eighth Circuit and Texas Supreme Court on the other
over how to calculate the ratio of punitive to compen-
satory damages in cases involving joint-and-several li-
ability. This issue, while seemingly technical, has a
dramatic impact: The Missouri Supreme Court’s ap-
proach halves the ratio where two defendants are
jointly and severally liable, permitting awards exceed-
ing a 10:1 ratio and increasing the damages here by at
least $350 million.
Joint and several liability measures the harm that
defendants collectively cause. See Honeycutt v. United
States, 137 S. Ct. 1626, 1631 (2017). Punitive dam-
ages, however, are assessed individually. To deter-
mine the ratio of punitive to compensatory damages
for each defendant, the Missouri Supreme Court as-
sumes the legal impossibility that each defendant will
pay the entire joint-and-several compensatory award.
Contra id. (“[T]he plaintiff” can “recover only once for
the full amount.”).
In Lewellen v. Franklin, 441 S.W.3d 136 (Mo. 2014),
for example, two defendants were jointly and sever-
ally liable for $25,000 in compensatory damages. The
Missouri Supreme Court assumed that each defend-
ant would pay the full $25,000 and calculated the ra-
tios as 40:1 and 22:1, respectively. See id. at 147. If
the court had assumed that each defendant would pay
half the compensatory award, it would have calcu-
lated the ratios as 80:1 and 44:1. The Missouri Su-
preme Court’s approach meant it did not have to
27
justify the true 80:1 and 44:1 ratios—or reduce the pu-
nitive damages to a ratio that comports with due pro-
cess. The Missouri Court of Appeals applied the same
method here, citing Lewellen. See Pet. App. 99a-100a
n.27.
The Eighth Circuit has rejected that approach. It
holds that “divid[ing] each individual punitive dam-
ages award by the entire actual damages award * * *
assumes an impossibility”—that “each defendant will
ultimately pay the full compensatory damages
award.” Grabinski v. Blue Springs Ford Sales, Inc.,
203 F.3d 1024, 1026 (8th Cir. 2000). The Eighth Cir-
cuit accordingly determines each defendant’s share of
the compensatory damages before calculating the pu-
nitive-to-compensatory ratio. See id.
The Texas Supreme Court agrees. It holds that the
total “joint-and-several compensatory award” is not
“the proper denominator for calculating the ratio of
compensatory to exemplary damages.” Horizon
Health Corp. v. Acadia Healthcare Co., 520 S.W.3d
848, 878-879 (Tex. 2017); see also Olson v. Brenntag
N. Am., Inc., 132 N.Y.S.3d 741 (N.Y. Sup. Ct. 2020)
(Table) (restating Grabinski’s concern that dividing
individual punitive awards by the total joint-and-sev-
eral compensatory award “is logically impossible” and
remitting a punitive-damages award from a 12:1 ratio
to a 7:1 ratio in a talc case against Petitioners).
Applying the Eighth Circuit and Texas Supreme
Court’s approach here results in very different ratios.
J&J would be liable for $715 million in punitive dam-
ages and $62.5 million in compensatory damages—
half of the joint-and-several compensatory award—for
a ratio of 11.5:1. JJCI would be liable for $900 million
in punitive damages and $437.5 million in compensa-
tory damages—$375 million in individual damages
28
plus $62.5 million of the joint-and-several portion of
the compensatory award—for a ratio of 2.1:1.
Those revised ratios would lead to a revised result.
The Missouri Court of Appeals emphasized—quoting
State Farm—that “[f]ew awards exceeding a single-
digit ratio between punitive and compensatory dam-
ages, to a significant degree, will satisfy due process”
in any case, let alone one with such substantial dam-
ages. Pet. App. 99a. If the court had properly calcu-
lated the ratios, and had reduced the ratio for J&J to
5.7:1—half of the 11.5:1 ratio as properly calculated—
it would have cut J&J’s punitive-damages award by
$350 million. This Court’s intervention is needed to
address this recurring issue, which is important to de-
fendants generally and to J&J in this case.
C. The Decision Below Is Divorced From This
Court’s Precedent And Long-Standing Due-
Process Principles.
The decision below is wrong, for three reasons.
First, “[e]lementary notions of fairness enshrined in
our constitutional jurisprudence dictate that a person
receive fair notice not only of the conduct that will
subject him to punishment, but also of the severity of
the penalty that a State may impose.” BMW of N.
Am., Inc. v. Gore, 517 U.S. 559, 574 (1996). That is
why State Farm held that “a lesser ratio, perhaps only
equal to compensatory damages, can reach the
outermost limit of the due process guarantee” “[w]hen
compensatory damages are substantial.” 538 U.S. at
425.
But State Farm did not “reduce[ ] the inconsistency
or unpredictability of punitive damages awards.”
Laura J. Hines & N. William Hines, Constitutional
29
Constraints on Punitive Damages: Clarity, Con-
sistency, and the Outlier Dilemma, 66 Hastings L.J.
1257, 1257, 1284 (2015) (surveying 507 punitive-dam-
ages awards handed down since State Farm). And so
this Court drew a firmer line in Exxon, mandating a
1:1 ratio in a maritime case involving a $500 million
compensatory award. See 554 U.S. at 514-515. That
line should apply equally here.
To be sure, Exxon was a maritime case. But Exxon’s
concerns about predictability and fairness are not
unique to maritime law. See Jill Wieber Lens, Proce-
dural Due Process and Predictable Punitive Damage
Awards, 2012 B.Y.U. L. Rev. 1, 25 (2012). Exxon iden-
tified “[t]he real problem” as “the stark unpredictabil-
ity of punitive damage awards” in general. Id. at 7
(quoting Exxon, 554 U.S. at 499). And the Court’s so-
lution—a 1:1 ratio—was based on the median ratio of
state court awards, not federal maritime cases. See id.
at 25-26. The due-process problem with inconsistent
punitive awards is the same within and without mar-
itime law; so should be the solution.
This unpredictability is magnified in the mass-tort
context, where plaintiffs may file thousands of cases
and juries may return verdicts ranging from a com-
plete defense victory, only modest compensatory dam-
ages, or—as here—billions in punitives. See, e.g.,
Swann, No. 1422-CC09326-01 (defense verdict);
Giannecchini v. Johnson & Johnson, No. 1422-
CC9012-02 (Mo. Cir. Ct. Nov. 16, 2016) ($2.6 million
compensatory award to a single plaintiff), vacated on
appeal for lack of personal jurisdiction, No. ED105443
(Mo. Ct. App. June 18, 2019); Pet. App. 100a ($500
million compensatory award to 20 plaintiffs). Permit-
ting unlimited punitive damages in every one of these
30
cases makes it impossible for defendants to predict
their potential liability. And it incentivizes plaintiffs’
lawyers to file thousands of lawsuits in the hopes of
hitting the punitives jackpot. The mass-tort context
calls out for the Court to enforce the 1:1 ratio State
Farm identified and Exxon adopted.
Second, large punitive awards create a significant
risk that the jury is punishing hypothetical harm to
non-parties—as was almost certainly the case here.
See supra p. 9 (juror’s explanation that award was
meant to divest Petitioners of all profits from talc
sales nationwide for past 40 years). The “increasingly
common phenomenon” illustrated by this case, where
individual punitive awards “are in essence assessed
on a putative ‘classwide’ basis for harms actually or
potentially inflicted upon numerous individuals,”
Catherine M. Sharkey, Punitive Damages As Societal
Damages, 113 Yale L.J. 347, 352 (2003), poses signifi-
cant due-process concerns requiring this Court’s at-
tention.
This problem is particularly acute in mass torts that
produce multiple punitive awards. Judge Friendly
recognized that punitive damages—as first con-
ceived—were typically awarded where “the number of
plaintiffs will be few” and “they will join, or can be
forced to join, in a single trial.” Roginsky v. Richard-
son-Merrell, Inc., 378 F.2d 832, 838-839 (2d Cir. 1967).
A single jury would thus consider the reprehensibility
of the defendant’s conduct and assess whether (and
how much) punitive damages were necessary to meet
the State’s punishment and deterrence goals. See Pac.
Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 19 (1991).
Here, by contrast, Petitioners face thousands of law-
suits and potentially thousands of juries, creating a
31
real risk each jury will “double count” damages and
punish Petitioners for all of their allegedly wrongful
conduct in each one of thousands of cases. State Farm,
538 U.S. at 423 (quoting Gore, 517 U.S. at 593 (Breyer,
J., concurring)). Yet the “Due Process Clause forbids
a State to use a punitive damages award to punish a
defendant for injury that it inflicts upon nonparties”
because a defendant “has no opportunity to defend
against” such a charge. Philip Morris USA v. Wil-
liams, 549 U.S. 346, 353 (2007).
That principle has a long historical pedigree. As the
South Carolina Supreme Court explained in 1901,
“punitive damages go to the plaintiff, not as a fine or
penalty for a public wrong, but in vindication of a pri-
vate right which has been willfully invaded.” Watts v.
S. Bound R.R. Co., 38 S.E. 240, 242 (S.C. 1901). Other
early American cases similarly conceptualized puni-
tive awards “as punishment only for the legal wrong
that is actually before the court.” Thomas B. Colby,
Beyond the Multiple Punishment Problem: Punitive
Damages As Punishment for Individual, Private
Wrongs, 87 Minn. L. Rev. 583, 622-629 (2003). Enforc-
ing a 1:1 ratio of punitive to compensatory damages
lessens the risk that a jury will punish the defendant
for harm to non-parties and will tether punitive dam-
ages to their traditional aims.
Third, punitive awards that are many multiples of
compensatory damages can harm plaintiffs, too.
Large awards divert resources that might otherwise
be available for future plaintiffs seeking compensa-
tory damages. That risk is hardly theoretical; asbes-
tos litigation has bankrupted over 100 companies,
leaving them unable to compensate plaintiffs whose
injuries come later in time. See U.S. Gov’t
32
Accountability Off., GAO-11-819, Asbestos Injury
Compensation: The Role and Administration of Asbes-
tos Trusts 2 (2011). And the risk is greater when
plaintiffs allege injuries, like those here, that may not
manifest until decades after an alleged exposure. Im-
posing a 1:1 ratio hedges against these harmful-to-
plaintiffs possibilities.
Just like State Farm, “this case is neither close nor
difficult.” 538 U.S. at 418. But it is immensely im-
portant—requiring Petitioners to pay over a billion
dollars in punitive damages to just 20 plaintiffs, and
setting a dangerous standard for mass-tort litigation
across the country. The Court should grant certiorari.
III. MISSOURI’S EXPANSIVE PERSONAL-
JURISDICTION THEORY RAISES THE
SAME QUESTION PRESENTED IN FORD.
Finally, the Missouri Court of Appeals held that
Pharma Tech affixing a label JJCI designed in New
Jersey to bottles filled in Missouri was sufficient for
Plaintiffs’ claims to arise out of or relate to JJCI’s sup-
posed Missouri contacts. According to the court below,
JJCI’s contract with Pharma Tech was “a direct link
in the production chain of Shimmer’s eventual sale to
the public.” Pet. App. 35a. That holding broke from
the federal courts of appeals that require the defend-
ant’s in-state conduct be a proximate cause, not just a
but-for cause, of a plaintiff’s claims. See, e.g., Harlow
v. Children’s Hosp., 432 F.3d 50, 61 (1st Cir. 2005);
Beydoun v. Wataniya Rests. Holding, Q.S.C., 768 F.3d
499, 507-508 (6th Cir. 2004). And it presents the same
question this Court is considering in Ford—but on
facts that more compellingly demonstrate the error in
the bare-causation approach.
33
Under a proximate-cause standard—or indeed, any
notion of relatedness beyond a bare but-for test—the
“operative facts” of the non-Missouri plaintiffs’ claims
did not arise out of or relate to Pharma Tech’s bottling
conduct. Beydoun, 768 F.3d at 507 (citation omitted).
Plaintiffs assert that talc contains asbestos and asbes-
tos causes cancer. To the extent plaintiffs claim that
the talc in Shimmer should have been mined differ-
ently, the mining did not occur in Missouri. To the
extent plaintiffs claim that the talc in Shimmer
should have been tested differently, the testing did
not occur in Missouri. And to the extent plaintiffs
claim that JJCI should have warned of talc’s supposed
dangers, Shimmer’s label was designed in New Jer-
sey, not Missouri. See Pet. App. 3a, 33a. Pharma
Tech is a third party that had nothing to do with these
activities and was not even named in this lawsuit.
Plaintiffs’ suit did not challenge any decision or sub-
stantive action Pharma Tech took in Missouri—much
less a decision or action meeting the “arise out of or
relate to” requirement.
This Court granted review in Ford to determine
whether a proximate-cause standard, or some other
test, applies to the arise-out-of-or-relate-to prong of
specific personal jurisdiction. See Petition for Writ of
Certiorari at i, Ford, No. 19-368 (petition granted Jan.
17, 2020). This petition presents the same question,
on even starker facts. The Missouri court found per-
sonal jurisdiction over the claims of plaintiffs who did
not reside in Missouri, did not purchase or use Peti-
tioners’ products in Missouri, did not rely on any Mis-
souri advertising in making their purchasing deci-
sions, and were not injured in Missouri. The only con-
nection to Missouri is a third party that bottled Shim-
mer in Missouri—and the operative facts of the non-
34
Missouri plaintiffs’ claims do not arise from that ac-
tivity. It violated JJCI’s due-process rights to subject
it “to the coercive power of a State” with no “legitimate
interest in the claims in question.” Bristol-Myers
Squibb, 137 S. Ct. at 1780. The Court should there-
fore at the very least hold the petition and then con-
sider granting, vacating, and remanding in light of
Ford.
IV.THIS PETITION IS AN IDEAL VEHICLE TO
CONSIDER THESE IMPORTANT,
INTERLOCKING DUE-PROCESS
QUESTIONS.
This case is a stark illustration of the problems
posed by mass litigation—and the reasons why the
Court should grant review.
The jury’s award was one of the largest ever in a
product-liability case4—and the largest jury verdict in
the country in 2018.5 The enormous “economic inter-
ests at stake,” both for Petitioners and for other man-
ufacturers facing mass-tort claims, is a significant
reason to grant certiorari. Mobil Oil Expl. & Produc-
ing Se., Inc. v. United Distrib. Cos., 498 U.S. 211, 214-
215 (1991); see Stephen M. Shapiro et al., Supreme
Court Practice § 4.13, at 269-270 (10th ed. 2013).
Moreover, this case is merely one of thousands filed
across the country. The questions presented here will
continue to recur in nearly identical suits both inside
and outside Missouri. Each will pose similar
4
See Margaret Cronin Fisk, Why Johnson & Johnson May
Not Have to Pay Its $4.7 Billion Court Verdict, Bloomberg
(Jan. 9, 2019), https://bloom.bg/3iQmPEl.
5
See Top 100 Verdicts of 2018, Nat’l L.J., June 2019, at 32,
available at https://bit.ly/2YfEThA.
35
questions about personal jurisdiction, consolidation,
and punitive damages; indeed, plaintiffs’ lawyers’ suc-
cess here has emboldened them to try the same tactics
again. See, e.g., Forrest, No. 1522-CC00419-02 (Mo.
Cir. Ct.) (multi-plaintiff trial). The “enormous poten-
tial liability” facing Petitioners “is a strong factor in
deciding whether to grant certiorari.” Fidelity Fed.
Bank & Tr. v. Kehoe, 547 U.S. 1051, 1051 (2006)
(Scalia, J., concurring in denial of certiorari).
The questions posed here are also broadly applica-
ble. Whether dozens of tort plaintiffs may proceed to
trial before the same jury—and under what circum-
stances—is a crucial question for both state and fed-
eral courts, which must ensure that multi-plaintiff tri-
als comply with due process. Whether a punitive
award may far exceed a substantial compensatory
award is a significant constitutional question that
courts will continue to face. And whether personal ju-
risdiction exists when a defendant’s in-state actions
have no substantive connection to a plaintiff’s claims
is an issue this Court has already granted certiorari
to consider.
This petition is an ideal vehicle to address these im-
portant issues. All three questions were raised and
passed on below by two courts, and this Court rou-
tinely grants review of cases arising from intermedi-
ate state courts. E.g., Cyan, Inc. v. Beaver Cty. Emps.
Ret. Fund, 137 S. Ct. 2325 (2017); Murr v. Wisconsin,
136 S. Ct. 890 (2017). And all three questions are out-
come determinative, requiring dismissal, retrial, or
remittitur.
In short, if any case merits review, this is it. The
Court has repeatedly sought to curb abuses in class-
36
action litigation; it should do the same for mass-tort
litigation. It should grant certiorari.
CONCLUSION
The petition should be granted. Alternatively, the
petition should be held for Ford and disposed of as ap-
propriate in light of the Court’s decision.
Respectfully submitted,
E. JOSHUA ROSENKRANZ NEAL KUMAR KATYAL

PETER A. BICKS Counsel of Record
LISA T. SIMPSON SEAN MAROTTA
NAOMI J. SCOTTEN KATHERINE B. WELLINGTON
EDMUND HIRSCHFELD BENJAMIN A. FIELD
SUTCLIFFE LLP 555 Thirteenth Street, N.W.
51 West 52nd Street Washington, D.C. 20004
New York, NY 10019 (202) 637-5600
neal.katyal@hoganlovells.com
ROBERT M. LOEB
ROBBIE MANHAS KRISTINA ALEKSEYEVA
SUTCLIFFE LLP 390 Madison Avenue
1152 15th Street, N.W. New York, NY 10017
Washington, D.C. 20005
Counsel for Petitioners

MARCH 2021
APPENDIX
1a
APPENDIX A
_________
IN THE MISSOURI COURT OF APPEALS

EASTERN DISTRICT
DIVISION TWO
_________
ROBERT INGHAM, ET AL.,
Respondent,
vs.
JOHNSON & JOHNSON, ET AL.,
Appellant.
_________
No. ED107476
_________
Appeal from the Circuit Court of

the City of St. Louis
_________
Honorable Rex M. Burlison

_________
Filed: June 23, 2020

_________
Introduction
Johnson & Johnson (“J&J”) and Johnson & Johnson
Consumer Companies Inc. (“JJCI”) (collectively,
“Defendants”) appeal the trial court’s judgment after
a jury verdict for Gail L. Ingham and twenty-one other
2a
plaintiffs (collectively, “Plaintiffs”) 1 on their product
liability claims. Defendants bring ten points on
appeal. In their first point, Defendants argue the trial
court erred in denying their motion for severance. In
their second point, Defendants argue the trial court
erred in overruling their objection to a statement
made by Plaintiffs’ counsel during closing argument.
In their third point, Defendants argue the trial court
erred in finding they were subject to personal
jurisdiction in Missouri on the claims of those
Plaintiffs not residing in Missouri. In their fourth
through seventh points, Defendants challenge the
admissibility of various expert testimony. In their
eighth point, Defendants argue the trial court erred in
denying their motion for directed verdict because
Plaintiffs failed to make a submissible case for
causation. In their ninth point, Defendants argue the
trial court erred in denying their motion for directed
verdict because Plaintiffs failed to make a submissible
case for punitive damages. Last, Defendants argue
the trial court erred in denying their motion to vacate
or remit the jury’s punitive damages award. We
reverse the trial court’s judgment in part, and affirm
the trial court’s judgment as modified under Rule
84.14.2
1
Plaintiffs’ Petition initially named eighty-two plaintiffs,
including spouses of the other named Plaintiffs. Only twenty-two
plaintiffs and their spouses proceeded to trial.
2
All rule references are to the Missouri Supreme Court Rules
(2018).
3a
Factual and Procedural Background
JJCI manufactures and sells products containing
talcum powder (“talc”), a mineral used in cosmetics,
across the United States. J&J is JJCI’s parent
company. Defendants are both incorporated and
headquartered in New Jersey. Plaintiffs filed a
petition (“Petition”)3 against Defendants in St. Louis
City Circuit Court, alleging claims for strict liability,
negligence, and other torts. Plaintiffs’ Petition
alleged they developed ovarian cancer after continued
use of two of Defendants’ talc products: Johnson’s
Baby Powder (“Johnson’s Baby Powder”) and Shower
to Shower, including any variation, modification, or
extension such as Shower to Shower Shimmer Effects
(“Shimmer”) and Shower to Shower Sport
(collectively, “Products”). Plaintiffs allege Defendants
knew for decades their Products contained asbestos
fibers and other dangerous carcinogens but persisted
in producing and marketing the Products despite the
dangerous health hazards they posed. Plaintiffs
allege Defendants mounted a concerted effort to avoid
warning government regulators and public health
officials, the scientific and medical community, and
the public of the contents of the Products. Plaintiffs
sought compensatory and punitive damages.
Seventeen Plaintiffs lived, purchased Defendants’
Products, used Defendants’ Products, and developed
ovarian cancer outside Missouri (collectively, the
“Non-Resident Plaintiffs”). Five Plaintiffs lived,
purchased Defendants’ Products, used Defendants’
3
All references to the Petition are to Plaintiffs’ Third Amended
Petition.
4a
Products, and developed ovarian cancer in Missouri
(collectively, the “Missouri Plaintiffs”).
Before trial, Defendants moved to dismiss Plaintiffs’
Petition for lack of personal jurisdiction over the Non-
Resident Plaintiffs’ claims. 4 Defendants asserted
there is no general jurisdiction over Defendants in
Missouri because they are incorporated and
headquartered in New Jersey. Defendants asserted
there is no specific jurisdiction over them in Missouri
on the Non-Resident Plaintiffs’ claims because the
Non-Resident Plaintiffs “reside[d] outside of Missouri,
purchased and used [Defendants’] products outside of
Missouri, and ‘developed’ ovarian cancer outside of
Missouri.”
In their Petition, Plaintiffs alleged Defendants were
subject to specific jurisdiction on their claims because
JJCI had two long-term contractual relationships
with Pharma Tech Industries, which is headquartered
in Missouri. Plaintiffs alleged one contractual
relationship involved the manufacturing, packaging,
and supply of Shimmer and the other involved the
manufacturing, packaging, and supply of Johnson’s
Baby Powder. 5 Plaintiffs argued Pharma Tech
4
Defendants did not challenge personal jurisdiction as to the
Missouri Plaintiffs in the trial court and do not challenge
personal jurisdiction as to the Missouri Plaintiffs on appeal.
5
The Non-Resident Plaintiffs initially argued Missouri had
specific jurisdiction over Defendants regarding their claims
because they joined an action with the Missouri Plaintiffs.
However, while this case was pending, that theory was rejected
by the United States Supreme Court in Bristol-Myers Squibb Co.
v. Superior Court, 137 S. Ct. 1773, 1781 (2017), which held each
individual out-of-state plaintiff in an action must demonstrate “a
connection between the forum and the specific claims at issue.”
5a
Industries engaged in manufacturing, packaging, and
supply activities relating to the Products in Missouri
“at . . . Defendants’ direction and under [their]
control.” Specifically, fifteen Non-Resident Plaintiffs
argued specific jurisdiction over Defendants on their
claims was proper because they used Shimmer, which
was manufactured, labeled, and packaged by Pharma
Tech Industries’ sister company, known as Pharma
Tech Union, in Union, Missouri, under Defendants’
direction and control. The remaining two Non-
Resident Plaintiffs argued specific jurisdiction over
Defendants on their claims was proper because they
used Johnson’s Baby Powder, which was
manufactured, labeled, and packaged by Pharma
Tech Industries’ sister company, known as Pharma
Tech Royston, in Royston, Georgia, under Pharma
Tech Industries’ direction and control. In addition, all
Non-Resident Plaintiffs 6 argued Defendants were
subject to specific jurisdiction because Defendants’
marketing strategy for the Products was created, in
part, in St. Louis City, and marketing, advertising,
This Court has confirmed that, after Bristol-Myers, out-of-state

plaintiffs in talc cases cannot sue defendants in Missouri solely
by joining their causes of action with in-state plaintiffs. See
Estate of Fox v. Johnson & Johnson, 539 S.W.3d 48 (Mo. App.
E.D. 2017) and Ristesund v. Johnson & Johnson, 558 S.W.3d 77
(Mo. App. E.D. 2018).
6
The two Non-Resident Plaintiffs who testified they did not
use Shimmer and only used Johnson’s Baby Powder are Annette
Koman and Marcia Owens. A Suggestion of Death and Motion
for Substitution was filed on Annette Koman’s behalf during the
pendency of this appeal. Allan Koman, her surviving husband
and the administrator of her estate, was substituted in her place.
6a
distribution, and sale of the Products took place in
Missouri.7
The trial court denied Defendants’ motion to dismiss
and held that specific jurisdiction existed over
Defendants on the Non-Resident Plaintiffs’ claims.
The trial court found Defendants’ alleged conduct
satisfied Missouri’s long-arm statute because
Defendants transacted business in Missouri, allegedly
committed tortious conduct in Missouri, owned real
estate in Missouri, and contracted with Missouri-
based Pharma Tech Industries to manufacture
packaging materials. The trial court further found
Defendants contracted with Missouri-based Pharma
Tech Industries to manufacture, label, and package
the Products and Pharma Tech Industries’ relevant
actions were under the direction and control of
Defendants.
Although Defendants relied on Bristol-Myers Squibb
Co. v. Superior Court of California, 137 S. Ct. 1773
(2017) to argue they were not subject to specific
7
The Non-Resident Plaintiffs also argued the following acts
served as bases for personal jurisdiction: Defendants interviewed
adult women who used Johnson’s Baby Powder in St. Louis,
Missouri; Defendants tested the sale of their Products on an
endcap at a K-Mart store in St. Louis, Missouri; Defendants
entered agreements with an organization based in St. Louis,
Missouri to sell Johnson’s Baby Powder to hospitals and health
agencies across the nation; Defendants contributed to Missouri
political candidates; and Defendants coordinated with the U.S.
Chamber Institute for Legal Reform to engage in lobbying efforts
in Missouri. Plaintiffs do not assert their claims arise out of or
relate to any of these alleged activities. Thus, these alleged
activities cannot serve as a basis for exercising personal
jurisdiction over Defendants. See Bristol-Myers, 137 S. Ct. at
1781.
7a
jurisdiction in Missouri, the trial court found Bristol-
Myers distinguishable. In Bristol-Myers, the United
States Supreme Court found the sale of a drug that
injured plaintiffs in California did not confer
jurisdiction over plaintiffs injured in other states
where the defendant “did not develop [the drug] in
California, did not create a marketing strategy for
[the drug] in California, and did not manufacture,
label, package, or work on the regulatory approval of
the product in California.” The trial court found
“Plaintiffs allege[d] that Defendants engaged in all of
these activities in Missouri except working on
regulatory approval.” The trial court found these
activities constituted sufficient minimum contacts to
subject Defendants to specific jurisdiction in Missouri
on the Non-Resident Plaintiffs’ claims.
Defendants also argued the trial court should sever
Plaintiffs’ claims because they had numerous
differences: e.g., all Plaintiffs were different ages
when they developed ovarian cancer, had different
medical histories, were from different states, and used
the Products at different ages and during different
time periods. Defendants argued these differences
precluded Plaintiffs’ claims from arising from the
same transaction or occurrence. The trial court
denied Defendants’ motion to sever, holding Plaintiffs’
claims against Defendants “ar[o]se out of the same
basic injuries, same defect, same alleged duty, and
same causes of action.” The trial court also found
“[t]he alleged events for which Plaintiffs s[ought]
damages ar[o]se out of the same common scheme or
design[;] . . . [we]re connected with a common core,
common purpose, or common event[;]” and had
common questions of law and fact.
8a
Plaintiffs proceeded to trial on May 31, 2018. After
hearing testimony from over thirty witnesses over six
weeks, the jury returned a verdict finding Defendants
liable on all claims. The jury awarded each individual
Plaintiff $25 million in compensatory damages,
totaling $550 million, with judgment entered jointly
and severally against Defendants. The jury awarded
$4.14 billion in punitive damages, with J&J
responsible for $3.15 billion and JJCI responsible for
$990 million. Defendants filed several post-judgment
motions, which were denied by the trial court.
Defendants now appeal. Additional facts will be
included below as we address Defendants’ ten points
of error.
Discussion
Point I: Denial of Defendants’ Motion to Sever
Defendants’ first point argues the trial court’s denial
of their motion to sever Plaintiffs’ claims was
erroneous because each Plaintiff “had her own set of
risk factors, diagnoses and health outcomes; . . . her
own distinct history of exposure to Powders sourced
from different mines around the globe; and . . . faced
different defenses, in many cases under the laws of
different states (12 in all).” They argue the trial
court’s denial of their motion to sever Plaintiffs’ claims
into separate and distinct trials prejudiced them
because the ruling allowed Plaintiffs to:
(1) evade their burden of providing that the
Powders caused each one’s cancer;
(2) obscure the weaknesses in each Plaintiff’s
individual case by presenting the jury with a
9a
confusing jumble of facts regarding the
separate claims of nearly two dozen Plaintiffs;
and
(3) blur important differences in the varying
laws and defenses applicable to each Plaintiff’s
claims.
Defendants argue the trial court was required, under
Rule 52.05(b), 8 to order separate trials and prevent
this alleged prejudice.
Standard of Review
“Appellate courts review the circuit court’s ruling on
a motion to sever for an abuse of discretion.” State ex
8
We note Defendants’ brief on appeal conflates the terms
“separate” and “sever.” Defendants’ motion below requested the
trial court “sever Plaintiffs’ claims into distinct and separate
actions.” (emphasis added). However, Defendants’ brief on
appeal relies on Rule 52.05(b), which allows the trial court to
“order separate trials or make other orders to prevent delay or
prejudice,” and requests that our Court “remand for new,
separate trials.” (emphasis added). “[D]esignating a claim for
separate trial is distinguishable from severance, despite these
terms being used interchangeably.” See State ex rel. Johnson &
Johnson v. Burlison, 567 S.W.3d 168, 178 (Mo. banc 2019)
(Draper, J., dissenting). “Rule 52.06 severance creates totally
separate claims to be pursued in independent actions and
resulting in completely separate judgments,” while “[s]eparate
trials . . . remain part of a single legal action with a single
judgment to be entered thereon.” Distefano v. Quigley, 230
S.W.3d 647, 648 (Mo. App. S.D. 2007) (citing STEVEN KATZ, 16
MISSOURI PRACTICE, CIVIL RULES PRACTICE § 66.02-2 (2d
ed. 1998)). Because Defendants’ motions before the trial court
were motions for severance, we will treat their claim on appeal
as one that the trial court erred in denying their requests to sever
Plaintiffs’ claims, not to order separate trials on Plaintiffs’
claims.
10a
rel. Johnson & Johnson v. Burlison, 567 S.W.3d 168,
178 (Mo. banc 2019) (Draper, J., dissenting) (citing
Bhagvandoss v. Beiersdorf, Inc., 723 S.W.2d 392, 395
(Mo. banc 1987)). An abuse of discretion only occurs
when the trial court’s ruling is “‘clearly against the
logic of the circumstances’ and ‘so arbitrary and
unreasonable as to shock the sense of justice and
indicate a lack of careful consideration.’” Stephenson
v. Countryside Townhomes, LLC, 437 S.W.3d 380, 389
(Mo. App. E.D. 2014) (quoting Mitchell v. Kardesch,
313 S.W.3d 667, 675 (Mo. banc 2010)). However, Rule
84.13(b) provides: “No appellate court shall reverse
any judgment unless it finds that error was committed
by the trial court against the appellant materially
affecting the merits of the action.” Therefore, “[e]ven
assuming the circuit court erred by . . . failing to sever
. . . claims, an error does not warrant reversal on
appeal unless the error results in prejudice.” Barron
v. Abbott Labs., Inc., 529 S.W.3d 795, 798 (Mo. banc
2017) (citations omitted).
Analysis
“Appellate review of claims of improper joinder and
failure to sever involves a two-step analysis.” State v.
Hood, 451 S.W.3d 758, 762 (Mo. App. E.D. 2014)
(citing State v. Chambers, 234 S.W.3d 501, 508 (Mo.
App. E.D. 2007)). “First, we must determine whether
joinder was proper as a matter of law.” Id. “If joinder
was proper, we must next determine whether the
court abused its discretion in denying the defendant’s
motion to sever.” Id. A challenge to only the trial
court’s decision not to sever claims “presupposes
proper joinder.” Id.
11a
Defendants’ first point does not challenge Plaintiffs’
claims were improperly joined. But joinder of
Plaintiffs’ claims was proper. “[T]he policy of the law
is to try all issues arising out of the same occurrence
or series of occurrences together.” Bryan v. Peppers,
175 S.W.3d 714, 719 (Mo. App. S.D. 2005) (internal
quotations and citations omitted). Missouri courts
have adopted a “broad policy favoring permissive
joinder.” State ex rel. Allen v. Barker, 581 S.W.2d 818,
827 (Mo. banc 1979). Missouri Supreme Court Rule
52.05(a) 9 permits multiple plaintiffs to join their
claims in a single petition “if they assert any right to
relief jointly, severally, or in the alternative in respect
of or arising out of the same transaction, occurrence
or series of transactions or occurrences and if any
question of law or fact common to all of them will arise
in the action.” All that is necessary to be properly
joined under Missouri law is the claims be “factually
and legally interrelated”; “the plaintiffs’ claims need
not be identical to one another.” McGuire v. Kenoma,
LLC, 375 S.W.3d 157, 189 (Mo. App. W.D. 2012)
(alteration in original) (footnote omitted).
Certainly, Plaintiffs’ claims are not identical. As
Defendants’ brief describes, they have a host of
differentiating characteristics. These differences
include their genetic dispositions, family histories,
previous diagnoses, ages when they developed ovarian
cancer, types of ovarian cancer, and durations and
9
“Missouri’s Rule 52.05(a) is substantially the same as Federal
Rule 20(a), and, when ‘the Missouri and federal rules are
essentially the same, federal precedents constitute persuasive,
although not binding, authority.’” Burlison, 567 S.W.3d at 189
n.4 (quoting Hemme v. Bharti, 183 S.W.3d 593, 597 (Mo. banc
2006)) (Wilson, J., dissenting).
12a
frequencies of talc use. However, the existence of facts
unique to each plaintiff does not preclude joinder. See
Simmons v. Skechers USA, Inc., No. 4:15-CV-340-
CEJ, 2015 WL 1604859, at *4 (E.D. Mo. Apr. 9, 2015)
(“The presence of some unique factual circumstances
in each of plaintiffs’ claims . . . does not undercut the
propriety of joinder.”). If it did, joinder “would be
precluded in almost any circumstance.” McClellan v.
I-Flow Corp., Nos. 07-1309-AA, 07-1318-AA, 08-478-
AA, 2010 WL 11595942, at *3 (D. Or. July 23, 2010).
Despite Plaintiffs’ differentiating characteristics,
Plaintiffs’ claims against Defendants arose out of the
same occurrence: each Plaintiff used Defendants’
Products. Their Petition alleged they each developed
ovarian cancer because of Defendants’ wrongful
conduct in manufacturing, marketing, testing,
promoting, selling, and distributing the Products.
Plaintiffs also asserted the same causes of action
against Defendants with the same relevant evidence
at issue in all claims. The evidence adduced at trial
involved common issues regarding whether talc or
asbestos cause cancer, whether the Products
contained asbestos, Defendants’ testing methodology,
whether Defendants knew the Products contained
asbestos, and whether Defendants disseminated
misleading information regarding the risks of the
Products.
Disposal of Plaintiffs’ claims in a single trial would
save both the parties and the court money, time, and
resources. See State ex rel. Blond v. Stubbs, 485
S.W.2d 152, 157-58 (Mo. App. 1972); see also
McClellan, 2010 WL 11595942, at *3 (quoting In re
Montor Corp. Obtape Transobturator Sling Prods.
Liab. Litig., 2010 WL 797273, at *4 (M.D. Ga. Mar. 3,
13a
2010)) (holding joinder is appropriate where it would
allow parties “to obtain results from multiple claims
without burdening the [trial c]ourt or parties with the
substantial cost of multiple separate trials.”). Under
the circumstances, the trial court could, in its
discretion, order joinder of Plaintiffs’ claims under
Rule 52.05(a).
Having found joinder was proper under Rule
52.05(a), we must next evaluate whether the trial
court abused its discretion when it denied Defendants’
request that Plaintiffs’ claims be severed. Rule 52.06
states, “Any claim against a party may be severed and
proceeded with separately.” In deciding whether to
sever claims under Rule 52.06, the trial court should
consider the “practical difficulties” involved in
proceeding with one trial when there are multiple
issues, plaintiffs, or defendants. See Stubbs, 485
S.W.2d at 157 (footnote omitted). The trial court
should also consider convenience, the avoidance of
prejudice, judicial economy, and the conflicting
interests of the parties. See Bryan, 175 S.W.3d at 720-
21 (citing Shady Valley Park & Pool, Inc. v. Fred
Weber, Inc., 913 S.W.2d 28, 36 (Mo. App. E.D. 1995)).
“Th[e]se considerations can and should be taken into
account under the authority conferred upon the trial
court under Rule 66.02, which authorizes the granting
of separate trials of any claim or of any separate issue
‘in the furtherance of convenience or to avoid
prejudice.’” Stubbs, 485 S.W.2d at 157.
Defendants make no arguments regarding
convenience or judicial economy and undertake no
effort to weigh their interests against those of
Plaintiffs. Instead, they advance several arguments
they were prejudiced by the trial court’s denial of their
14a
motion for severance. None of their arguments
persuade us the trial court’s decision not to sever
Plaintiffs’ claims was an abuse of discretion.
First, Defendants speculate the jurors were “lost in
a jumble of evidence.” Defendants argue Plaintiffs’
similar awards of $25 million in compensatory
damages prove the jury’s confusion and failure to
“consider any individual plaintiff’s claim[ ] on its own
merits.” Defendants’ claim of prejudice in this regard
suffers a fatal flaw: it “amounts to nothing more than
an unfounded speculation that the jurors disregarded
clear instructions of the court in arriving at their
verdict.” Opper v. United States, 348 U.S. 84, 95
(1954). We must presume the jury followed the trial
court’s instruction in reaching its verdict. Dieser v. St.
Anthony’s Med. Ctr., 498 S.W.3d 419, 435 (Mo. banc
2016). Here, the trial court instructed the jury to
consider each Plaintiff’s claim on its own merits. The
trial court also, in over 140 pages of trial transcript,
read the jury instructions for each individual Plaintiff
to the jury.
Further, “[I]dentical damages awards, without
more, simply are not sufficient evidence of juror
confusion.” Eghnayem v. Boston Sci. Corp., 873 F.3d
1304, 1315 (11th Cir. 2017). The reasoning behind a
jury’s verdict is not “open to inquiry or impeachment
for faulty logic, misconceived evidence or mistaken
calculations. These remain matters which ‘rest alone
in the juror’s breast.’” See Elam v. Alcolac, Inc., 765
S.W.2d 42, 221 (Mo. App. W.D. 1988) (internal
quotations omitted). Defendants identify no direct
source of the jury’s alleged confusion and instead
effectively “worked backwards, speculating as to the
reason for the compensatory awards based on the end
15a
result.” See Eghnayem, 873 F.3d at 1315 (alteration
omitted). Where plaintiffs suffer similar injuries
caused by the same product, a jury may reasonably
find they are entitled to similar relief. Id. Because
speculation does not support a finding that any error
committed “materially affect[ed] the merits of the
action” as required to support reversal under Rule
84.13(b), Defendants’ argument they were prejudiced
because the jury allegedly failed to consider any
individual plaintiff’s claims on its own merits is
insufficient. See Nachtweih v. Maravilla, 861 S.W.2d
164, 169 (Mo. App. E.D. 1993) (holding reversal on the
basis that an error “materially affect[ed] the merits of
the action” under Rule 84.13 cannot be based on
speculation).
Second, Defendants argue joinder “permitted
[P]laintiffs to evade their causation burden.”
Defendants argue Plaintiffs’ risk factors were
“significantly different” and joinder “confused and
obscured” those differences, leading the jury to
“assum[e] that the Powders must have been the
common factor that caused all of [P]laintiffs’
diseases.” Defendants essentially argue severance
was required because each Plaintiff’s proof of specific
causation was different. However, differences in
causation are generally not enough, standing alone, to
bar joinder of products liability claims. See
Eghnayem, 873 F.3d at 1314. Any danger of prejudice
arising from joinder despite differences in Plaintiffs’
proof of causation was reduced in this case because
the trial court instructed the jury, in separate verdict
directors, they must find Defendants’ Products
directly caused or directly contributed to cause each
individual Plaintiff’s injury. And Plaintiffs presented
16a
evidence of specific causation for each individual
Plaintiff through their expert, Dr. Felsher. In his
differential diagnosis, Dr. Felsher considered and
compared the unique risk factors of each individual
Plaintiff in detail. He meticulously told the jury about
each individual Plaintiff’s personal history, opined
about which aspects of her history made her more or
less at risk for developing ovarian cancer, and
concluded talc exposure directly caused or directly
contributed to cause her ovarian cancer. The trial
court’s instructions, and Plaintiffs’ presentation of Dr.
Felsher’s expert testimony, prove joinder did not
permit Plaintiffs to “evade [their] causation burden,”
as Defendants argue.
Third, Defendants argue joinder allowed evidence
into trial individually inadmissible for some plaintiffs.
For example, Defendants complain Plaintiffs were
exposed to the Products in different time periods, but
joinder allowed the jury to consider the alleged
presence of asbestos in talc over several decades
dating “as far back as 1960” where different mines
were used to supply talc for the Products. Defendants
argue evidence of alleged asbestos in talc from years
other than those years an individual Plaintiff used the
Products would have been inadmissible if Plaintiffs’
cases were tried separately. Defendants also
complain the jury heard evidence of “the emotional
impact of 22 different [P]laintiffs’ stories.” They argue
evidence of other women’s experience with cancer
would have been inadmissible if Plaintiffs’ cases were
tried separately.
We note initially Defendants failed to advance this
argument in their motion for severance at the trial
17a
court level or in their motion for new trial.10 “An issue
is not properly preserved for appeal when the
appellant fails to argue at trial the grounds asserted
upon appeal.” State v. Lewis, 243 S.W.3d 523, 524
(Mo. App. W.D. 2008) (citing State v. Tisius, 92 S.W.3d
751, 767 (Mo. banc 2002)). Because “[a]n appellant
cannot broaden or change allegations of error on
appeal,” Defendants’ argument that severance was
warranted because, without it, some evidence was
admitted into trial that would have been inadmissible
for some Plaintiffs was not properly preserved. Id.
Even if their argument could be considered, it would
fail. Plaintiffs could have submitted evidence of other
women with similar injuries to show the dangerous
nature of Defendants’ Products in individual trials.
The Missouri Supreme Court has held sufficiently
similar misconduct, regardless of when it occurred, is
relevant in assessing reprehensibility. See Lewellen
v. Franklin, 441 S.W.3d 136, 147 (Mo. banc 2014).
Therefore, evidence that other women were injured by
Defendants alleged negligence in manufacturing,
packaging, and labeling the Products, despite
knowing the Products contained asbestos, may have
been admissible to prove Plaintiffs’ claims even if
their claims were tried individually.
Last, Defendants argue joinder “blurred distinctions
in the law and defenses applicable to each [P]laintiff’s
10
We also note Defendants failed to request limiting
instructions for any evidence they believed would be relevant to
one Plaintiffs’ claim and not the others. “[W]hen evidence is
relevant for some purposes and not others, limiting
instructions—not exclusion—are generally the best way to
handle the issue.” Eghnayem v. Boston Sci. Corp., 873 F.3d 1304,
1316-17 (11th Cir. 2017).
18a
claim.” However, the trial court told the jury the
verdict directors for the Non-Resident Plaintiffs’
claims would instruct on the laws from their
respective states, while the verdict directors for the
Missouri Plaintiffs’ claims would instruct on Missouri
law. And the trial court read the instructions for each
individual Plaintiff, which included these differences
in the law, to the jury in over 140 pages of trial
transcript. Because we presume the jury followed the
trial court’s instruction in reaching its verdict, we are
not persuaded differences in the law applicable to
each Plaintiff’s claims rendered the trial court’s
decision not to sever Plaintiffs’ claims an abuse of
discretion. Dieser, 498 S.W.3d at 435.
Each of Defendants’ arguments ask our Court to
make assumptions about how the jury reached their
verdict in determining whether the trial court abused
its discretion by dismissing their motion to sever
Plaintiffs’ claims. However, our standard of review
does not permit such assumptions to be made. We are
compelled to consider only whether the trial court’s
“ruling is ‘clearly against the logic of the
circumstances’ and ‘so arbitrary and unreasonable as
to shock the sense of justice and indicate a lack of
careful consideration.’” Stephenson, 437 S.W.3d at
389 (quoting Mitchell, 313 S.W.3d at 675).
Although there are obvious differences among
Plaintiffs’ claims, those claims arose out of a series of
occurrences (i.e., using the Products) and at least one
common question of law or fact will arise in resolving
those claims (e.g., whether Defendants negligently
manufactured and produced the Products, whether
their testing was deficient, or whether their warnings
were inadequate). Any dangers of prejudice arising
19a
from joinder were adequately addressed by the trial
court’s instructions to the jury to consider each
Plaintiff’s claim separately. The trial court’s ruling
was neither against the logic of the circumstances nor
so arbitrary and unreasonable as to indicate a lack of
careful consideration. Accordingly, joinder of
Plaintiffs’ claims was proper and the trial court’s
decision to deny Defendants’ motion to sever was not
an abuse of discretion.
Point I is denied.
Point II: Plaintiffs’ Counsel’s Statement on Causation
During Closing Argument
Defendants’ second point argues the trial court erred
by overruling their objection to Plaintiffs’ counsel’s
statement that “but for” causation was “made up”
during closing argument. Defendants argue Missouri
law requires proof the Products were the “but for”
cause of each Plaintiff’s injuries. They argue
Plaintiffs’ counsel’s statement that “but for” causation
was “made up” was a misstatement of the law, which
the trial court had a duty to correct. In Defendants’
view, the trial court’s failure to do so requires
reversal.
Standard of Review
We review the trial court’s decision to overrule an
objection to a portion of a closing argument for abuse
of discretion. Minze v. Mo. Dep’t of Public Safety, 541
S.W.3d 575, 581 (Mo. App. W.D. 2017). “An abuse of
discretion occurs when a defendant is prejudiced such
that ‘there is a reasonable probability that the
outcome at trial would have been different if the error
had not been committed.’” State v. Holmsley, 554
20a
S.W.3d 406, 410 (Mo. banc 2018) (quoting State v.
Deck, 303 S.W.3d 527, 540 (Mo. banc 2010)).
Analysis
“Trial courts have wide discretion in controlling
closing arguments.” State v. Banks, 215 S.W.3d 118,
121 (Mo. banc 2007) (quoting State v. Hahn, 37 S.W.3d
344, 356 (Mo. App. W.D. 2000)). “Courts accord
counsel wide latitude in arguing the facts and in
drawing inferences from the evidence, and the law
indulges a liberal attitude toward argument,
particularly where the comment complained of is fair
retort or responds to prior argument of opposing
counsel.” Kelly by Kelly v. Jackson, 798 S.W.2d 699,
704 (Mo. banc 1990) (citing Lewis v. Bucyrus-Erie, 622
S.W.2d 920, 925 (Mo. banc 1981)).
However, “misstatements of the law are
impermissible during closing argument, and a
positive and absolute duty . . . rests upon the trial
judge to restrain such arguments.” Estate of Overbey
by Overbey v. Franklin, 558 S.W.3d 564, 573 n.10 (Mo.
App. W.D. 2018) (alterations omitted). A trial court
abuses its discretion in controlling closing argument
“when [it] allow[s] plainly unwarranted and injurious
arguments.” Banks, 215 S.W.3d at 121 (quoting
Hahn, 37 S.W.3d at 356). In ruling on the propriety
of argument, the challenged comment “must be
interpreted in light of the entire record rather than in
isolation.” Dieser, 498 S.W.3d at 439 (quoting State ex
rel. Kelly v. Jackson, 798 S.W.2d 699, 704 (Mo. banc
1990)).
As Plaintiffs concede in their brief, “the but for
causation test is applicable to nearly all tort cases in
21a
Missouri.” Thomas v. McKeever’s Enters. Inc., 388
S.W.3d 206, 212 (Mo. App. W.D. 2012), overruled on
other grounds by S.B. No. 43, 99th Gen. Assemb., Reg.
Sess. (Mo. 2017). “The ‘but for’ causation test provides
that ‘the defendant’s conduct is a cause’ of the event if
the event would not have occurred ‘but for’ that
conduct. Put simply, ‘but for’ causation tests for
causation in fact.” Callahan v. Cardinal Glennon
Hosp., 863 S.W.2d 852, 860-61 (Mo. banc 1993)
(emphasis added) (internal quotation and citation
omitted). “‘But for’ is an absolute minimum for
causation . . . . [It] dictates that there be some causal
relationship between the defendant’s conduct and the
injury or event for which damages are sought.” Id. at
862. Importantly, the “but for” standard does not
require the defendant’s conduct to be the sole or
exclusive cause of the injury. Wagner v. Bondex Int’l,
Inc., 368 S.W.3d 340, 350-51 (Mo. App. W.D. 2012).
However, “Missouri courts have stated that terms
such as ‘but for causation’ are not to be used when
instructing the jury.” Thomas, 388 S.W.3d at 216.
This is “because but for is a test of submissibility, a
way of viewing the sufficiency of the evidence, rather
than an ultimate finding to be made by the trier of
fact.” Id. at 212. Therefore, “instructing the jury by
use of such terms creates the potential for juror
confusion.” Id. at 216. Missouri Approved
Instructions (“MAI”) instead instructs the jury using
the terms “directly cause” or “directly contribute to
cause” without mentioning the phrase “but for
causation.” Callahan, 863 S.W.2d at 863 (citing MAI
19.01 [1986 Revision] Verdict Directing
Modification—Multiple Causes of Damage).
22a
During closing argument, Defendants’ counsel
argued that, to find for Plaintiffs, the jury “must rule
out alternative causes” and be able to “say to
[themselves] if [Plaintiffs] never used Johnson &
Johnson’s Baby powder would things be different?
. . . . That’s the question. That’s what this but for
thing means.” During rebuttal closing argument,
Plaintiffs’ counsel argued to the jury the phrase “but
for” would not appear in the trial court’s jury
instructions and “but for causation” was “made up.”
Although Plaintiffs’ counsel’s use of the phrase “made
up” to describe “but for causation” lacked eloquence, it
was made in response to Defendants’ counsel’s prior
argument suggesting Plaintiffs needed to prove the
Products were the sole cause of their injuries. It was
within the trial court’s wide discretion to allow
Plaintiffs’ counsel to make such a comment. See
Jackson, 798 S.W.2d at 704.
Further, according to the MAI, the jury did not have
to find that “but for” Defendants’ Products, Plaintiffs
would not have been injured. Under the MAI, the jury
must find Defendants “directly cause[d]” or “directly
contribute[d] to cause” Plaintiffs’ injuries. Therefore,
Plaintiffs’ counsel’s comment during closing argument
tracked the trial court’s causation instruction.
Peterson v. Progressive Contractors, Inc., 399 S.W.3d
850, 857 (Mo. App. W.D. 2013) (citing Heshion Motors,
Inc. v. W. Int’l Hotels, 600 S.W.2d 526, 534 (Mo. App.
W.D. 1980)) (“If a complained of argument during
closing is within the purview of a matter to be
determined by the jury as it has been instructed, the
argument is not a misstatement of the law.”).
Even if Plaintiffs’ counsel misstated the law, “as long
as the trial court properly instructs the jury, we will
23a
rarely find reversible error.” Minze, 541 S.W.3d at
583 (citing Peterson, 399 S.W.3d at 861). Defendants
do not argue the jury was not provided with the proper
law regarding causation. The jury was instructed it
must find Defendants’ Products “directly caused or
directly contributed to cause” Plaintiffs’ injuries to
return a verdict for Plaintiffs. The trial court read the
instructions to the jury, and the written instructions
were available to the jury during deliberations. “The
jury is bound to follow the trial court’s instructions[,]
and we presume that it will even to the extent that
doing so might require the jury to ignore specific
argument of counsel in conflict.” Id. (alteration in
original) (citing Peterson, 399 S.W.3d at 861).
Given the entire record, Plaintiffs’ counsel’s
comments were not plainly unwarranted and did not
prejudice Defendants. Accordingly, we find the trial
court did not abuse its discretion in overruling
Defendants’ objection to Plaintiffs’ counsel’s closing
argument.
Point II is denied.
Point III: Personal Jurisdiction
In their third point, Defendants argue the trial court
erroneously determined they were subject to personal
jurisdiction in Missouri on the Non-Resident
Plaintiffs’ claims.
Standard of Review
“[W]hen the issue is whether Missouri courts have
personal jurisdiction over a defendant, a reviewing
court defers to the fact-finding court with regard to
any facts that are essential to that determination.”
24a
Pearson v. Koster, 367 S.W.3d 36, 44 (Mo. banc 2012).
“[H]owever, the ultimate question of whether the
exercise of jurisdiction meets the standards of the
Missouri long-arm statute and the constitution
remains a legal question, which is reviewed
independently on appeal.” Id. “When personal
jurisdiction is contested, it is the plaintiff who must
shoulder the burden of establishing the defendant’s
contacts with the forum state were sufficient.” Bryant
v. Smith Interior Design Grp., Inc., 310 S.W.3d 227,
231 (Mo. banc 2010) (internal quotations omitted).
When presented with a motion to dismiss for lack of
personal jurisdiction, “[a] court must consider
whether the allegations in the petition, if taken as
true, establish facts adequate to invoke personal
jurisdiction.” Fulton v. The Bunker Extreme, Inc., 343
S.W.3d 9, 12 (Mo. App. S.D. 2011) (citing Bryant, 310
S.W.3d at 230-31). “The allegations of the petition are
given an intendment most favorable to the existence
of the jurisdictional fact.” Good World Deals, LLC. v.
Gallagher, 554 S.W.3d 905, 910 (Mo. App. W.D. 2018)
(quoting Moore v. Christian Fid. Life Ins. Co., 687
S.W.2d 210, 211 (Mo. App. W.D. 1984)). In addition to
the allegations in the petition, a trial court may also
consider “affidavits, oral testimony, and deposition
testimony.” Longshore v. Norville, 93 S.W.3d 746, 751
(Mo. App. E.D. 2002). “The trial court has discretion
to believe or disbelieve evidence submitted when
deciding the question of personal jurisdiction.
However, when determining the issue of personal
jurisdiction, the court cannot consider the merits of
the underlying action.” Id.
25a
Analysis
Our evaluation of personal jurisdiction involves a
“two-step analysis.” Getz v. TM Salinas, Inc., 412
S.W.3d 441, 447 (Mo. App. W.D. 2013) (citing Bryant,
310 S.W.3d at 231). First, we must “determine
whether the defendant’s conduct satisfies Missouri’s
long-arm statute, Section 506.500, RSMo 2000.” Id.
“If it does, then we next determine whether the
defendant has sufficient minimum contacts with
Missouri such that asserting personal jurisdiction
over the defendant comports with due process.” Id.
(internal quotations omitted). Due process prohibits
courts from exercising personal jurisdiction over a
defendant where doing so would offend “traditional
notions of fair play and substantial justice.” Bryant,
310 S.W.3d at 232 (quoting Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L.
Ed. 95 (1945)). Here, the trial court found the long-
arm statute extends to Defendants, and Defendants
do not challenge this finding. Therefore, the sole issue
in this appeal is whether the Plaintiffs’ Petition sets
forth sufficient minimum contacts between
Defendants and Missouri to allow the court to exercise
personal jurisdiction over them on the Non-Resident
“Courts recognize two categories of personal
jurisdiction: general and specific.” Ristesund v.
Johnson & Johnson, 558 S.W.3d 77, 80 (Mo. App. E.D.
2018) (citing Goodyear Dunlop Tires Operations, S.A.
v. Brown, 654 U.S. 915, 923-24, 131 S. Ct. 2846, 180
L.Ed.2d 796 (2011)). No Plaintiff asserts the trial
court has general personal jurisdiction over
26a
Defendants; 11 they argue only that Missouri has
specific jurisdiction over Defendants on all their
claims. A court may assert specific personal
jurisdiction over a defendant “if certain minimum
contacts between Missouri and the defendant are
established.” Getz, 412 S.W.3d at 448 (footnote
omitted) (quoting Bryant, 310 S.W.3d at 232). These
factors are “of primary importance” when determining
whether a non-resident defendant has sufficient
minimum contacts for a Missouri court to have
personal jurisdiction: “(1) the nature and the quality
of the contact; (2) the quantity of the contacts; [and]
(3) the relationship of the cause of action to the
contacts.” Weicht v. Suburban Newspapers of Greater
St. Louis, Inc., 32 S.W.3d 592, 601 (Mo. App. E.D.
2000) (citing Schilling v. Human Support Servs., 978
S.W.2d 368, 371 (Mo. App. E.D. 1998)). It is “of
secondary importance” for the court to consider
Missouri’s interest in providing a forum for its
residents and the convenience or inconvenience to the
parties. Id.
“When evaluating minimum contacts, the focus is on
whether ‘there be some act by which the defendant
purposefully avails itself of the privilege of conducting
activities within the forum state, thus invoking the
benefits and protections of its laws.” Getz, 412 S.W.3d
11
“A court normally can exercise general jurisdiction over a
corporation only when the corporation’s place of incorporation or
its principal place of business is in the forum state.” State ex rel.
Key Ins. Co. v. Roldan, 587 S.W.3d 638, 641 (Mo. banc 2019)
(footnote omitted) (quoting State ex rel. Norfolk S. Ry. Co. v.
Dolan, 512 S.W.3d 41, 45 (Mo. banc 2017)). Here, it is
undisputed Defendants are both incorporated and
headquartered in New Jersey.
27a
at 448 (quoting Bryant, 310 S.W.3d at 232). “It is
essential that the defendant’s conduct and connection
with the forum State are such that he should
reasonably anticipate being haled into court there.”
Id. (quoting Bryant, 310 S.W.3d at 236). If sufficient
minimum contacts are established, we must also
determine “whether jurisdiction over the defendant
would comply with traditional notions of fair play and
substantial justice” by considering: “(1) the burden on
the defendant; (2) the interest of the forum state; (3)
the plaintiff’s interest in obtaining relief; (4) the
interstate judicial system’s interest in obtaining the
most efficient resolution of controversies; and (5) the
shared interest of the several states in furthering the
fundamental substantive social policies.” Weicht, 32
S.W.3d at 601 (citing Schilling, 978 S.W.2d at 371).
The defendant’s minimum contacts with the forum
state must also be “adequate[ly] link[ed]” to the
plaintiffs’ claims. See Bristol-Myers, 137 S. Ct. at
1781. Thus, “the specific personal jurisdiction inquiry
must be conducted separately for the claims of each
individual plaintiff.” 12 Jinright v. Johnson &
12
Specific jurisdiction need not be established for each
individual product at issue within a claim in a litigation. See
Carson Optical, Inc. v. RQ Innovasion Inc., No. 16-CV-1157, 2020
WL 1516394, at *4 (E.D.N.Y. Mar. 30, 2020). Instead, specific
jurisdiction must be established for each claim asserted. See
Seiferth v. Helicopteros Atuneros, Inc., 472 F.3d 266, 275 n.6 (5th
Cir. 2006); see also 5B CHARLES ALAN WRIGHT & ARTHUR
R. MILLER, FEDERAL PRACTICE & PROCEDURE: CIVIL 3d
§ 1351, at 299 n.30 (2004) (“[I]f separate claims are pled, specific
personal jurisdiction must independently exist for each claim
and the existence of personal jurisdiction for one claim will not
provide the basis for another claim.”). The Petition does not
contain an individual claim for each purportedly dangerous
28a
Johnson, Inc., No. 4:17CV01849, 2017 WL 3731317, at
*3 (Mo. E.D. Aug. 30, 2017). Here, there are two
defendants: JJCI and J&J. There are twenty-two
plaintiffs in this litigation.
Defendants do not challenge their minimum
contacts with Missouri are insufficient as to the
claims of the five Missouri Plaintiffs. However,
personal jurisdiction over Defendants on the claims of
the Missouri Plaintiffs is proper because each of the
Missouri Plaintiffs bought the Products, used the
Products, developed ovarian cancer, and received
treatment for ovarian cancer in Missouri. We do not
disturb the trial court’s finding of personal
jurisdiction over Defendants as to the five Missouri
Plaintiffs who purchased and applied the Products in
Missouri and developed ovarian cancer in Missouri.
See Weicht, 32 S.W.3d at 602 (holding that where
appellants do not “specifically address the issue of
sufficient minimum contacts in their argument . . . [,]
appellate review . . . is precluded.”).
Product but, rather, asserts eight causes of action alleging

Defendants negligently manufactured a litany of Products, failed
to warn consumers of the dangers of those Products, and other
torts relating to the manufacture and sale of those Products. It
is enough that the Non-Resident Plaintiffs establish their claim
arises out of or relates to at least one the specific activities alleged
in in the Petition. See Marten v. Godwin, 499 F.3d 290, 296 (3d
Cir. 2007) (internal citations omitted) (holding specific
jurisdiction is proper where “‘the defendant . . . purposefully
directed his activities’ at the forum . . . and the plaintiff’s claim .
. . ‘arise[s] out of or relates to’ at least one of those specific
activities.”). Therefore, specific jurisdiction is proper so long as
any part of the Non-Resident Plaintiffs’ claims arises from out of
or relates to Defendants’ activities in Missouri.
29a
Defendants only challenge they are subject to
personal jurisdiction in Missouri on the claims of the
seventeen Non-Resident Plaintiffs. In their Petition,
each of the seventeen Non-Resident Plaintiffs claim
they purchased and applied the Products in their
home states and developed ovarian cancer in their
home states because of Defendants’ negligent conduct.
Specifically, fifteen Non-Resident Plaintiffs testified
they used Shimmer and Johnson’s Baby Powder. The
remaining two Non-Resident Plaintiffs denied they
used Shimmer and testified they only used Johnson’s
Baby Powder. Because there must be an “adequate
link” between Defendants’ activities in Missouri and
the Non-Resident Plaintiffs’ claims before imposing
specific jurisdiction over Defendants, our analysis is
guided by the specific claims asserted by the Non-
Resident Plaintiffs against both Defendants. See
Bristol-Myers, 137 S. Ct. at 1781.
Our specific jurisdiction analysis proceeds in two
parts. In the first part, we analyze whether JJCI is
subject to specific jurisdiction in Missouri on the Non-
Resident Plaintiffs’ claims. We discuss whether an
adequate link exists between: (1) the fifteen Non-
Resident Plaintiffs who testified they used Shimmer
and Johnson’s Baby Powder and JJCI’s activities in
Missouri and (2) the two Non-Resident Plaintiffs who
testified they did not use Shimmer and only used
Johnson’s Baby Powder and JJCI’s activities in
Missouri. We then analyze whether JJCI’s contacts
should be imputed to J&J on the Non-Resident
Plaintiffs’ claims by alter ego or agency principles in
the second part.
30a
Specific Jurisdiction Over JJCI on the Non-
Resident Plaintiffs’ Claims
JJCI argues the trial court erroneously exercised
specific jurisdiction over it in Missouri on the Non-
Resident Plaintiffs’ claims and improperly based its
ruling on Pharma Tech Industries’ conduct in
Missouri. JJCI argues the “bare fact” it contracted
with Pharma Tech Industries to manufacture, label,
and package Shimmer and Johnson’s Baby Powder is
not enough to establish specific jurisdiction over it in
Missouri. JJCI argues that, although it contracted
with Missouri-based Pharma Tech Industries and
Pharma Tech Union manufactured Shimmer in
Missouri, no “minimum contacts” exist that justify the
trial court’s exercise of specific jurisdiction over it in
Missouri on fifteen of the Non-Resident Plaintiffs’
claims. JJCI argues no minimum contacts exist that
justify the trial court’s exercise of specific jurisdiction
over it in Missouri on the remaining two Non-
Resident Plaintiffs’ claims because Johnson’s Baby
Powder was never manufactured in Missouri;
Johnson’s Baby Powder was solely manufactured,
labeled, and packaged by Pharma Tech Royston in
Georgia.13
13
In addition to these arguments, Defendants also argue the
trial court erroneously exercised specific jurisdiction over it
because Defendants marketing strategy for the Products was
partially created in St. Louis, Missouri, and marketing,
advertising, distribution, and sales activities took place in
Missouri. Although Plaintiffs argued in their Response in
Opposition to Defendants’ Renewed Motion to Dismiss 17 Non-
Missouri Plaintiffs’ Claims for Lack of Personal Jurisdiction
specific jurisdiction over Defendants may be exercised because of
their engagement in marketing research and operations
31a
Our decision of whether the trial court properly
exercised personal jurisdiction over JJCI in Missouri
is informed by the United States Supreme Court’s
decision in Bristol-Myers, 137 S. Ct. 1773. In Bristol-
Myers, over 600 plaintiffs, most of whom were not
California residents, sued Bristol-Myers Squibb Co.
(“BMS”) in California, alleging a drug manufactured
by BMS damaged their health. Id. at 1777-78. BMS
was incorporated in Delaware and headquartered in
New York. Id. The nonresident plaintiffs did not
allege they obtained the drug through California
physicians or from any other California source; nor
did they claim they were injured by the drug or
treated for their injuries in California. Id. at 1778.
BMS’ activities in California included: making
approximately one percent of its nationwide sales in
California; maintaining five research and laboratory
facilities in California; employing around 250 sales
representatives in California; and maintaining a
small state-government advocacy office in California.
Id. BMS also contracted with McKesson, a California
meetings for the Products in Missouri, Plaintiffs do not argue

this as a basis for specific jurisdiction on appeal. Regardless,
Defendants’ sales and marketing activities in Missouri do not
provide a sufficient basis to exercise personal jurisdiction over
Defendants in Missouri on the Non-Resident Plaintiffs’ claims.
None of the Non-Resident Plaintiffs alleged they were exposed to
or influenced by Defendants marketing in Missouri. Similarly,
none of the Non-Resident Plaintiffs alleged they saw or were
influenced by any marketing created in Missouri. Defendants’
sales and marketing of products in Missouri to resident Plaintiffs
is not forum-related conduct that is related to the claims being
asserted by the Non-Resident Plaintiffs. See In re Talc Prod.
Liab. Litig., No. N17C-03-054, 2018 WL 4340012, at *6 (Del.
Super. Ct. Sept. 10, 2018).
32a
company, to distribute the drug nationally. Id. at
1783.
The United States Supreme Court held there was no
specific jurisdiction over BMS in California on the
nonresident plaintiffs’ claims because their petition
alleged no “adequate link between the State and the
nonresidents’ claims.” Id. at 1781. The Court
emphasized: “the nonresidents were not prescribed
[the drug] in California, did not purchase [the drug] in
California, did not ingest [the drug] in California, and
were not injured by [the drug] in California.” Id. The
Court held “[t]he mere fact that other plaintiffs were
prescribed, obtained, and ingested [the drug] in
California—and allegedly sustained the same injuries
as did the nonresidents—does not allow [California] to
assert specific jurisdiction over the nonresidents’
claims.” Id. (alteration in original). In reaching its
conclusion, the Court found it significant that BMS
did not develop the drug in California; create a
marketing strategy for the drug in California; or
manufacture, label, package, or work on the
regulatory approval of the drug in California. Id. at
1778 (emphasis added). The Court also found “[t]he
bare fact that [BMS] contracted with a California
distributor” did not establish personal jurisdiction
over BMS in California because the nonresident
plaintiffs did not allege BMS “engaged in relevant acts
together with McKesson in California” or BMS was
“derivatively liable for McKesson’s conduct in
California.” Id. at 1783.
Fifteen Non-Resident Plaintiffs Claims
Using Bristol-Myers as our guide, we find the trial
court properly exercised specific jurisdiction over JJCI
33a
on the claims of the fifteen Non-Resident Plaintiffs
who testified they used Shimmer. While it is true
that, like the nonresident plaintiffs in Bristol-Myers,
the Non-Resident Plaintiffs here do not assert they
purchased, obtained, or used Shimmer in Missouri,
the Petition alleged, and the record reveals, JJCI
engaged in a host of significant activities in Missouri
related to the Non-Resident Plaintiffs’ use of
Shimmer. JJCI contracted with Missouri-based
Pharma Tech Industries to manufacture, package,
and label Shimmer. Pharma Tech Industries then
manufactured, packaged, and labeled Shimmer at its
Pharma Tech Union facility in Missouri according to
JJCI’s specifications. “[W]here the defendant
‘deliberately’ has engaged in significant activities
within a State, or has created ‘continuing obligations’
between [it]self and residents of the forum, [the
defendant] manifestly has availed [it]self of the
privilege of conducting business there.” Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 475-76 (1985).
Accordingly, JJCI’s activities relating to the
manufacture, packaging, and labeling of Shimmer in
Missouri make it reasonable to require it “to submit
to the burdens of litigation” in Missouri. See id.
JJCI argues that, like the defendant in Bristol-
Myers, the “bare fact” JJCI contracted with Missouri-
based Pharma Tech Industries and Pharma Tech
Union then manufactured Shimmer in Missouri does
not establish personal jurisdiction over JJCI in
Missouri. It argues Pharma Tech Union “merely
execute[d] JJCI’s specifications, which were all
created and issued in New Jersey.” JJCI’s reliance on
Bristol-Myers is misplaced. The Court in Bristol-
Myers concluded “[t]he bare fact that [BMS]
34a
contracted with a California distributor” did not
establish personal jurisdiction in California because
the nonresident plaintiffs did not allege BMS
“engaged in relevant acts together with McKesson in
California” or was “derivatively liable for McKesson’s
conduct in California” and there was no evidence the
drug was manufactured, labeled, or packaged in
California. Id. Here, the parties concede Shimmer
was manufactured, labeled, and packaged according
to JJCI’s specifications in Missouri. Unlike in Bristol-
Myers, specific jurisdiction over JJCI is proper
because it is based on something more than a mere
contractual relationship with a third party.
JJCI also relies on In re Talc Products Liability
Litigation, No. N17C-03-054, 2018 WL 4340012 (Del.
Super. Ct. Sept. 10, 2018) to argue its manufacturing
contract with Pharma Tech Industries is insufficient
to confer personal jurisdiction over it on the Non-
Resident Plaintiffs’ claims of Shimmer use in
Missouri. However, its reliance on In re Talc Products
Liability Litigation is also misplaced. In In re Talc
Product Liability Litigation, the Delaware Superior
Court held the fact J&J sent its talc to a company in
Delaware for testing was not enough to establish
personal jurisdiction over J&J in Delaware over
nonresident plaintiffs’ claims that J&J engaged in the
“continued production, packaging, marketing, and
sale of talc knowing that it was harmful to women.”
Id. at *8. The court found no adequate link existed
between J&J’s activity of sending its talc to be tested
in Delaware and the nonresident plaintiffs’ claims, as
the nonresident plaintiffs did not allege J&J’s testing
of talc in Delaware was “a link in the production chain
of talc’s eventual sale to the public.” Id. The court
35a
found “the fact . . . the situs of the analysis was a lab
in Delaware is at best happenstance; it could have
been a lab anywhere, and it was not the sort of
purposeful availment of the privilege of conducting
business in a state that would lead [J&J] to
‘reasonably anticipate being hauled into court there.’”
Id. (footnote omitted).
Here, in contrast, JJCI’s contract with Pharma Tech
Industries was to manufacture, package, and label
Shimmer—and Pharma Tech Union did manufacture,
package, and label Shimmer in Missouri. The Non-
Resident Plaintiffs’ claims alleged JJCI negligently
manufactured, produced, packaged, and labeled
Shimmer. JJCI’s activities with Pharma Tech
Industries and Pharma Tech Union represent a direct
link in the production chain of Shimmer’s eventual
sale to the public. JJCI’s activities with Pharma Tech
Industries firmly connect JJCI’s activities in Missouri
to the specific claims of the Non-Resident Plaintiffs
and thus provide an adequate basis to exercise specific
jurisdiction over JJCI.
To the extent JJCI challenges specific jurisdiction
over it was erroneous because some of the fifteen Non-
Resident Plaintiffs had “questionable recollections” of
using Shimmer, its argument also fails. Under our
standard of review, we must “defer[ ] to the fact-
finding court with regard to any facts that are
essential” to determining whether personal
jurisdiction exists. Pearson, 367 S.W.3d at 44. In
ruling on Defendants’ motion to dismiss for lack of
personal jurisdiction, the trial court examined the
pleadings and considered the sworn affidavits of all
Non-Resident Plaintiffs. It was within the trial
court’s discretion to believe the affidavits and
36a
testimony of the fifteen Non-Resident Plaintiffs they
used Shimmer. See Longshore, 93 S.W.3d at 754. We
must defer to the trial court’s fact-finding.
Because sufficient evidence in the record supports
that JJCI contracted with Missouri-based Pharma
Tech Industries to manufacture, package, and label
Shimmer and Shimmer was manufactured, packaged,
and labeled by Pharma Tech Union in Missouri, and
JJCI purposefully availed itself of the privilege of
conducting activities within Missouri to establish
minimum contacts with the State to satisfy due
process, the trial court did not err in overruling
Defendants’ motion to dismiss for lack of personal
jurisdiction over JJCI on these fifteen Non-Resident
Two Non-Resident Plaintiffs’ Claims
We cannot, however, find the trial court properly
exercised specific jurisdiction over JJCI on the claims
of the two Non-Resident Plaintiffs who testified only
that they used Johnson’s Baby Powder. The Petition
did not sufficiently allege JJCI engaged in significant
activities in Missouri related to their use Johnson’s
Baby Powder.
Two of the Non-Resident Plaintiffs argue the trial
court had specific jurisdiction over JJCI on their
claims although they denied using Shimmer because
they testified they used Johnson’s Baby Powder. They
maintain JJCI is subject to specific jurisdiction in
Missouri because JJCI executed a Manufacturing and
Supply Agreement (“MSA”) with Missouri-based
Pharma Tech Industries to manufacture, package,
and label Johnson’s Baby Powder. Although Pharma
37a
Tech Industries assigned its manufacturing duties on
the closing date to Pharma Tech Royston, which is
headquartered in Delaware and has its principal place
of business in Georgia, the Non-Resident Plaintiffs
maintain JJCI is subject to specific jurisdiction in
Missouri because Pharma Tech Industries executed
two Continuing Unlimited Guaranty Agreements
(“Guaranties”) guaranteeing Pharma Tech Royston’s
performance of the production of Johnson’s Baby
Powder according to the MSA’s specifications at
JJCI’s request and for JJCI’s benefit. Beyond the
contractual relationships between JJCI and Pharma
Tech Industries, the Non-Resident Plaintiffs argue
specific jurisdiction over JJCI exists because their
Petition alleged Pharma Tech Industries “controlled
and directed the manufacturing, processing, bottling,
mislabeling, mispackaging, and distributing, without
any warnings, of the PRODUCTS at other
manufacturing facilities outside of Missouri,
including but not limited to its Royston, Georgia
manufacturing facility, from its Union, Missouri
headquarters.”
We find the two Non-Resident Plaintiffs have failed
to meet their burden to show specific jurisdiction over
JJCI exists on their claims. The record is devoid of
evidence that JJCI engaged in any activities related
to Johnson’s Baby Powder, beyond the executing of
the MSA and the Guaranties with a Missouri-based
corporation, in Missouri. United States Supreme
Court precedent is clear that contracting with an out-
of-state party alone cannot automatically establish
sufficient minimum contacts in the out-of-state
party’s home forum. See Burger King Corp., 471 U.S.
at 478 (alteration in original) (“If the question is
38a
whether an individual’s contract with an out-of-state
party alone can automatically establish sufficient
minimum contacts in the other party’s home forum,
we believe the answer clearly is that it cannot.”);
Bristol-Myers Squibb Co., 137 S. Ct. at 1783.
Plaintiffs’ Petition alleged that Pharma Tech
Industries controlled and oversaw Pharma Tech
Royston’s manufacture of Johnson’s Baby Powder
from Missouri. However, this allegation lacks support
in the record. When determining whether there is
personal jurisdiction over a defendant, the trial court
“must consider whether the allegations in the
petition, if taken as true, establish facts adequate to
invoke personal jurisdiction.” Fulton, 343 S.W.3d at
12. But “[t]he plaintiff’s prima facie showing [of
personal jurisdiction] must be tested, not by the
pleadings alone, but by the affidavits and exhibits
presented with the motions and oppositions thereto.”
Jinright, 2017 WL 3731317, at *1 (internal quotations
omitted). “Bare assertions of jurisdiction are
insufficient.” Yaeger v. Wyndham Vacation Resorts,
Inc., No. 4:14-cv-795-JCH, 2014 WL 3543426, at *3
(E.D. Mo. July 17, 2014).
After JJCI challenged the trial court’s personal
jurisdiction, the Plaintiffs had an obligation to provide
some factual support for the jurisdictional claims
made in their Petition and in their briefing on
Defendants’ motion to dismiss. They have not done so
regarding their assertion that Missouri-based
Pharma Tech Industries “oversaw, directed and
controlled the manufacturing facility in Royston,
Georgia.” Accordingly, we cannot conclude the trial
court properly exercised specific jurisdiction over JJCI
on claims of the two Non-Resident Plaintiffs’ who
39a
testified they did not use Shimmer and only used
Johnson’s Baby Powder.
Plaintiffs’ brief in opposition to Defendants’ motion
to dismiss asserted “it is clear that [JJCI] directed
Pharma Tech in Missouri to oversee and control the
[Johnson’s Baby Powder] operations” with no exhibit
or affidavit to support their argument. Plaintiffs cite
only the allegations in their own Petition to support
their contention that Pharma Tech Industries
oversaw and controlled Pharma Tech Royston from
Missouri. Plaintiffs also maintain Pharma Tech
Industries’ website and promotional videos generally
refer to Pharma Tech Royston solely as “Pharma
Tech” without distinction from Pharma Tech Union or
Pharma Tech Industries, so Pharma Tech Industries
must have directed and controlled Pharma Tech
Royston. But “[a] corporation is . . . generally not
liable for the acts of its sister corporation absent a
showing that the sister corporation was an alter ego
or acted as an agent.” Douglas v. Imerys Talc Am.,
Inc., No. 4:18CV1141, 2019 WL 626427, at *7 (quoting
Weston v. Progressive Comm. Holdings, Inc., No. 10-
980, 2011 WL 231709, at *2-3 (D. Del. Jan. 24, 2011)).
Showing two “companies are somehow affiliated with
one another is not sufficient” to demonstrate one
company should be liable for the other’s acts. Id.
In addition, Plaintiffs argue Pharma Tech
Industries must have overseen and controlled Pharma
Tech Royston’s manufacture of Johnson’s Baby
Powder because, “[o]n at least two occasions, Pharma
Tech in Missouri shipped samples of talc and
tricalcium phosphate intended for use in the Products
to labs ‘to be tested per [J&J] micro protocol” and
“[t]he testing documents identify two Union, Missouri
40a
addresses for Pharma Tech.” However, Plaintiffs do
not provide support in the record for how the act of
Pharma Tech Industries shipping samples of talc for
testing to “labs” establishes Pharma Tech Industries
specifically oversaw and controlled Pharma Tech
Royston’s manufacture of Johnson’s Baby Powder
from Missouri.
Plaintiffs concede neither Pharma Tech Industries
nor Pharma Tech Union manufactured, packaged, or
labeled Johnson’s Baby Powder and Pharma Tech
Royston was the sole manufacturer, packager, and
labeler of Johnson’s Baby Powder.14 And the record is
devoid of evidence Pharma Tech Industries or Pharma
Tech Union directed and controlled Pharma Tech
Royston’s manufacture of Johnson’s Baby Powder in
Georgia. Plaintiffs did not allege JJCI engaged in acts
with Pharma Tech Industries or Pharma Tech Union
in Missouri, beyond JJCI’s execution of the MSA with
a Missouri-based corporation, that were related to
Johnson’s Baby Powder. Thus, there is insufficient
evidence in the record to support JJCI purposefully
availed itself of the privilege of conducting activities
in Missouri to establish minimum contacts with the
State to satisfy due process. The trial court erred in
overruling Defendants’ motion to dismiss for lack of
personal jurisdiction over JJCI on the two Non-
Resident Plaintiffs’ claims.
14
The only Johnson’s Baby Powder produced at Pharma Tech
Union in Missouri was a pilot batch of Johnson’s Baby Powder
Cooling Cucumber Melon in 2006, which was never sold and
which no Non-Resident Plaintiff alleges they used.
41a
Specific Jurisdiction Over J&J on the Non-
Resident Plaintiffs’ Claims15
The parties do not dispute Defendants are separate
corporate and legal entities. The parties also agree
personal jurisdiction regarding the Non-Resident
Plaintiffs’ claims over J&J exists only if JJCI’s
contacts may be properly imputed to J&J via agency
or alter ego principles.
15
Plaintiffs maintain Defendants “did not adequately present”
their argument that specific jurisdiction over J&J was improper
to the trial court. Plaintiffs argue Defendants never challenged
personal jurisdiction over J&J specifically below and only
attempted to distinguish between JJCI and J&J in “eight
footnotes in four separate memoranda filed between 2015 and
2018” with no accompanying evidentiary citations and minimal
evidence. As such, Plaintiffs argue we should treat Defendants’
argument as waived. Based on our review of the record, we find
Defendants argued this issue below and the trial court
considered the issue of personal jurisdiction over J&J on the
Non-Resident Plaintiffs’ claims based on the evidence presented.
Defendants’ memoranda in support of their motion to dismiss for
lack of personal jurisdiction emphasized any relevant
contractual relationships were solely between JJCI and Pharma
Tech Industries. And Defendants specifically raised the issue of
personal jurisdiction over J&J on the Non-Resident Plaintiffs’
claims at the pre-trial hearing, where they argued:
[T]here are no allegations of any contracts between the[

Pharma Tech] entities and Johnson & Johnson. The only
contracts are contracts between the[ Pharma Tech]
entities and JJCI. So the arguments that are made based
on the relationship between JJCI and Pharma Tech or
PTI Union, or PTI Royston, do not support exercise of
jurisdiction with regard to Johnson & Johnson.
42a
Fifteen Non-Resident Plaintiffs’ Claims
We must first confront whether JJCI’s minimum
contacts with Missouri, as they relate to the
manufacturing, packaging, and labeling of Shimmer,
should be imputed to J&J so that specific jurisdiction
over J&J exists on the fifteen Non-Resident Plaintiffs’
claims.
The requirements of personal jurisdiction “must be
met as to each defendant.” Bristol- Myers, 137 S. Ct.
at 1783. “It is a general principle of corporate law
deeply ‘ingrained in our economic and legal systems’
that a parent corporation . . . is not liable for the acts
of its subsidiaries.” United States v. Bestfoods, 118 S.
Ct. 1876, 1884 (1998). “[T]wo separate corporations
are to be regarded as distinct legal entities, even if the
stock of one is owned partly or wholly by the other.”
Mitchell v. K.C. Stadium Concessions, Inc., 865
S.W.2d 779, 784 (Mo. App. W.D. 1993). Even a “close,
synergistic relationship” between a parent and
subsidiary corporation does not transfer the
subsidiary’s contacts to the parent for purposes of
assessing personal jurisdiction. Goodbye Vanilla,
LLC v. Aimia Proprietary Loyalty U.S. Inc., 196 F.
Supp. 3d 985, 991 (D. Minn. 2016) (citing Viasystems,
Inc. v. EMB-Pabst St. Georgen GmbH & Co., KG, 646
F.3d 589, 596 (8th Cir. 2011)). The “parent/subsidiary
separation should be ‘ignored with caution, and only
when the circumstances clearly justify it.’” Doe 1631
v. Quest Diagnostics, Inc., 395 S.W.3d 8, 18 (Mo. banc
2013) (quoting Cent. Cooling & Supply Co. v. Dir. of
Revenue, State of Mo., 648 S.W.2d 546, 548 (Mo. banc
1982)).
43a
“Courts, both nationwide and in Missouri, recognize
two doctrines by which to hold a parent corporation
liable for the acts of a subsidiary.” Blanks v. Fluor
Corp., 450 S.W.3d 308, 374 (Mo. App. E.D. 2014). The
first is where an alter ego relationship is established
between a parent corporation and its subsidiary. Mid-
Mo. Tel. Co. v. Alma Tel. Co., 18 S.W.3d 578, 582 (Mo.
App. W.D. 2000). The second is where an agency
relationship is established between a parent
corporation and its subsidiary. See State ex rel. Ford
Motor Co. v. Bacon, 63 S.W.3d 641, 642 (Mo. banc
2002).
Plaintiffs’ brief on appeal primarily argues specific
jurisdiction over J&J is proper because the MSA
between JJCI and Pharma Tech Industries referenced
and “included” J&J. Plaintiffs argue the MSA
between JJCI and Pharma Tech Industries renders
J&J subject to specific jurisdiction in Missouri
because the MSA: imposed “J&J’s Responsibility
Standards for Suppliers and its Wood Pallet Policy”;
indemnified J&J for certain losses; provided
“protections for J&J’s intellectual property”; and
provided J&J would be copied on certain contractual
notices. This argument is nothing more than a
request to hold J&J liable based on a contract it did
not sign simply because J&J was mentioned within
the contract’s fine print with no reference to agency or
alter ego principles. We cannot hold the trial court
properly exercised personal jurisdiction over J&J on
this theory. See Mid-Mo. Tel. Co., 18 S.W.3d at 582.
Although not discussed in detail in their brief,
Plaintiffs’ Petition alleges both that JJCI acted as an
agent on behalf of J&J and J&J and JJCI were alter
44a
egos. 16 To determine whether Plaintiffs sufficiently
pled facts to support either or both of these theories,
we must consider Missouri’s requirements for
establishing an alter ego relationship and an agency
relationship.17
Courts will find an alter ego relationship exists
between a parent corporation and its subsidiary if the
“parent corporation completely dominates its
subsidiary, and has created or is using the subsidiary
for some improper purpose.” Blanks, 450 S.W.3d at
377 (citing Camelot Carpets, Ltd. v. Metro Distrib. Co.,
607 S.W.2d 746, 750 (Mo. App. E.D. 1980)). This
“alter ego” concept is commonly called “piercing the
corporate veil.” Id. at 377. To pierce the corporate
veil, a plaintiff must prove these three elements:
(1) Control, not mere majority or complete stock
control, but complete domination, not only of
finances, but of policy and business practice
in respect to the transaction attacked so
that the corporate entity as to this
transaction had at the time no separate
mind, will or existence of its own; and
(2) Such control must have been used by the
defendant to commit fraud or wrong, to
16
Plaintiffs dedicated a little over one page of their 165-page
brief to the argument that specific jurisdiction over J&J is proper
because “J&J and JJCI held themselves out as one and the
same.” They argued personal jurisdiction was proper on this
ground because J&J was mentioned in several documents
between JJCI and Pharma Tech Industries.
17
For a thorough explanation of the distinctions between the
“alter ego” theory and the “agency” theory, see Blanks v. Fluor
Corp., 450 S.W.3d 308, 375-83 (Mo. App. E.D. 2014).
45a
perpetrate the violation of a statutory or
other positive legal duty, or dishonest and
unjust act in contravention of plaintiff’s
legal rights; and
(3) The aforesaid control and breach of duty
must proximately cause the injury or unjust
loss complained of.
Id. at 375-76. When piercing the corporate veil,
“courts set aside and ignore the subsidiary’s corporate
entity to hold the parent liable.” Id. at 380. “All
activities—and liabilities—of the subsidiary become
those of the parent.” Id.
“The agency theory differs from piercing the
corporate veil in theory and operation.” Id. at 379.
“Under an agency theory, the court attributes specific
acts to the parent corporation, as principal, because of
the parent’s authorization of those acts.” Id. “When
legal liability is predicated on principles of agency,
courts do not ignore or set aside the existence and
entity of the subsidiary. Rather the separate
corporate identity of the subsidiary is affirmed, and
the two corporations remain distinct entities.” Id.
(internal citations omitted). “To establish agency,
evidence must support a finding that the principal has
consented to the agents acting on the principal’s
behalf, and the agent must be subject to the
principal’s control.” Hefner v. Dausmann, 996 S.W.2d
660, 664 (Mo. App. S.D. 1999) (citing Wray v. Samuel
U. Rodgers’ Cmt’y Health Ctr., Inc., 901 S.W.2d 167,
170 (Mo. App. W.D. 1995)). However, domination and
control alone does not establish agency. See Blanks,
450 S.W.3d at 380-81. The “essential elements” of an
agency relationship are:
46a
1) that an agent holds a power to alter legal
relations between the principal and a third
party;
2) that an agent is a fiduciary with respect to
matters within the scope of the agency; [and]
3) that a principal has the right to control the
conduct of the agent with respect to matters
entrusted to the agent . . . .
Id. at 382-83 (alteration in original) (quoting Bacon,
63 S.W.3d at 642).
During oral argument, Plaintiffs conceded personal
jurisdiction over J&J could only be justified on an
agency theory, waiving their reliance on an alter ego
theory. Even if Plaintiffs had not conceded this issue,
Plaintiffs’ allegation that Defendants were alter egos
would fail. Plaintiffs failed to plead facts alleging J&J
should be held liable for the acts of JJCI as an alter
ego. Plaintiffs’ allegations focus entirely on JJCI’s
relationship with J&J and J&J’s level of control over
JJCI. However, “Even [if] corporations are related
and one has complete control over the other, there can
be no piercing of the corporate veil without a showing
of impropriety in the establishment or use of the
corporate form sought to be disregarded.” Blanks, 450
S.W.3d at 376. Plaintiffs pled no impropriety in J&J’s
establishment of or use of JJCI and no such evidence
was adduced at trial. Therefore, we cannot impute the
activities of JJCI to J&J for jurisdictional purposes on
an alter ego theory.
Plaintiffs’ argument that an agency relationship
existed between Defendants fairs no better. The
47a
Petition includes these allegations regarding the
relationship between Defendants:
• J&J “formulates and coordinates the global
strategy for the ‘Johnson & Johnson Family of
Companies,’ including [JJCI], and maintains
central corporate policies requiring [JJCI] to
act under the general guidance of [J&J].”
• J&J exercised an “unusually high degree of
control” over JJCI’s manufacturing, marketing,
testing, promoting, selling, and/or distributing
of the Products.
• J&J “maintains a reporting relationship with
[JJCI] that is not defined by a legal, corporate
relationship, but in fact crosses that corporate
line.”
• J&J “directed [JJCI] how it was to handle
product safety communication between [JJCI]
and the scientific community and consumers at
large as to the hazard the PRODUCTS pose to
women with respect to development of ovarian
cancer.”
• J&J “maintains a central global finance
function that governs the entire Johnson &
Johnson Family of Companies, to include
[JJCI], such that [JJCI] does not function
independently but under [J&J]’s umbrella.”
These allegations suggest J&J exerted a high level
of control over JJCI’s activities. However, they are
nothing more than bare assertions unsupported by
the record. Plaintiffs submitted no exhibits,
affidavits, or other evidence regarding J&J’s alleged
48a
domination and control over JJCI with their briefs
opposing Defendants’ motion to dismiss for lack of
personal jurisdiction. Such “[b]are assertions of
jurisdiction are insufficient” to establish personal
jurisdiction. Yaeger, 2014 WL 3543426, at *3. In
addition, even if Plaintiffs sufficiently established
J&J exerted a high level of control over JJCI’s
activities in the record, their Petition wholly failed to
allege the first and second elements of agency: that
JJCI holds a power to alter legal relations between
J&J and third parties and that JJCI is a fiduciary for
J&J on any matters. This failure is fatal to their
claim.
Plaintiffs failed to plead and prove all elements of
agency. Therefore, we cannot impute the activities of
JJCI to J&J for jurisdictional purposes on an agency
theory. The circumstances in this case do not clearly
justify ignoring the distinction between
parent/subsidiary and holding J&J liable for JJCI’s
acts. We find the trial court erred in overruling
jurisdiction as to J&J on the fifteen Non-Resident
Two Non-Resident Plaintiffs’ Claims
Because we find JJCI lacked minimum contacts
with Missouri relating to the claims of the two Non-
Resident Plaintiffs’ who denied using Shimmer and
testified they only used Johnson’s Baby Powder, we
find J&J also could not have had minimum contacts
with Missouri relating to their claims. Therefore, we
find the trial court also erred in overruling
49a
jurisdiction as to J&J on the two Non-Resident
Point III is granted in part and denied in part.
Because “any judgment entered without personal
jurisdiction over a party is void,” the trial court’s
judgment entered against JJCI on the two Non-
Resident Plaintiffs’ claims and against J&J on all
seventeen Non-Resident Plaintiffs’ claims is reversed.
See Focus Bank v. Scott, 504 S.W.3d 904, 907 (Mo.
App. S.D. 2016) (internal quotations omitted).
Point IV: Dr. Longo’s Testimony
In their fourth point relied on, Defendants argue the
trial court abused its discretion in admitting Dr.
Longo’s testimony because they contend it “rested on
insufficient facts and data, was not the product of
reliable principles and methods, and did not reliably
apply principles and methods to the facts, in violation
of section 490.065.”18
Standard of Review
“The trial court has considerable discretion when
admitting evidence.” Jones v. City of Kan. City, 569
S.W.3d 42, 53 (Mo. App. W.D. 2019), overruled on
other grounds by Wilson v. City of Kan. City, —
S.W.3d—, No. SC 97712, 2020 WL 2392483 (Mo. banc
May 12, 2020) (citing Mansil v. Midwest Emergency
Med. Servs., P.C., 554 S.W.3d 471, 475 (Mo. App. W.D.
2018)). We review a trial court’s decision to admit
expert testimony for abuse of discretion. State v.
Rogers, 529 S.W.3d 906, 910, 917 (Mo. App. E.D.
18
All statutory references are to RSMo 2017, unless otherwise
indicated.
50a
2017). “An abuse of discretion occurs when the court’s
ruling is ‘clearly against the logic of the circumstances
then before the trial court and is so unreasonable and
arbitrary that the ruling shocks the sense of justice
and indicates a lack of careful deliberate
consideration.’” Jones, 569 S.W.3d at 53 (quoting
Mansil, 554 S.W.3d at 475). The burden is on the
appellant to prove the trial court abused its discretion
and prejudice resulted. Matter of Care & Treatment
of Lester Bradley v. State, 554 S.W.3d 440, 452 (Mo.
App. W.D. 2018).
Analysis
The admissibility of expert testimony is governed by
section 490.065 as amended by the Missouri
Legislature effective August 28, 2017. State v. Boss,
577 S.W.3d 509, 517 (Mo. App. W.D. 2019); State v.
Suttles, 581 S.W.3d 137, 146-47 (Mo. App. E.D. 2019).
Since the 2017 amendment, sections 490.065.2(1)-(2)
contain language identical to Federal Rule of
Evidence (“FRE”) 702 and 703 and provide:
(1) A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an opinion
or otherwise if:
(a) The expert’s scientific, technical, or other
specialized knowledge will help the trier of
fact to understand the evidence or to
determine a fact in issue;
(b) The testimony is based on sufficient facts
or data;
51a
(c) The testimony is the product of reliable
principles and methods; and
(d) The expert has reliably applied the
principles and methods to the facts of the
case[.]
(2) An expert may base an opinion on facts or
data in the case that the expert has been made
aware of or personally observed. If experts in
the particular field would reasonably rely on
those kinds of facts or data in forming an
opinion on the subject, they need not be
admissible for the opinion to be admitted. But
if the facts or data would otherwise be
inadmissible, the proponent of the opinion may
disclose them to the jury only if their probative
value in helping the jury evaluate the opinion
substantially outweighs their prejudicial effect.
Suttles, 581 S.W.3d at 146-47 (quoting § 490.065.2(1)-
(2)).
Under section 490.065.2, “trial courts must act as
gatekeepers to ensure that the testimony sought to be
admitted . . . is ‘not only relevant, but reliable.’” State
ex rel. Gardner v. Wright, 562 S.W.3d 311, 317 (Mo.
App. E.D. 2018) (quoting Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 589, 113 S. Ct. 2786,
(1993)). “This Court since has held that because the
language of Section 490.065 now mirrors FRE 702 and
703, and because FRE 702 and 703 are interpreted
under Daubert and its progeny, the cases interpreting
those federal rules remain relevant and useful in
guiding our interpretation of Section 490.065.”
Suttles, 581 S.W.3d at 147 (citing Jones, 569 S.W.3d
52a
at 54). “Several federal circuits boil the gatekeeping
function of trial courts under [FRE] 702 down to its
essence in a useful three-part test: (1) whether the
expert is qualified, (2) whether the testimony is
relevant, and (3) whether the testimony is reliable.”
Wright, 562 S.W.3d at 319 (collecting cases). Missouri
courts have borrowed this three-part test to determine
the admissibility of expert testimony. See id.; Jones,
569 S.W.3d at 54.
Defendants’ point on appeal challenges only the
reliability of Dr. Longo’s testimony. “[R]eliability,
under section 490.065.2, is determined by many
factors,” including those set out in Daubert. Boss, 577
S.W.3d at 517. The Daubert factors allow courts to
consider the following when determining if an expert’s
testimony is reliable:
(1) whether the expert’s technique or theory can
be or has been tested; (2) whether the technique
or theory has been subject to peer review and
publication; (3) the known potential error rate
of the technique or theory when applied and the
existence and maintenance of standards and
controls; and (4) whether the technique or
theory has been generally accepted in the
scientific community.
Id. (citing Daubert, 509 U.S. at 593-94, 113 S. Ct.
2786). “Although [section] 490.065.2 is patterned
after [FRE] 702, and the Supreme Court of the United
States interpreted [FRE] 702 in Daubert, this Court
has held that ‘the Daubert factors themselves are not
controlling’ in applying [section] 490.065.” State v.
Marshall, 596 S.W.3d 156, 160 (Mo. App. W.D. 2020)
(quoting Suttles, 581 S.W.3d at 147). The
53a
admissibility inquiry is flexible and “other factors may
also be relevant.” Wright, 562 S.W.3d at 318. “[N]o
single factor is necessarily dispositive of the reliability
of a particular expert’s testimony.” Id.
Defendants contend Dr. Longo’s testimony was
unreliable because: (1) his conclusion that Johnson’s
Baby Powder contained asbestos was based on his
testing of previously opened, “secondhand” samples
dating back to the 1930s and 1940s and (2) his
conclusion that Plaintiffs were exposed to high levels
of asbestos was based on improper extrapolations
from a videotaped simulation in which an “extreme
outlier” sample of Johnson’s Baby Powder was used.
We address each of Defendants’ arguments.
Johnson’s Baby Powder Bottle Samples
At trial, Plaintiffs’ expert Dr. Longo testified he
sampled thirty-six bottles of Defendants’ Products
with a transmission electron microscope. Dr. Longo
testified about the methods he used to obtain the
samples: he purchased one bottle off-the-shelf at a
store; one bottle came from the J&J museum; one
bottle came from a Plaintiff’s home; and the rest were
bought by Plaintiffs’ lawyers, both from eBay and off-
the-shelf at a store, and sent to him. Dr. Longo
testified twenty of the thirty-six bottles tested positive
for asbestos. In an earlier deposition, Dr. Longo
testified none of the bottles sent to him by Plaintiffs’
lawyers were sealed and each had been previously
opened. He testified he did not know the chain of
custody of those bottles before Plaintiffs’ lawyers sent
them to him.
54a
Defendants challenge the reliability of Dr. Longo’s
testimony that twenty of the thirty-six bottles of
Johnson’s Baby Powder tested contained asbestos
under section 490.065.2. Defendants complain Dr.
Longo’s testimony was unreliable because Dr. Longo
“had no idea whether the samples he tested consisted
of [D]efendants’ Powders in their original condition.”
Defendants argue that, because Dr. Longo’s testimony
was based on facts and data derived from
“secondhand” bottles of Johnson’s Baby Powder
previously opened, the data underpinning his
testimony lacked “reasonable assurance” that the
bottles of Johnson’s Baby Powder tested were not
contaminated or altered after leaving Defendants’
control. Defendants argue there were “strong
indications” the talc in the bottles tested by Dr. Longo
was contaminated or altered, as several of the testing
samples contained impurities not associated with
manufacturing Johnson’s Baby Powder, such as the
minerals “richterite” and “diatomaceous earth.”
Dr. Longo’s testimony is not rendered unreliable
under section 490.065.2 because several samples he
tested for asbestos were previously opened before they
were sent to him. The sufficiency of the facts and data
and reliability of the principles and methods Dr.
Longo used in concluding the samples of Johnson’s
Baby Powder he tested contained asbestos were
sufficiently established.
In an earlier deposition, Dr. Longo testified he took
steps to verify the samples he tested were in fact
samples of Johnson’s Baby Powder. He testified he
performed a “particle size analysis” on a scanning
electron microscope “to compare the size distributions
of the talc particles as well as any fibrous particles in
55a
there as compared to . . . a current version of Johnson’s
Baby Powder that was bought at a local store.” He
testified he conducted this analysis to “see how the
size particles compared from sample to sample to
sample.” Dr. Longo found “the particle size
distribution was consistent among and between them
. . . and consistent with [Defendants’] own particle size
specifications.” Citing an article by J&J executives,
Dr. Longo noted this finding was significant because
“particle size of the talc raw material used in . . .
products varies widely by product type and by
manufacturer.” Also in an earlier deposition, Dr.
Longo testified he considered whether the thirty-six
samples of Johnson’s Baby Powder he tested had been
contaminated. Dr. Longo stated the caps and lids of
the Johnson’s Baby Powder he tested could not be
removed by hand and there would be observable
evidence if the cap or lid had been removed. Dr. Longo
concluded none of the samples he analyzed showed
any signs of tampering.
“The trial court’s role as gatekeeper is not intended
to serve as a replacement for the adversary system.”
Eichacker v. Eichacker, 596 S.W.3d 177, 185 (Mo. App.
E.D. 2020) (citing Wright, 562 S.W.3d at 317). “In
deciding whether to admit an expert’s testimony, the
circuit court is required to ensure that all of the
statutory factors are met; however the court is not
required to consider the degree to which they are
met.” Kivland v. Columbia Orthopaedic Grp., LLC,
331 S.W.3d 299, 311 (Mo. banc 2011). “Vigorous cross-
examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky
but admissible evidence.” Wright, 562 S.W.3d at 318
56a
(quoting Daubert, 509 U.S. at 596, 113 S. Ct. 2786).
“So long as the expert is qualified, any weakness in
the expert’s knowledge is for the jury to consider in
determining what weight to give the expert.” Kivland,
331 S.W.3d at 311.
Here, the parties presented the jury with competing
theories of whether the Johnson’s Baby Powder
contained asbestos. Rather than deeming any theory
contrary to Defendants’ theory unreliable, it was
appropriate for the trial court to submit Dr. Longo’s
expert opinion to the jury. Defendants had plenty of
opportunities to highlight possible sources of
contamination in the samples of Johnson’s Baby
Powder Dr. Longo tested during cross-examination.
Defendants’ challenge to Dr. Longo’s use of previously
opened samples of Johnson’s Baby Powder goes to the
weight of his testimony, not its admissibility.
Defendants also urge us to find the trial court
abused its discretion in allowing Dr. Longo to testify
Johnson’s Baby Powder contained asbestos after
testing previously opened samples because several
other courts have done so when faced with Dr. Longo’s
or a similar expert’s opinion.19 However, Defendants’
19
See e.g., Fishbain v. Colgate-Palmolive Co., No. A-1786-15T2,
2019 WL 4072135, at *9-11 (N.J. App. Aug. 29, 2019) (excluding
expert testimony regarding samples of talc obtained from eBay
without a reliable chain of custody); Weirick v. Brenntag N. Am.
Inc., No. JCCP 4674 (Cal. Super. Ct. July 23, 2018) (order
excluding Dr. Longo’s testimony regarding samples of talc
because the Products he tested “came from multiple sources
(clients, collectors, and off-the-shelf purchases by the plaintiff
firms) and multiple eras (unknown, 1950s, 1960s, 1970s, 1990s,
2000s, and 2010s)” and plaintiffs “fail[ed] to explain how the
samples were stored, repackaged, delivered, etc.”); Nosse v.
57a
assertion that Dr. Longo’s testimony must be excluded
because other courts have deemed it inadmissible
does not persuade us the trial court abused its
discretion. Plaintiffs note several other courts have
admitted Dr. Longo’s testimony about whether
Johnson’s Baby Powder contains asbestos. 20 “An
abuse of discretion will not be found if reasonable
minds could differ as to the propriety of the trial
court’s action.” Bell v. Redjal, 569 S.W.3d 70, 81 (Mo.
App. E.D. 2019) (citing Koon v. Walden, 539 S.W.3d
752, 761 (Mo. App. E.D. 2017)). The fact courts across
the country do not agree on whether this testimony is
Arvinmeritor, Inc., No. BC603354 (Cal. Super. Ct. June 29, 2016)
(in a pre-trial hearing, the trial court stated “it’s unreasonable
for an expert to rely on the test that was done in a product that
cannot be traced back to the product at issue and draw
conclusions from the testing on those products that what he
tested was indeed the product at issue.”); Barlow v. Colgate-
Palmolive Co., No. 24X11000783, slip op. at 16-17 (Bal. Cir. Ct.
Nov. 13, 2015) (“Given the numerous hands through which these
containers pass within the secondary Internet market, the Court
finds that it is indeed possible that the eBay samples have been
subjected to tampering or altered in some fashion, thereby
leaving them in a significantly different condition from the time
they were manufactured.”).
20
See e.g., Lanzo v. Cyprus Amax Minerals Co., No. L-7385-
16AS, at *10 (N.J. Sup. Ct. Dec. 22, 2017) (in a pre-trial hearing,
the trial court admitted Dr. Longo’s testimony based on sampling
of previously opened bottles, finding his testimony “compelling”
because he established the “consistency of the product”
throughout the samples. The trial court held other issues with
his testimony would “go to the weight of the evidence,” not
admissibility); Bostic v. 3M Co., No. 2017-CP-16-0400, 122, 125
(S.C. Com. Pl. May 11, 2018) (in a pre-trial hearing, the trial
court held Dr. Longo’s testimony based on previously opened
samples of Johnson’s Baby Powder was admissible).
58a
admissible is proof that reasonable minds can, and do,
differ on this subject.
Videotaped Simulation and Testimony
Regarding Exposure Levels
To demonstrate the level of “dust” in the air that can
be generated by using Johnson’s Baby Powder, Dr.
Longo conducted a videotaped simulation of a man
wearing a respirator applying Johnson’s Baby Powder
to his legs and/or underwear. In the simulation,
which lasted five minutes, the man applied Johnson’s
Baby Powder for a few seconds. The man sat in one
place for the remainder of the five minutes, allowing
air samples to be gathered. Air filters were then
analyzed using standard protocols for determining
occupational exposure to airborne asbestos fibers.
The simulation showed the man applying Johnson’s
Baby Powder under regular lighting and under
“Tyndall” lighting, which Dr. Longo described as “high
intensity lighting” that shows “invisible[,] small
microscopic particles . . . in the air [that] normally you
can’t see.” Dr. Longo testified that, when the
simulation was viewed under Tyndall lighting, the
jury could see how much “dust” was actually
generated from the man’s application of Johnson’s
Baby Powder. Dr. Longo explained to the jury that
the simulation showed “how the particles of talc get
up into the breathing zone, get up into – into your
surrounding” even when Johnson’s Baby Powder is
applied solely below the waist. He testified that,
under normal lighting, “[y]ou wouldn’t realize you
were in this cloud of dust using . . . Johnson[’s] Baby
Powder.”
59a
After the simulation was shown to the jury, Dr.
Longo testified the sample of Johnson’s Baby Powder
used in the simulation was a post-1953 bottle with the
highest concentration of asbestos of all the bottles he
tested; the bottle had “fifteen million asbestos fibers
in bundles per gram,” or 630 million total asbestos
fibers. Based on the number of asbestos fibers in the
high-concentration sample from the simulation, Dr.
Longo then testified that a person buying a fourteen-
ounce bottle of Johnson’s Baby Powder would be
exposed to 5.9 billion asbestos fibers. He testified a
person buying a twenty-two-ounce bottle of Johnson’s
Baby Powder would be exposed to nine billion
asbestos fibers.
Defendants advance several reasons why Dr.
Longo’s simulation and related testimony should have
been excluded. However, none have merit. First,
Defendants complain the bottle of Johnson’s Baby
Powder Dr. Longo used in the simulation was an
“extreme outlier” that “purportedly had amphibole
levels more than 30 times higher than the average Dr.
Longo claimed to have found in all the secondhand
samples combined.” (alterations omitted). But Dr.
Longo testified “there was a specific reason [he] used”
the post-1953, high-concentration bottle in the
simulation. He explained another scientist published
a similar, peer-reviewed study of the asbestos levels
in cosmetic talc manufactured by Cashmere Bouquet.
He testified the Cashmere Bouquet study used a
cosmetic talc sample with eighteen million asbestos
fibers in bundles per gram. Because Dr. Longo
wanted to see if Johnson’s Baby Powder “performed
the same” as Cashmere Bouquet, he testified used a
bottle of Johnson’s Baby Powder with “fifteen million
60a
asbestos fibers in bundles per gram,” or 630 million
asbestos fibers, in the simulation. Dr. Longo’s
reliance on a similar, published, peer-reviewed study
when selecting the sample used in the simulation
provides the data underlying his testimony with a
sufficient indicia of reliability.
Defendants also claim Dr. Longo’s testimony that
Plaintiffs exposure levels to asbestos were just as high
as the man in the simulation were unreliable because
Dr. Longo failed to establish a similarity of
circumstances and conditions between the simulation
and Plaintiffs’ real-life use of the Products. “A court
may properly admit experimental evidence if the tests
were conducted under conditions substantially
similar to the actual conditions.” Champeau v.
Fruehauf, 814 F.2d 1271, 1278 (8th Cir. 1987)
(quoting Randall v. Warnaco, Inc., 677 F.2d 1226,
1233-34 (8th Cir. 1982)). “Admissibility, however,
does not depend on perfect identity between actual
and experimental conditions. Ordinarily,
dissimilarities affect the weight of the evidence, not
its admissibility.” Id.
The conditions in the simulation were not identical
to Plaintiffs’ real-life exposures. However, the
simulation did not purport to be a recreation of
Plaintiffs’ exact uses of Johnson’s Baby Powder.
Instead, it was offered solely to show the level of dust
involved in applying Johnson’s Baby Powder is
“beyond what [a juror] would normally perceive.” The
trial court instructed the jury accordingly. The trial
court instructed the jury to consider the simulation
evidence “only with respect to the demonstration of
the ability of dust particles to remain arborne” and not
61a
“on the issues of how much of the dust depicted is or
is not asbestos.”
Last, Defendants argue Dr. Longo’s video
demonstration should have been excluded from
evidence because allowing the jury to view it was
prejudicial in that “the only effect of presenting the
jury with a vivid image of a shirtless man in an
oversized gas mask dousing himself in Johnson’s Baby
Powder was to convey to the jury the very point that
was so hotly contested—that the Powders can kill.”
However, “[d]emonstrating that a piece of evidence is
prejudicial is not enough to warrant exclusion . . . by
itself since virtually all evidence presented against a
[party] can be considered prejudicial.” United States
v. Kapordelis, 569 F.3d 1291, 1313 (11th Cir. 2009).
Rather, exclusion is warranted only when the
evidence creates a danger of unfair prejudice,
confusion of the issues, or misleading the jury that
substantially outweighs the probative value of the
evidence. Still v. Ahnemann, 984 S.W.2d 568, 575
(Mo. App. W.D. 1999) (citing FED. R. EVID. 403).
Defendants concede the video demonstration was
relevant. The video was not shocking, confusing, or
misleading. “Defendants’ arguments regarding the
exaggeration of the appearance of dust would be
appropriate arguments in challenging the weight of
the video.” See Lipson v. On Marine Servs. Co., No.
C13-1747, 2013 WL 6536923, at *3 (W.D. Wash. Dec.
13, 2013).
Again, Defendants urge us to find the trial court
abused its discretion in allowing Dr. Longo to testify
Plaintiffs were exposed to high levels of asbestos
based on his extrapolations from the simulation
because several other courts have excluded the exact
62a
video Dr. Longo showed the jury in this case, or a
similar one.21 And, again, Plaintiffs point out other
courts have admitted similar experiments conducted
by Dr. Longo and the testimony accompanying them.22
Becasue “[a]n abuse of discretion will not be found if
reasonable minds could differ as to the propriety of the
trial court’s action,” we cannot find the trial court
abused its discretion in admitting Dr. Longo’s
simulation and related testimony. Bell, 569 S.W.3d at
81 (citing Koon, 539 S.W.3d at 761).
Dr. Longo’s testimony met the standards of
reliability under section 490.065.2. We find no error
in the trial court’s decision to admit his testimony.
21
See, e.g., Herford v. AT&T Corp., No. BC646315, at *81 (Cal.
Super. Ct. Sept. 27, 2017) (in a pre-trial hearing, the trial court
excluded Dr. Longo’s video simulation); In re Garlock Sealing
Techs., LLC, 504 B.R. 71, 80-81 (Bankr. W.D.N.C. 2014)
(describing Dr. Longo’s simulation video study as “pseudo-
science at best” because they “were carried out in such a way as
to produce the highest results possible and to overdramatize the
process.”); Krik v. Crane Co., 71 F. Supp. 3d 784, 791 (N.D. Ill.
2014) (excluding Dr. Longo’s video simulation because the study
“had not been conducted in ‘substantially the same conditions’ as
the alleged exposure.”); Dugas v. 3M Co., No. 3:14-cv-1096-J-
39JBT, 2016 WL 3946802, at *6 (M.D. Fla. June 21, 2016)
(excluding one of Dr. Longo’s studies because they were not
conducted in “substantially similar” conditions to those the
plaintiff encountered and its admission would “invite[ ] a
plethora of unfair inferences.”).
22
See e.g., Lipson v. On Marine Servs. Co., No. C13-1747, 2013
WL 6536923, at *2-3 (W.D. Wash. Dec. 13, 2013) (admitting Dr.
Longo’s video demonstrations using Tyndall lighting and
accompanying testimony into evidence because the trial court
found doing so would “assist the jury in understanding the
evidence and . . . Dr. Longo’s opinions [were] relevant and
reliable”).
63a
Point IV is denied.
Point V: Dr. Madigan’s Testimony
In their fifth point relied on, Defendants argue the
trial court abused its discretion in admitting Dr.
Madigan’s testimony because they contend it “rested
on insufficient fa[c]ts and data, was not the product of
of section 490.065.”
Standard of Review
admitting evidence.” Jones, 569 S.W.3d at 53 (citing
Mansil, 554 S.W.3d at 475). We review a trial court’s
decision to admit expert testimony for abuse of
discretion. Rogers, 529 S.W.3d at 910, 917.
Analysis
At trial, Plaintiffs’ expert Dr. Madigan testified on
direct-examination that Plaintiffs’ counsel asked him
to review the samples of Johnson’s Baby Powder that
Dr. Longo found contained asbestos. Based on Dr.
Longo’s findings, Dr. Madigan was asked to calculate
the statistical probability that a Plaintiff was exposed
to asbestos if she was exposed to a certain number of
containers in her life (i.e., 20, 50, 100). He testified he
“rel[ied] heavily on Dr. Longo’s work” in reaching his
opinions. When Dr. Madigan prepared his report, Dr.
Longo had tested thirty-three bottles of Johnson’s
Baby Powder. Of those thirty-three bottles tested, Dr.
Longo detected asbestos in nineteen bottles and did
not detect asbestos in fourteen bottles.
64a
Based on Dr. Longo’s test results, Dr. Madigan
testified the statistical probability that a Plaintiff was
exposed to asbestos in Johnson’s Baby Powder
“depends on how many containers [she] w[as] exposed
to”; “the more containers [she] w[as] exposed to, the
more likely [she] w[as] exposed to asbestos.” He
testified, “[I]f a [P]laintiff were exposed to 50
containers [of Johnson’s Baby Powder], [his]
calculations suggest[ ] the probability they were not
exposed to asbestos is very, very small”; “It’s the
chance of winning [the] Powerball [lottery] with 10
tickets.” 23 (emphasis added). He testified, “If a
woman used 50 bottles of [Johnson’s Baby Powder],
based on [his] assumptions, there’s a 99.999999997
percent chance she’s exposed to asbestos in that
bottle” and the chance she’s exposed to asbestos is
“basically guaranteed.” Dr. Madigan also testified if
a Plaintiff were exposed to 100 containers of Johnson’s
Baby Powder, the odds she was not exposed to
asbestos is equivalent to winning the Powerball
lottery with just one ticket.
Defendants contend Dr. Madigan’s testimony was
unreliable because he based his statistical analysis
entirely on Dr. Longo’s “unreliable” test results.
Defendants argue that, even if Dr. Longo’s testimony
regarding whether there was any asbestos in
Johnson’s Baby Powder was admissible, Dr.
Madigan’s expert testimony should have been
23
Powerball is a popular American lottery game. The
published odds of winning the Powerball jackpot are about one
in 292 million. See Alicia Adamczyk, CNBC, These Are the Odds
You’ll Win Tonight’s $350 Million Powerball Jackpot, June 1,
2019, https://www.cnbc.com/2019/05/31/these-are-the-odds-
youll-win-the-350-million- powerball-jackpot.html.
65a
excluded because he failed to demonstrate Dr. Longo’s
samples were representative of the Johnson’s Baby
Powder produced by Defendants over any relevant
time period. Defendants suggest neither Dr. Longo
nor Dr. Madigan established Dr. Longo’s test samples
were representative of Johnson’s Baby Powder
produced by Defendants and instead merely relied on
each other to “assume” the samples were
representative.
Because we find Dr. Longo’s testimony regarding his
findings of asbestos in samples of Johnson’s Baby
Powder was reliable, as further discussed in point four
of this opinion, we are not persuaded by Defendants’
argument that Dr. Madigan’s testimony was
unreliable solely because he based his statistical
analysis on Dr. Longo’s test results. We are similarly
not persuaded by Defendants’ argument that Dr.
Madigan’s testimony was unreliable because he failed
to demonstrate Dr. Longo’s samples were
representative samples from which generalizations
could be drawn.
“Courts have recognized the need for non-biased,
representative sampling in various contexts where
experts have attempted to draw generalizable
conclusions from limited data.” In re: Pella Corp.
Architect & Designer Series Windows Mktg., Sales
Practices & Prod. Liab. Litig., 214 F. Supp. 3d 478,
492 (D.S.C. 2016). Here, the representativeness of Dr.
Longo’s samples was established. At trial, Dr.
Madigan testified about the representativeness of Dr.
Longo’s samples. He testified that, although he had
“no personal knowledge of whether Dr. Longo had any
objective or neutral protocols” in deciding which
bottles were sent to Dr. Longo for testing, Dr. Longo’s
66a
samples “couldn’t possibly be biased because there’s
no way of knowing which one has asbestos and which
one doesn’t.” Dr. Madigan testified he “discussed
[representativeness] at length with Dr. Longo,” and
“the process by which the 33 [bottles] were chosen
seemed reasonable.”
Dr. Longo’s testimony corroborates Madigan’s
testimony. Dr. Longo testified he tested bottles from
the 1930s, ‘40s, ‘50s, ‘60s, and ‘70s through the early-
to-mid 2000s because those were the time frames in
which Plaintiffs used Johnson’s Baby Powder before
developing cancer. He testified, when selecting
samples, he found it most significant that the samples
being tested came from the mines used by Defendants
during the relevant time periods. Dr. Longo testified
he knew the bottles selected for testing were
manufactured during those time periods because their
containers matched Defendants’ manufacturing
specifications as they changed over the years.
Dr. Longo also reliably established the samples sent
to him were authentic Johnson’s Baby Powder. In an
earlier deposition, Dr. Longo testified he performed a
“particle size analysis” on a scanning electron
microscope “to compare the size distributions of the
talc particles as well as any fibrous particles in there
as compared to . . . a current version of Johnson’s Baby
Powder that was bought at a local store.” He testified
he conducted this analysis to “see how the size
particles compared from sample to sample to sample.”
Dr. Longo found “the particle size distribution was
consistent among and between them . . . and
consistent with [Defendants’] own particle size
specifications,” verifying the samples he tested were
representative of Johnson’s Baby Powder. Dr. Longo
67a
also testified he considered whether the thirty-six
samples of Johnson’s Baby Powder he tested had been
contaminated. Dr. Longo stated the caps and lids of
the Johnson’s Baby Powder he tested could not be
removed by hand and there would be observable
evidence if the cap or lid had been removed. Based on
his observations of the samples, Dr. Longo concluded
none showed signs of tampering.
The record is devoid of evidence that Dr. Longo
selected bottles for testing that he thought would yield
a certain result. Any weaknesses in Dr. Longo’s
testing samples could have been highlighted on cross-
examination of him in the same manner Defendants
cross-examined Dr. Madigan about the
representativeness of Dr. Longo’s samples. Notably,
Defendants chose not to cross-examine Dr. Longo
about the representativeness of his samples or sources
of possible contamination. While the burden is on
Plaintiffs to show a sampling methodology is reliable,
Defendants presented no evidence suggesting the
samples selected by Dr. Longo and relied upon by Dr.
Madigan lack trustworthiness and are not
representative. We conclude Dr. Longo’s samples
were representative of Johnson’s Baby Powder
produced in the years Plaintiffs claimed to have used
it. Therefore, Dr. Madigan’s testimony does not
violate section 490.065.
Point V is denied.
Point VI: Dr. Egilman’s Testimony
In their sixth point, Defendants argue the trial court
abused its discretion in admitting Dr. Egilman’s
testimony because they contend it “rested on
68a
Standard of Review
Analysis
At trial, Plaintiffs’ expert Dr. Egilman testified he
examined the amount of asbestos Plaintiffs were
exposed to after using Johnson’s Baby Powder. Dr.
Egilman testified he interviewed each living Plaintiff,
or a relative of the deceased Plaintiffs, and gathered
histories of their Johnson’s Baby Powder use. Based
on the results of Dr. Longo’s simulation study, and the
published, peer-reviewed study of Cashmere Bouquet
Dr. Longo also relied upon, Dr. Egilman testified the
amount of asbestos dust released during personal use
of Johnson’s Baby Powder is 1.9 fibers per cubic
centimeter of space (“f/cc”). Dr. Egilman testified he
relied on the Cashmere Bouquet study in calculating
Plaintiffs’ personal use exposures to asbestos because,
although the Cashmere Bouquet study involved a
competitor’s product, “some of the talc in that product
came from the same mine as Johnson’s Baby Powder
mine.” Based on a 1972 National Institute for
Occupational Safety and Health (“NIOSH”) study,
which tested Johnson’s Baby Powder to estimate
asbestos exposures during diapering, and J&J studies
69a
that estimated asbestos exposure during diapering,
Dr. Egilman testified the amount of asbestos dust
released during diapering was 2.2 f/cc for adults and
1.8 f/cc for babies. Using these figures and Plaintiffs’
histories, Dr. Egilman calculated the asbestos
exposure estimates for Plaintiffs, specifically
highlighting the exposure estimates of three Plaintiffs
in his trial testimony. Dr. Egilman concluded
Plaintiffs’ exposures to Johnson’s Baby Powder more
than doubled their baseline risk of developing ovarian
cancer.
Defendants maintain Dr. Egilman’s measurements
“lacked a reasonable factual basis” for several
reasons. However, their arguments are insufficient to
render Dr. Egilman’s testimony inadmissible.
“[Q]uestions relating to the bases and sources of an
expert’s opinion affect the weight to be assigned that
opinion rather than its admissbility and should be left
for the jury’s consideration.” Primrose Operating Co.
v. Nat’l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004)
(alterations in original) (internal quotations omitted).
The problems Defendants cite with Dr. Egilman’s
testimony go to the weight of his testimony, not its
admissibility.
First, Defendants complain Dr. Egilman’s finding
that the amount of asbestos dust released during
personal use of Johnson’s Baby Powder is 1.9 f/cc lacks
reliability. Defendants argue the Cashmere Bouquet
study provided no reliable basis for Dr. Egilman’s
measurements because, although that product
contained some talc from an Italian mine Defendants
used to produce Johnson’s Baby Powder, Cashmere
Bouquet contained some talc from mines in Montana
and North Dakota never used by Defendants to
70a
produce Johnson’s Baby Powder. However, the fact
the Cashmere Bouquet study examined a different
product does not render Dr. Egilman’s opinion
testimony factually baseless. Dr. Egilman testified he
consulted the same Cashmere Bouquet study Dr.
Longo also consulted when Dr. Longo chose which
sample of Johnson’s Baby Powder to use during his
simulation experiment. Dr. Longo acknowledged
Cashmere Bouquet contained a “different type of
asbestos” than Johnson’s Baby Powder. But Dr.
Longo testified the differences in Cashmere Bouquet
and Johnson’s Baby Powder did not impact the results
reached in his simulation study; Dr. Longo testified
his simulation study reached “very similar results” to
the Cashmere Bouquet study.
Next, Defendants complain Dr. Egilman’s finding
that the amount of asbestos dust released during use
of Johnson’s Baby Powder while diapering is 2.2 f/cc
for adults and 1.8 f/cc for babies lacks reliability. They
complain the 1972 NIOSH study from which he drew
those figures was flawed because it did not measure
solely the concentration of asbestos in the air; rather,
it measured the concentration of all fiber types
without distinguishing which fibers were asbestos
fibers. This fact alone, however, does not render Dr.
Egilman’s testimony unreliable and inadmissible. Dr.
Egilman explained that, after consulting several
studies, his expert opinion was that Johnson’s Baby
Powder contained asbestos. He further explained
that, in his view, whether the 1972 NIOSH study
identified fibers specifically as “asbestos” was
inconsequential, as the only other possible fiber that
could be present in a talc sample is a “talc fiber, which
71a
is chemically identical to anthophyllite asbestos and
structurally the same.”
Last, Defendants complain Dr. Egilman’s testimony
“contradicted—without any explanation or support—
the scientific consensus that perineal talc use has not
been shown to cause ovarian cancer.” “However, an
expert’s testimony is not rendered unreliable by
opposing expert testimony that contradicts it, because
contradictory fact or opinion evidence merely
establishes a fact dispute.” Sanford v. Russell, 387 F.
Supp. 3d 774, 785 (E.D. Mich. May 16, 2019). Indeed,
Daubert instructs us that “shaky but admissible
evidence” should be attacked through “[v]igorous
cross-examination” and “presentation of contrary
evidence” to the jury. See id.; see also Daubert, 509
U.S. at 595, 113 S. Ct. at 2786.
Dr. Egilman’s testimony on Plaintiffs’ asbestos
exposure was based on reasonable methodology and
was admissible under section 490.065.2. Dr. Egilman
considered the scientific literature, discussed the
scientific literature, and explained why he believed
the studies he relied on were important. The
weaknesses Defendants note in Dr. Egilman’s
testimony are weaknesses Defendants could, and did,
attack and highlight to the jury at trial through the
cross-examination of Dr. Egilman and the
presentation of their own expert witness.
Point VI is denied.
Point VII: Dr. Felsher’s Testimony
In their seventh point, Defendants argue the trial
court abused its discretion in admitting Dr. Felsher’s
testimony because they contend it “rested on
72a
Standard of Review
Analysis
Dr. Felsher conducted a “differential diagnosis” and
concluded Plaintiffs’ exposure to talc caused their
ovarian cancer. “In performing a differential
diagnosis, a[n expert] begins by ‘ruling in’ all
scientifically plausible causes of the plaintiff’s injury.
The [expert] then ‘rules out’ the least plausible causes
of injury until the most likely cause remains.”
Glastetter v. Novartis Pharm. Corp., 252 F.3d 986, 989
(8th Cir. 2001). “The final result of a differential
diagnosis is the expert’s conclusion that a defendant’s
product caused (or did not cause) the plaintiff’s
injury.” Id. “[A] medical opinion about causation,
based upon a proper differential diagnosis, is
sufficiently reliable to satisfy Daubert.” Turner v.
Iowa Fire Equip. Co., 229 F.3d 1202, 1208 (8th Cir.
2000). “Because a differential diagnosis is
presumptively admissible, . . . a . . . court may exercise
its gatekeeping function to exclude only those
diagnoses that are scientifically invalid.” Glastetter,
252 F.3d at 989. Defendants maintain Dr. Felsher’s
testimony “did not qualify as a differential diagnosis”
73a
because he had no scientifically valid bases for “ruling
in” talc as a potential cause of Plaintiffs’ ovarian
cancer or “ruling out” the other risk factors associated
with each Plaintiff. We disagree.
Defendants argue Dr. Felsher improperly “ruled in”
talc as a potential cause of Plaintiffs’ ovarian cancer
based solely on the assumptions that Dr. Longo and
Dr. Madigan correctly identified asbestos in Johnson’s
Baby Powder and Dr. Egilman correctly calculated
Plaintiffs’ exposures to asbestos from Johnson’s Baby
Powder. Defendants argue Dr. Felsher’s basis for
“ruling in” talc as a potential cause of Plaintiffs’
ovarian cancer was unreliable because Dr. Longo’s,
Dr. Madigan’s, and Dr. Egilman’s testimony was
unreliable. However, section 490.65.2(2) authorizes
the acceptance of an expert’s opinion even though that
opinion may be based on facts or data supplied by a
third party, including another expert. Schreibman v.
Zanetti, 909 S.W.2d 692, 698 (Mo. App. W.D. 1995).
The statute provides:
An expert may base an opinion on facts or data
in the case that the expert has been made
aware of or personally observed. If experts in
the particular field would reasonably rely on
those kinds of facts or data in forming an
opinion on the subject, they need not be
admissible for the opinion to be admitted.
§ 490.065.2(2). The fact Dr. Felsher assumed the
accuracy of their opinions without checking them is
inconsequential because Dr. Longo, Dr. Madigan, and
Dr. Egilman each vouched for the reasonableness and
accuracy of their tests and opinions, as explained in
points four through six above. Dr. Felsher
74a
appropriately “ruled in” talc as a potential cause of
Plaintiffs’ ovarian cancer.
Defendants argue Dr. Felsher failed to “rule out”
other potential causes of Plaintiffs’ ovarian cancer.
They argue Dr. Felsher acknowledged all Plaintiffs
had several risk factors for developing ovarian cancer
but failed to assess them “in terms of weight” or
explain why talc exposure, as opposed to other risk
factors, was the most likely cause of their ovarian
cancer. “A differential diagnosis that fails to take
serious account of other potential causes may be so
lacking that it cannot provide a reliable basis for an
opinion on causation.” Westberry v. Gislaved Gummi
AB, 178 F.3d 257, 265 (4th Cir. 1999). “However, ‘[a]
medical expert’s causation conclusion should not be
excluded because he or she has failed to rule out every
possible alternative cause of a plaintiff’s illness.’” Id.
(quoting Heller v. Shaw Indus. Inc., 167 F.3d 146, 156
(3d Cir. 1999)). “The alternative causes suggested by
a defendant affect the weight that the jury should give
the expert’s testimony and not the admissibility of the
testimony, unless the expert can offer no explanation
for why she has concluded an alternative caused
offered by the defendant was not the sole cause.” Id.
at 265 (internal citations, quotations, and alterations
omitted).
Here, Dr. Felsher considered other potential causes
for Plaintiffs’ ovarian cancer. Dr. Felsher testified at
length regarding the personal histories of each
Plaintiff and their various risk factors for developing
ovarian cancer. He admitted certain risk factors, such
as genetic mutations, family history of cancer, an
endometriosis or polycystic ovarian syndrome
diagnosis, being overweight, and using certain
75a
medications, increase the risk of developing ovarian
cancer. Dr. Felsher acknowledged cancer “can start in
a lot of ways.” But Dr. Felsher opined exposure to
asbestos “can act as gasoline” and cause cancer to
“become metastatic[ and] become[] resist[a]nt to
therapy.” He testified exposure to asbestos
aggravates cancer by promoting its spread and
halting the body’s defense mechanisms. He testified
this aggravation occurs because asbestos is a
carcinogen that activates mesothelial cells, which
cause ovarian cancer to spread from the ovaries to
other parts of the body. Dr. Felsher concluded, based
on each of the twenty-two Plaintiffs’ personal
histories, asbestos directly contributed to cause their
ovarian cancer.
Perceived faults in an expert’s differential diagnosis
are matters for cross-examination that do not affect
admissibility. See McCullock v. H.B. Fuller Co., 61
F.3d 1038, 1044 (2d Cir. 1995). On cross-examination,
Defendants questioned Dr. Felsher about why genetic
mutations were not the sole cause of Plaintiffs’
ovarian cancer. Dr. Felsher explained severe errors
in cell division were unlikely to be the sole cause of a
Plaintiff’s ovarian cancer because such genetic
mutation is “not something that generally happens
unless you’ve done something that makes it much
more likely to happen. Like a carcinogen.” On cross-
examination, Defendants chose not to question Dr.
Felsher about why the other negative risk factors,
such as family history of cancer, an endometriosis or
polycystic ovarian syndrome diagnosis, being
overweight, and using certain medications, were not
the sole cause of each Plaintiff’s ovarian cancer.
76a
Dr. Felsher’s testimony made clear that he
considered and excluded other potential causes for
Plaintiffs’ ovarian cancer. Furthermore, on cross-
examination, Dr. Felsher explained why he did not
believe genetic mutations, alone, accounted for their
ovarian cancer. Accordingly, Dr. Felsher’s alleged
failure to account for all possible alternative causes
for Plaintiffs’ ovarian cancer did not prohibit the
admissibility of his opinion as to causation.
Point VII is denied.
Point VIII: Substantial Evidence of Causation
In their eighth point, Defendants argue the trial
court erred in overruling their motions for directed
verdict and judgment notwithstanding the verdict
because Plaintiffs failed to present substantial
evidence that Defendants’ Products were the cause in
fact of their ovarian cancer. Defendants maintain
Plaintiffs failed to present substantial evidence that
Defendants’ Products were the cause in fact of
Plaintiffs ovarian cancer because their “general
causation theory was contrary to the overwhelming
scientific consensus.”24
24
Defendants also argue Plaintiffs failed to make a
submissible case for causation because, “with the exclusion of
Drs. Felsher, Egilman, Longo, and/or Madigan, a jury could not
find in [P]laintiffs’ favor on the issues of specific and general
causation.” For the reasons explained in points four through
seven of this opinion, the testimony of Drs. Felsher, Egilman,
Longo, and Madigan was admissible. Therefore, Defendants’
argument, to the extent it hinges on the inadmissibility of those
experts’ testimony, is moot and will not be further addressed.
77a
Standard of Review
“The standard of review of a trial court’s denial of
motions for directed verdict and judgment
notwithstanding the verdict are treated the same.”
Twin Chimneys Homeowners Ass’n v. J.E. Jones
Const. Co., 168 S.W.3d 488, 495 (Mo. App. E.D. 2005)
(citing Erdman v. Condaire, Inc., 97 S.W.3d 85, 88
(Mo. App. E.D. 2002)). We must determine “whether
the plaintiff made a submissible case.” Hodges v. City
of St. Louis, 217 S.W.3d 278, 279-80 (Mo. banc 2007)
(footnote omitted). “A case can be submitted only if
‘each and every fact essential to liability is predicated
upon legal and substantial evidence.’” Guidry v.
Charter Comm’ns, Inc., 269 S.W.3d 520, 527 (Mo. App.
E.D. 2008) (quoting Dhyne v. State Farm Fire & Cas.
Co., 188 S.W.3d 454, 456 (Mo. banc 2006)). “In
determining whether the plaintiff has made a
submissible case, we will view the evidence in the
light most favorable to the verdict, giving the plaintiff
the benefits of all reasonable inferences from the
verdict, and disregarding unfavorable evidence.” Id.
(citing Hodges, 217 S.W.3d at 280). We will only find
the plaintiff has failed to make a submissible case
where there is “a complete absence of probative fact to
support the jury’s conclusion.” Dhyne, 188 S.W.3d at
457. “A directed verdict is inappropriate ‘unless
reasonable minds could only find in favor of the
defendants.’” Guidry, 269 S.W.3d at 527 (quoting
Holtmeier v. Dayani, 862 S.W.2d 391, 395 (Mo. App.
E.D. 1993)).
Analysis
To make a submissible case for negligence, “a
plaintiff must show that ‘the defendant had a duty to
78a
protect him [or her] from injury, the defendant failed
to perform that duty, and the defendant’s failure
proximately caused his [or her] injury.” Poage v.
Crane Co., 523 S.W.3d 496, 508 (Mo. App. E.D. 2017)
(quoting Strong v. Am. Cyanamid Co., 261 S.W.3d
493, 506 (Mo. App. E.D. 2007)). To make a
submissible case for strict liability, a plaintiff must
show:
(1) the defendant sold a product in the course of its
business; (2) the product was then in a defective
condition, unreasonably dangerous when put to a
reasonably anticipated use; (3) the product was
used in a manner reasonably anticipated; and (4)
the plaintiff was damaged as a direct result of such
defective condition as existed when the product
was sold.
Id. “Under both strict liability and negligence
theories, the plaintiff is required to show a causal
connection between the defendant’s conduct and the
plaintiff’s injury.” Id. A prima facie showing of
causation requires the plaintiff to show the
defendant’s conduct was “more probably than not” a
cause of injury. Wagner, 368 S.W.3d at 350 (quoting
Sill v. Burlington N. R.R., 87 S.W.3d 386, 394 (Mo.
App. S.D. 2002)). Missouri requires showing two
types of causation: causation in fact (or “but for”
causation) and “proximate” causation. Poage, 523
S.W.3d at 508; see also Callahan v. Cardinal Glennon
Hosp., 863 S.W.2d 852, 863, 865 (Mo. banc 1993).
Defendants’ eighth point argues Plaintiffs failed to
establish Defendants’ Products were the cause in fact
of their ovarian cancer. Whether Defendants’
Products were the “cause in fact” of Plaintiffs’ ovarian
79a
cancer is a factual question left for the jury. Poage,
523 S.W.3d at 508. Under Missouri law, the plaintiff
must show the negligence of the defendant “directly
cause[d]” or “directly contribute[d] to cause” his or her
injury to establish causation in fact. Poage, 523
S.W.3d at 508. The plaintiff need not prove the
defendant’s negligence was “the exclusive cause” of
his or her injury. Wagner, 368 S.W.3d at 350-51.
Defendants argue there is an absence of probative
fact from which a jury could find for Plaintiffs on the
issue of causation because there is an “overwhelming
body of . . . epidemiological evidence” concluding there
is no causal relationship between cosmetic talc and
ovarian cancer. Defendants highlight evidence
favorable to them and ask us to conclude Plaintiffs
failed to make a submissible case of causation because
Plaintiffs presented no evidence “refut[ing] or
explain[ing]” Defendants’ evidence. However,
Defendants’ argument is fundamentally flawed.
First, it ignores our standard of review, which
requires us to “view the evidence in the light most
favorable to the verdict, giving the plaintiff the
benefits of all reasonable inferences from the verdict,
and disregarding unfavorable evidence.” Guidry, 269
S.W.3d at 527. Second, it suggests, without legal
support, that the only way Plaintiffs could make a
submissible case of causation in fact was by “refut[ing]
or explain[ing]” Defendants’ evidence.
The evidence, when viewed in the light most
favorable to the verdict, reveals Plaintiffs met their
burden to establish causation. Plaintiffs presented
testimony from several experts that asbestos causes
ovarian cancer and asbestos-containing talc causes
ovarian cancer. Plaintiffs’ expert Dr. Moline testified
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asbestos causes or significantly contributes to cause
ovarian cancer. She testified asbestos causes ovarian
cancer because it is microscopic in size, can travel
throughout the bloodstream and the body, and can be
found in every organ in the body, including the
ovaries. She testified her opinion is consistent with
the findings of the International Agency for Research
on Cancer (“IARC”), the American Cancer Society, the
U.S. Department of Health and Human Services, the
Environmental Protection Agency, and the National
Cancer Institute. Dr. Moline testified that, if a person
uses powder containing asbestos in their perineal
region, “it can travel into the peritoneal cavity” and
cause ovarian cancer. She testified if talc is “laced . .
. with asbestos,” the asbestos would be carried along
with the talc into the ovaries. Dr. Felsher also
testified at length about the role asbestos plays in
causing ovarian cancer. He testified asbestos causes
cancer cells to become invasive and spread through
the inflammation and irritation of the mesothelial
cells. He also testified about how asbestos makes
cancer more aggressive and therapy-resistant. In
addition, Plaintiffs’ expert Dr. Rosner testified several
scientific studies have reported a “link” between
asbestos and ovarian cancer and have associated
asbestos and talc-based products.
Plaintiffs also presented testimony from several
experts that the talc in Johnson’s Baby Powder
contained asbestos. In her deposition, Plaintiffs’
expert Dr. Blount testified she tested one bottle of
Johnson’s Baby Powder she purchased off-the-shelf
from a store and found it contained asbestos. Dr.
Longo similarly testified he tested thirty-six bottles of
Johnson’s Baby Powder and found twenty bottles
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contained asbestos. And Dr. Egilman testified there
is asbestos in Johnson’s Baby Powder after reading
nearly 1,400 studies conducted by the FDA, J&J, and
several other competitor companies.
Plaintiffs also presented testimony from Dr. Felsher
that exposure to asbestos-containing talc from
Defendants’ Products specifically caused Plaintiffs’
ovarian cancer. Dr. Felsher testified at length
regarding the personal histories of each Plaintiff and
their various risk factors for developing ovarian
cancer. He admitted certain risk factors, such as
genetic mutations, family history of cancer, an
endometriosis or polycystic ovarian syndrome
diagnosis, being overweight, and using certain
medications, increase the risk of developing ovarian
cancer. Dr. Felsher acknowledged cancer “can start in
a lot of ways.” But Dr. Felsher opined exposure to
asbestos “can act as gasoline” and cause cancer to
“become metastatic[ and] become[] resist[a]nt to
therapy.” He testified that, based on each of the
twenty-two Plaintiffs’ personal histories, asbestos
directly contributed to cause their ovarian cancer.
Defendants’ attacks on Plaintiffs’ expert’s testimony
regarding causation are simply that their conclusions
are “not yet established as fact in the scientific
community.” See Bonner v. ISP Techs., Inc., 259 F.3d
924, 932 (8th Cir. 2001) (rejecting a defendant’s
argument that an expert’s testimony regarding
causation should be excluded because it was “not yet
established as fact in the scientific community.”).
However, Defendants have not shown that any
scientific theories or studies indicate talc powders are
incapable of causing ovarian cancer. Indeed, they
admit in their brief the FDA has opined “a possible
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association” between cosmetic talc and ovarian cancer
“is difficult to dismiss” and the IARC has opined
“[p]erineal use of talc-based body powder is possibly
carcinogenic.”
Defendants could, and did, present their own expert
witnesses to counter Plaintiffs’ causation theory. “[I]t
is common that medical experts often disagree on . . .
causation,” and “questions of conflicting evidence
must be left for the jury’s determination.” See Hose v.
Chi. Nw. Transp. Co., 70 F.3d 968, 976 (8th Cir. 1995).
We cannot find there is a complete absence of
probative fact regarding the element of causation.
Based on the evidence Plaintiffs adduced at trial, a
jury could have reasonably found Defendants’
Products caused Plaintiffs’ injuries. Plaintiffs made a
submissible case for the jury, and the trial court
properly denied Defendants’ motions for directed
verdict and judgment notwithstanding the verdict.
Point VIII is denied.
IX: Clear and Convincing Evidence Justifying
Punitive Damages
In their ninth point, Defendants argue the trial
court erred in overruling their motions for directed
verdict and judgment notwithstanding the verdict on
Plaintiffs’ demand for punitive damages. Defendants
argue Plaintiffs failed to present clear and convincing
evidence that Defendants “knew or had reason to
know there was a high degree of probability that their
talc causes ovarian cancer” and “improperly
influenced” regulators, scientists, and the talc
industry. Thus, according to Defendants, punitive
damages were unwarranted.
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Standard of Review
“Whether sufficient evidence exists to support an
award of punitive damages is a question of law, which
we review de novo.” Poage, 523 S.W.3d at 515
(internal quotations omitted). “In reviewing a circuit
court’s overruling of a motion for directed verdict or
judgment notwithstanding the verdict, this Court
views the evidence in the light most favorable to the
verdict, gives the plaintiff all reasonable inferences,
and disregards all contrary evidence and inferences.”
Barron, 529 S.W.3d at 800 (citing Fleshner v. Pepose
Vision Institute, P.C., 304 S.W.3d 81, 95 (Mo. banc
2010)). “Only evidence that tends to support the
submission should be considered.” Blanks, 450
S.W.3d at 401.
Analysis
Under Missouri law, punitive damages may be
submitted to the jury if (1) some element of outrageous
conduct is demonstrated that (2) shows the defendant
acted with a “willful, wanton or malicious culpable
state.” Poage, 523 S.W.3d at 515. To recover punitive
damages, “[u]nder both negligence and strict liability
theories, the plaintiff must demonstrate that the
defendant showed a complete indifference to or
conscious disregard for the safety of others.” 25 Id.
25
In a negligence action, punitive damages may be awarded
only if the plaintiff shows the defendant “knew or had reason to
know a high degree of probability existed that the action would
result in injury. Poage v. Crane Co., 523 S.W.3d 496, 515 (Mo.
App. E.D. 2017) (emphasis added) (citing Letz v. Turbomeca
Engine Corp., 975 S.W.2d 155, 164-65 (Mo. App. W.D. 1997)). In
a strict liability action, the plaintiff must show “the defendant
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This claim must be proven by clear and convincing
evidence. Blanks, 450 S.W.3d at 400. “[C]lear and
convincing evidence is that which tilts the scales in
the affirmative when weighed against the evidence in
opposition; evidence which clearly convinces the fact
finder of the truth of the proposition to be proved.”
Cook v. Polineni, 967 S.W.2d 687, 690-91 (Mo. App.
E.D. 1998) (internal quotations omitted). In
determining whether a plaintiff has met his or her
burden, a court must consider
whether the evidence—giving full play to the
jury’s right to determine credibility, weigh the
evidence and draw justifiable inferences of
fact—is sufficient to permit a reasonable juror
to conclude that the plaintiff established with
convincing clarity—that is, that it was highly
probable—that the defendant’s conduct was
outrageous because of evil motive or reckless
indifference.
Peters v. Gen. Motors Corp., 200 S.W.3d 1, 25 (Mo.
App. W.D. 2006) (quoting Lopez-Vizcaino v. Action
Bail Bonds, Inc., 3 S.W.3d 891, 893 (Mo. App. W.D.
1999)). Where there are multiple defendants,
“[p]unitive damages are to be assessed against each
tortfeasor depending, among other facts, upon his
degree of culpability.” Heckadon v. CFS Enters., Inc.,
400 S.W.3d 372, 381 n.9 (Mo. App. W.D. 2013) (citing
Taylor v. Compere, 230 S.W.3d 606, 611 (Mo. App.
S.D. 2007)); Moore v. Shelton, 694 S.W.2d 500, 501
(Mo. App. S.D. 1985).
placed in commerce an unreasonably dangerous product with

actual knowledge of the product’s defect.” Id. (emphasis added).
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Viewing the evidence in the light most favorable to
the verdict, we find Plaintiffs proved with convincing
clarity that Defendants engaged in outrageous
conduct because of an evil motive or reckless
indifference. According to Plaintiffs’ evidence,
Defendants knew the Products, which they referred to
internally as their “company trust-mark,” “golden
egg,” and “sacred cow,” contained asbestos. In a 1969
memorandum, Defendants acknowledged their
Products contained tremolite asbestos and asbestos
could be dangerous. Defendants’ scientist T.M.
Thompson warned that, “until [there is] at least
substantial evidence . . . to the effect that the presence
of Tremolite in our talc does not produce adverse
effects, we should not extend its usage beyond an
absolute minimum.” Memoranda from the 1970s also
reveal Defendants knew the Products contained
tremolite asbestos. After Dr. Seymour Lewin,
“Consultant to the FDA,” reported asbestos in
samples of Defendants’ Products in 1972, Defendants
hired Walter C. McCrone Associates, Inc. (“McCrone”)
to examine the samples. McCrone confirmed the
samples contained tremolite. In 1975, McCrone
tested more samples of Defendant’s Products for
asbestiform minerals and found some contained
“rather high” levels of amphibole asbestiform fibers.
In an undated internal letter, Defendants’ scientist
Bill Ashton noted “[t]here are trace quantities [of
tremolite] present . . . . Levels are extremely low but
occasionally can be detected optically. This is not
new.” (emphasis added). A 1974 internal report found
“extremely low” levels of chrysotile were detected in
three samples of Johnson’s Baby Powder. A 1973
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internal memorandum, discussing one of Defendants’
mines, stated:
We should not rely on the ‘Clean Mine’
approach as a protective device for Baby
Powder in the current Asbestos or Asbestos-
Form controversy. We believe this mine to be
very clean; however, we are also confident that
fiber forming or fiber type minerals could be
found. The usefulness of the ‘Clean Mine’
approach for asbestos only is over.
According to Plaintiffs’ evidence, Defendants’
knowledge of asbestos in the Products continued into
the 1980s, 1990s, and well into the 2000s. In 1984, air
filters at one of Defendants’ mines were tested by the
Mine Safety and Health Administration (“MSHA”).
MSHA found the air filters contained “5.8%
anthophyllite, an asbestiform amphibole.” In 1998, an
internal letter showed Defendants consulted with Dr.
Blount, a PhD mineralogist, who tested a talc sample
from Defendants’ Vermont mine and alerted
Defendants she “believe[d] that Johnson & Johnson’s
Vermont talc contains trace amounts of asbestos
which are well below those specified by OSHA.” At
trial, Dr. Blount testified Defendants’ Products have
contained asbestos since the 1970s or earlier. In 2003,
Defendants’ talc supplier Luzenac America Technical
Center reported it detected tremolite in a sample of
Defendants’ talc. In 2004, Hayward Laboratory also
reported a sample of Johnson’s Baby Powder
contained asbestos. Plaintiffs even produced evidence
that Defendants’ website initially touted their “talc-
based consumer products have always been asbestos
free” but was later edited to read their “talc-based
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products are asbestos free” because they admitted
they could not “say ‘always.’” (emphasis added).
According to Plaintiffs’ evidence, Defendants also
knew of the potential safety hazards caused by the
presence of asbestos in cosmetic talc products. In
1972, FDA representatives, the Cosmetic Talc and
Fragrance Association (“CTFA”), J&J, and others
attended a meeting to discuss the preliminary results
of an analysis of over 100 talc-containing cosmetic
products for asbestos contamination. A memorandum
summarizing that meeting noted, “There was no
disagreement between FDA and industry scientists
present at this meeting about the potential safety
hazard that the presence of asbestos in talc containing
cosmetic product poses to the consumer.” And
Defendants’ talc supplier Rio Tinto Minerals warned
Defendants in the 2000s that, “[b]ecause there is no
recognized ‘safe’ level of exposure to asbestos, the
presence of any amount in talc would be a serious
problem.”
In the 1970s, Defendants addressed several
alternative methods that could remove fibers from
talc “to better protect [their] powder franchise,”
including the substitution of cornstarch for talc in the
Products. Defendants acknowledged cornstarch, “by
its very nature does not contain fibers. Furthermore,
it is assimilated by the body.” Defendants noted
investigating replacing talc with cornstarch should
“receive top priority.” However, Defendants also
noted such a replacement would require them to
develop explosion proof facilities and undergo
merchandising changes. The other alternative
methods discussed by Defendants included improving
the flotation technique used to separate talc from
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asbestos and using a process to remove a large portion
of the fine particles found in talc. However,
Defendants noted that, under these latter approaches,
“no final product will ever be made which will be
totally free from respirable particles. We are talking
about a significant reduction in fine particle count but
not 100% clean-up.” In 2008, an internal email
revealed Defendants discussed replacing talc with
cornstarch in the Products but were reluctant to do so
because it would be costly. In an email, one Defendant
employee urging the use of cornstarch instead of talc
stated:
Basically, I’m thinking it would be in the
brand’s best interest to develop a strategy to
move out of the baby aisle for our talc product
and either create a direct Adult proposition or
simply replace the talc ingredient with
cornstarch. This would align with our Best for
Baby charter.
I understand this is a $70M business in the US
alone, unsupported. So any changes are risky.
However, given a number of other ingredient
issues we are facing, this seems like an easy fix
and win. I know this will be controversial and
we’ll need to work hard to justify the cost
implications – I also see great positives
associated with it in our challenge to maintain
Mom’s trust and deliver on our baby expertise.
(emphasis added).
Plaintiffs’ evidence further showed Defendants
worked tirelessly to ensure the industry adopted
testing protocols not sensitive enough to detect
89a
asbestos in every talc sample. In the 1970s,
Defendants recommended the FDA adopt their “J-41”
method of testing for asbestos in cosmetic talc
products. The J-41 method uses an x-ray diffraction
instrument to detect asbestos in a talc sample. Only
if the x-ray diffraction instrument detects an
amphibole mineral is the talc sample is further
analyzed under polarized light microscopy to
determine whether asbestos is present.
Over several years, Defendants consistently found
the Products contained no asbestos using the J4-1
method. However, another method for testing
cosmetic talc for asbestos existed and Defendants
knew it: the “pre-concentration method.” The pre-
concentration method separates talc particles from
asbestos particles so imaging equipment can
accurately display the amount of asbestos present in
a talc sample. The process involves placing a talc
sample in a heavy liquid and using a centrifuge to
separate the talc particles from the asbestos particles.
The talc particles float, while the asbestos particles
sink. This technique prevents asbestos from “hiding”
behind talc particles and enhances imaging
equipment’s ability to detect asbestos.
Defendants admitted in an internal company
document that using “concentrating techniques
w[ould] permit a good laboratory to identify asbestos
or tremolite in a talc sample.” And, in the early 1970s,
Defendants used the pre-concentration method to test
samples of their Products for asbestos and detected
tremolite. But Defendants deliberately chose not to
use the pre-concentration method when testing the
Products for asbestos because they feared doing so
would cause too much asbestos to be detected.
90a
Internal documents revealed Defendants decided not
to adopt the pre-concentration method because the
pre-concentration method made it “possible to arrive
at levels of detectability of asbestos in talc in the
[parts per million] range” and would likely “be too
sensitive.”
Defendants then aggressively recommended the
FDA adopt the J-41 method and not the pre-
concentration method as the industry standard for
asbestos testing in talc. Internal documents revealed
Defendants did so to protect their own interests:
• “[I]t looks like the FDA is getting into separation
and isolation methodology which will mean
concentration procedures . . . . [T]here are many
talcs on all markets which will be hard pressed
in supporting purity claims, when ultra
sophisticated assay separation and isolation
techniques are applied. Chances are that this
FDA proposal will open up new problem areas
with asbestos and talc minerals.”
• “We believe it is critical for the C.T.F.A. to now
recommend [the J-41 method] to the F.D.A.
before the art advances to more sophisticated
techniques with higher levels of sensitization.
We deliberately have not included a
concentration technique as we felt it would not
be in worldwide company interests to do this.”
Plaintiffs adduced additional evidence that
Defendants published articles downplaying the safety
hazards associated with talc through deception
without revealing their funding. For example,
Defendants hid the fact they funded a 2008 article by
91a
Joshua Muscat and Michael Huncharek that
concluded there is no indication cosmetic talc causes
cancer. Plaintiffs also adduced evidence that
Defendants attempted to discredit scientists who
published or sought to publish unfavorable studies
regarding their Products. For example, after
Defendants learned the Dutch Consumer
Organization reported asbestos in the Products in
1973, Defendants asked the Dutch Consumer
Organization “not to make any publications about
asbestos in baby powder[ ] before [Defendants] agreed
with their findings.” And, after the Mount Sinai
School of Medicine published findings Defendants
deemed “hostile” regarding asbestos in Johnson’s
Baby Powder in 1975, Defendants demanded those
findings be “immediate[ly] removed” from materials
being disseminated at an occupational health
conference. The following year, Defendants pressured
Mount Sinai to retract the results of its study and
issue a press release to that effect. Defendants noted
Mount Sinai did so “reluctantly.”
A reasonable inference from all this evidence is that,
motivated by profits, Defendants disregarded the
safety of consumers despite their knowledge the talc
in their Products caused ovarian cancer. The jury,
exercising its “right to determine credibility, weigh
the evidence and draw justifiable inferences of fact,”
could have reasonably concluded it was highly
probable Defendants’ conduct “was outrageous
because of evil motive or reckless indifference” based
on this evidence. See Peters, 200 S.W.3d at 25.
Defendants’ arguments to the contrary are
unavailing. First, Defendants argue punitive
damages were unwarranted because several studies
92a
and reports concluded their Products contained no
asbestos. To support their argument, Defendants cite
to a host of evidence presented in their case-in-chief
that many public health agencies have found there is
insufficient evidence to conclude cosmetic talc causes
ovarian cancer; the FDA has found no warning labels
should be required on cosmetic talc products; several
epidemiological studies found no association between
cosmetic talc and ovarian cancer; many any
regulatory agencies and laboratories have found no
asbestos in the Products; and Defendants’ routine
testing measures detected no asbestos in the
Products. These arguments ask us to entertain
evidence and inferences from the evidence contrary to
the jury’s verdict, defying our standard of review. See
Barron, 529 S.W.3d at 800.
Second, Defendants contend their adherence to the
J4-1 method for asbestos testing fully complied with
and exceeded industry standards and, thus, could not
rise to the level of “evil motive or reckless indifference
to the rights of others.” They argue “Plaintiffs’
proposed concentration method has been known since
the 1970s and no public-health agency has ever
adopted it, including EPA, NIOSH, OSHA, and U.S.
Pharmacopeia”; thus, punitive damages are
unwarranted. However, our Court has held “mere
compliance with industry standards” is not enough to
prevent a trial court from finding a plaintiff made a
submissible case for punitive damages. See Ellis v.
Kerr-McGee Chemical, L.L.C., No. ED 74835, 1999
WL 969278, at *3-4 (Mo. App. E.D. Oct. 26, 1999)
(holding a plaintiff made a submissible case for
punitive damages in a negligence case despite a
defendant’s argument it complied with industry
93a
standards). Further, Plaintiffs adduced compelling
evidence suggesting they improperly influenced the
industry, causing it to adopt a deficient testing
standard. A reasonable jury could find such actions
outrageous. See Blanks, 450 S.W.3d at 403 (holding
plaintiffs made a submissible case for punitive
damages in a mass tort case where plaintiffs adduced
evidence “the defendants hid information from
regulators[ and] resisted regulatory changes).
Last, Defendants urge we must find no clear and
convincing evidence exists that Defendants engaged
in conduct that was outrageous because of evil motive
or reckless indifference because other courts have so
held in other cases where they were named
defendants. They cite Johnson & Johnson Talcum
Powder Cases, wherein the California Court of
Appeals held the plaintiffs did not make a submissible
case for punitive damages where no regulatory agency
or scientific experts had drawn a causal connection
between perineal talc use and ovarian cancer. 37 Cal.
App. 5th 292, 333 (Cal. Ct. App. 2019). They also cite
In re Johnson & Johnson Talcum Powder Cases, No.
BC628228, 2017 WL 4780572, at *16 (Cal. Super. Oct.
20, 2017), wherein the Superior Court of California
held the plaintiffs did not make a submissible case for
punitive damages where the evidence they presented
suggested no more than “an on-going debate in the
scientific and medical community about whether talc
more probably than not causes ovarian cancer.”
These decisions are persuasive authority at best.
“Out of state appellate decisions do not constitute
controlling precedent in Missouri courts.” Grillo v.
Glob. Patent Grp. LLC, 471 S.W.3d 351, 356 (Mo. App.
E.D. 2015) (alterations omitted) (quoting Craft v.
94a
Philip Morris Cos., Inc., 190 S.W.3d 368, 380 (Mo.
App. E.D. 2005)). “While cases from other
jurisdictions ‘can provide useful and insightful
guidance,’ they ‘are not conclusive or binding
precedent.’” State v. McIntosh, 540 S.W.3d 418, 425
n.5 (Mo. App. W.D. 2018) (quoting State ex rel. Safety
Roofing Sys., Inc. v. Crawford, 86 S.W.3d 488, 493 n.4
(Mo. App. S.D. 2002)). Even so, the California cases
are factually distinguishable. In both cases, no
evidence was adduced that samples of Defendants’
Products contained asbestos or Defendants sought to
conceal this fact by persuading the industry to adopt
the J-41 method rather than a pre-concentration
testing method. Here, new evidence was adduced that
samples of Defendants’ Products contained asbestos
and Defendants sought to persuade the industry to
adopt the less sensitive J-41 method rather than a
pre-concentration testing method. As outlined above,
the evidence adduced in this trial showed clear and
convincing evidence Defendants engaged in conduct
that was outrageous because of evil motive or reckless
indifference.
We hold Plaintiffs made a submissible case for
punitive damages against Defendants. Therefore, the
trial court did not err in overruling Defendants’
motions for directed verdict and judgment
notwithstanding the verdict.
Point IX is denied.
X: Punitive Damages
In their final point, Defendants argue the trial court
erred in denying their motion to vacate or remit the
jury’s punitive damages award because the award
95a
violates due process under both the United States and
Missouri Constitutions. Defendants argue the jury’s
$4.14 billion punitive damages award is grossly
excessive and arbitrary, furthering no legitimate
purpose. Defendants also argue the jury’s $4.14
billion punitive damages award impermissibly
punished J&J for injuries to “nonparties.”
Standard of Review
Appellate courts review constitutional challenges to
a punitive damages award de novo. State Farm Mut.
Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003).
“[A]lthough the determination on punitive damages is
‘a function primarily left for the jury,’ we must ensure
that the award does not infringe upon a defendant’s
constitutional rights.’” Poage, 523 S.W.3d at 522
(citing Kelly v. Bass Pro Outdoor World, LLC, 245
S.W.3d 841, 850 (Mo. App. E.D. 2007)). “Exacting
appellate review ensures that an award of punitive
damages is based upon ‘an application of law, rather
than a decisionmaker’s caprice.’” Campbell, 538 U.S.
at 418 (internal quotations omitted) (quoting Cooper
Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S.
424, 436 (2001)).
Analysis
“Although compensatory damages and punitive
damages are typically awarded at the same time by
the same decisionmaker, they serve distinct
purposes.” See Cooper Indus., Inc., 532 U.S. at 432;
Campbell, 538 U.S. at 416. Where compensatory
damages are imposed to “redress the concrete loss
that the plaintiff has suffered by reason of the
defendant’s wrongful conduct,” punitive damages are
96a
imposed for purposes of “deterrence and retribution.”
Campbell, 538 U.S. at 416 (internal quotations and
citations omitted). “Essentially, punitive damages are
meant to ‘serve the same purposes as criminal
penalties.’” Poage, 523 S.W.3d at 520 (quoting
Campbell, 538 U.S. at 417). Punitive damages
awards, however, cannot be imposed without
adherence to constitutional limitations. Campbell,
538 U.S. at 416. The Due Process Clause of the
Fourteenth Amendment prohibits grossly excessive
damage awards. Id. “To the extent an award is
grossly excessive, it furthers no legitimate purpose
and constitutes an arbitrary deprivation of property.”
Id. at 417.
No “simple mathematical formula” exists to help us
determine whether a punitive award is grossly
excessive; “the relevant constitutional line is
‘inherently imprecise.’” Krysa v. Payne, 176 S.W.3d
150, 156 (Mo. App. W.D. 2005) (quoting Cooper Indus.,
Inc., 532 U.S. at 434-35). “To satisfy due process, the
amount of punitive damages should reflect the extent
of the defendant’s offense and be related to the
resulting actual or potential harm.” Blanks, 450
S.W.3d at 410. To ensure a punitive damages award
comports with due process, the United States
Supreme Court has instructed appellate courts to
consider three guideposts: “(1) the degree of
reprehensibility of the defendant’s misconduct; (2) the
disparity between the actual or potential harm
suffered by the plaintiff and the punitive damages
award; and (3) the difference between the punitive
damages awarded by the jury and the civil penalties
authorized or imposed in comparable cases.”
97a
Campbell, 538 U.S. at 418 (citing BMW of North Am.,
Inc. v. Gore, 517 U.S. 559, 575 (1996)).
In weighing these guideposts, “the most important
indicium of the reasonableness of a punitive damages
award is the degree of reprehensibility of the
defendant’s conduct.” Campbell, 538 U.S. at 419
(alterations omitted) (citing Gore, 517 U.S. at 575).
Reprehensibility of the defendant’s conduct is
determined by considering several factors, including
whether:
the harm caused was physical or economic; the
tortious conduct evinced an indifference to or a
reckless disregard of the health or safety of
others; the targets of the conduct had financial
vulnerability; the conduct involved repeated
actions or was an isolated incident; and the
harm was the result of intentional malice,
trickery, deceit, or mere accident.
Id. (citing Gore, 517 U.S. at 576-77). In evaluating the
reprehensibility of JJCI’s actions, “we view the
evidence and all reasonable inferences in the light
most favorable to the verdict and disregard all
contrary evidence and inferences.” Krysa, 176 S.W.3d
at 157.
We find there was significant reprehensibility in
Defendants’ conduct. The harm suffered by Plaintiffs
was physical, not just economic. Plaintiffs each
developed and suffered from ovarian cancer.
Plaintiffs underwent chemotherapy, hysterectomies,
and countless other surgeries. These medical
procedures caused them to experience symptoms such
as hair loss, sleeplessness, mouth sores, loss of
98a
appetite, seizures, nausea, neuropathy, and other
infections. Several Plaintiffs died, 26 and surviving
Plaintiffs experience recurrences of cancer and fear of
relapse. All Plaintiffs suffered mentally and
emotionally. Their ovarian cancer diagnoses caused
them constant worry and fear.
After considering the substantial evidence
presented by Plaintiffs that Defendants discussed the
presence of asbestos in their talc in internal
memoranda for several decades; avoided adopting
more accurate measures for detecting asbestos and
influenced the industry to do the same; attempted to
discredit those scientists publishing studies
unfavorable to their Products; and did not eliminate
talc from the Products and use cornstarch instead
because it would be more costly to do so, the jury found
Defendants knew of the asbestos danger in their
Products when they were sold to the public. This
finding supports that Defendants’ exposure of
consumers to asbestos over several decades was done
with reckless disregard of the health and safety of
others.
“The second and perhaps most commonly cited
indicium of an unreasonable or excessive punitive
damages award is its ratio to the actual harm inflicted
on the plaintiff.” Gore, 517 U.S. at 580. The United
States Supreme Court has advised “a comparison
between the compensatory award and the punitive
26
During the pendency of this appeal alone, Plaintiffs Gail
Ingham, Annette Koman, Toni Roberts, Andrea Lynn Schwartz-
Thomas, and Olga Salazar have died. Suggestions of Death and
Motions for Substitution were filed on their behalf, all of which
were granted by this Court.
99a
award is significant.” Id. However, there is no
“mathematical bright line between the
constitutionally acceptable and the constitutionally
unacceptable that would fit every case.” Id. Instead,
“[w]hether the disparity between punitive damages
and the harm caused violates due process is
determined on a case-by-case basis” and should be
guided by “a general concern of reasonableness.”
Poage, 523 S.W.3d at 523 (first quotation); Gore, 517
U.S. at 583 (second quotation) (alterations omitted)
(quoting TXO Prod. Corp. v. All. Res. Corp., 509 U.S.
443, 458 (1993)). “[T]he precise award in any case
‘must be based on the peculiar facts and
circumstances of the defendant’s conduct and the
harm to the plaintiff.’” Blanks, 450 S.W.3d at 411
(quoting Campbell, 538 U.S. at 425). “[F]ew awards
exceeding a single-digit ratio between punitive and
compensatory damages, to a significant degree, will
satisfy due process.” Campbell, 538 U.S. at 425.
“Single-digit multipliers are more likely to comport
with due process, while still achieving the State’s
goals of deterrence and retribution, than awards with
ratios in the range of 500 to 1.” Id. (citing Gore, 517
U.S. at 582).
Here, the jury awarded $550 million in actual
damages ($25 million multiplied by twenty-two
Plaintiffs) jointly and severally against Defendants.
The jury recommended, and the trial court awarded,
$990 million in punitive damages against JJCI and
$3.15 billion against J&J, yielding ratios of 1.8:1 for
JJCI and 5.72:1 for J&J.27
27
We have calculated these ratios in accordance with the
Missouri Supreme Court’s approach in Lewellen v. Franklin, 441
100a
However, in Point III we held the trial court erred in
exercising personal jurisdiction over JJCI on two Non-
Resident Plaintiffs’ claims and over J&J on all
seventeen Non-Resident Plaintiffs’ claims. “[A]ny
judgment entered without personal jurisdiction over a
party is void.” Focus Bank, 504 S.W.3d at 907.
Therefore, JJCI is liable for $500 million in actual
damages ($25 million multiplied by twenty Plaintiffs)
and J&J is jointly and severally liable for $125 million
in actual damages with JJCI ($25 million multiplied
by five Plaintiffs).
Given our reduction of actual damages, we must
reduce the punitive damages awards against
Defendants proportionally to “reflect the ratio of
punitive to actual damages assessed originally by the
trial court.” See Ogilvie v. Fotomat Corp., 641 F.2d
581, 586-87 (8th Cir. 1981) (reducing punitive
damages awards proportionally to reflect the
reduction of actual damages awarded to plaintiffs); see
also Senn v. Manchester Bank of St. Louis, 583 S.W.2d
119, 138-39 (Mo. banc 1979) (same). This approach
ensures the original judgment of the jury is given
effect, while excessive damage awards are avoided.
Ogilvie, 641 F.2d at 587.
Because we determined there is personal
jurisdiction over JJCI on twenty of the twenty-two
Plaintiffs’ claims, we reduce the punitive damages
award against JJCI to $900 million. Because we
determined there is personal jurisdiction over J&J on
S.W.3d 136 (Mo. banc 2014). In Lewellen, the court divided each
individual punitive damages award by the entire actual damages
award where defendants were jointly and severally liable for all
actual damages.
101a
five of the twenty-two Plaintiffs’ claims, we reduce the
punitive damages award against J&J to
$715,909,091. 28 The adjusted actual damages
amounts and punitive damages amounts yield ratios
of 1.8:1 for JJCI and 5.72:1 for J&J. These ratios, as
adjusted, are well within the limits of punitive
damages consistently upheld. See e.g., Barnett v. La
Societe Anonyme Turbomeca France, 963 S.W.2d 639,
661 (Mo. App. W.D. 1997), overruled on other grounds
by Badahman v. Catering St. Louis, 395 S.W.3d 29
(Mo. banc 2013) (upholding a 3:1 ratio); Poage, 523
S.W.3d at 523-24 (upholding a 6:1 ratio); Mansfield v.
Horner, 443 S.W.3d 627, 645-46 (Mo. App. W.D. 2014)
(upholding a 11:1 ratio); Bogle v. McClure, 332 F.3d
1347, 1362 (11th Cir. 2003) (upholding a 4:1 ratio);
Gibson v. Moskowitz, 523 F.3d 657, 665 (6th Cir. 2008)
(upholding a 2:1 ratio); Brand Mktg. Grp. LLC v.
Intertek Testing Servs., N.A., Inc., 801 F.3d 347, 366
(3d Cir. 2015) (upholding a 5:1 ratio).
Defendants claim a punitive damages ratio of 1:1 is
the “outermost” constitutional limit in cases where
the jury has awarded “substantial damages.”
Defendants cite several federal appellate decisions
that have remitted punitive damages awards from
higher ratios to a 1:1 ratio when “substantial”
compensatory damages were awarded. See e.g.,
Lompe v. Sunridge Partners, LLC, 818 F.3d 1041
(10th Cir. 2016); Boerner v. Brown & Williamson
Tobacco Co., 394 F.3d 594 (8th Cir. 2005); and Morgan
v. New York Life Ins. Co., 559 F.3d 425 (6th Cir. 2009).
However, “[w]hile an appellate court can look to other
decided cases for guidance, they are often not
28
This figure has been rounded to the nearest dollar amount.
102a
determinative, for each case presents its own peculiar
facts and circumstances which must be evaluated.”
Barnett, 963 S.W.2d at 661.
The United States Supreme Court has stated,
“When compensatory damages are substantial, then a
lesser ratio, perhaps only equal to compensatory
damages, can reach the outermost limit of the due
process guarantee.” Exxon Shipping Co. v. Baker, 554
U.S. 471, 501 (2008) (internal alterations and
quotations omitted). However, the Court has also
emphasized “there are no rigid benchmarks that a
punitive damages award may not surpass.”
Campbell, 538 U.S. at 425; see also TXO Prod. Corp.,
509 U.S. at 462 (upholding a ratio as high as 526:1).
We find the ratios of 1.8:1 for JJCI and 5.72:1 for J&J
appropriate, given the facts and circumstances before
us.
“High-ratio punitive damage awards are sometimes
necessary in order to have a sufficient deterrent
effect.” See Blanks, 450 S.W.3d at 411. Indeed, “[a]
much larger amount of punitive damages is required
to have a deterrent effect on a multi-billion dollar
corporation than a smaller business.” Poage, 523
S.W.3d at 524. “[A] larger punitive damages award is
justified to promote Missouri’s legitimate interest of
deterring companies from putting unreasonably
dangerous products into our State’s stream of
commerce.” Id.
Because Defendants are large, multi-billion dollar
corporations, we believe a large amount of punitive
damages is necessary to have a deterrent effect in this
case. However, based on the evidence, we believe a
larger amount of punitive damages is needed to deter
103a
J&J’s conduct than JJCI’s conduct. While both
corporations are multi-billion dollar corporations,
J&J’s net worth is considerably larger than JJCI’s net
worth. At trial, Defendants stipulated JJCI’s net
worth is $13.3 billion and J&J’s net worth is $63.2
billion. Furthermore, Defendants’ decision to chart
their course of reprehensible conduct began with J&J
long before JJCI was spun off as a separate entity in
1979 and engaged in reprehensible conduct of its own.
Given this evidence, the higher ratio of 5.72:1 for J&J
is justified.
“Regardless of culpability, however, heavier
punitive awards have been thought to be justifiable
when wrongdoing is hard to detect.” Id.; see also Gore,
517 U.S. at 582 (“A higher ratio may also be justified
in cases in which the injury is hard to detect or the
monetary value of noneconomic harm might have
been difficult to determine.”). It is impossible to place
monetary value on the physical, mental, and
emotional anguish Plaintiffs suffered because of their
injury caused by Defendants. In addition, Plaintiffs
adduced evidence ovarian cancer can take many years
to develop after exposure to an asbestos-containing
product. The time between the use of Defendants’
asbestos-containing Products and the manifestation
of symptoms of ovarian cancer makes it difficult to
detect the harm they suffered. See Poage, 523 S.W.3d
at 524. Given these facts and circumstances, the
ratios of 1.8:1 for JJCI and 5.72:1 for J&J are
reasonable and comply with due process.
Under the third guidepost, we must evaluate “the
disparity between the punitive damages award and
the ‘civil penalties authorized or imposed in
comparable cases.’” Campbell, 538 U.S. at 428
104a
(quoting Gore, 517 U.S. at 575). However, as the
parties agree, “violations of common law tort duties
often do not lend themselves to a comparison with
statutory penalties.” See Lompe, 818 F.3d at 1070; see
also Campbell v. State Farm Mut. Auto. Ins. Co., 98
P.3d 409, 419 (Utah 2004) (“[T]he quest to reliably
position any misconduct within the ranks of criminal
or civil wrongdoing based on penalties affixed by the
legislature can be quixotic.”). Accordingly, “This
factor ‘is accorded less weight in the reasonableness
analysis than the first two guideposts.’” Krysa, 176
S.W.3d at 163 n.7 (quoting Kemp v. Am. Tel. & Tel.,
Co., 393 F.3d 1354, 1364 (11th Cir. 2004)).
“[T]he Missouri legislature has authorized . . . civil
and criminal sanctions for cases of fraud and
concealment.” Grabinski v. Blue Springs Ford Sales,
Inc., 203 F.3d 1024, 1026 (8th Cir. 2000). For
example, section 407.100.6 authorizes a civil penalty
of up to $1,000 for each violation, and section
407.020.3 provides that a person who “with the intent
to defraud,” willfully and knowingly engages” in any
violation of the MMPA is guilty of a class E felony,
which is punishable by up to four years in prison and
a fine of up to $10,000. Id. (citing §§ 407.100.6,
407.020.3); see also § 558.002.1(1) (providing “a person
who has been convicted of an offense may be
sentenced to pay a fine which does not exceed . . . ten
thousand dollars[.]”); § 558.011.1(5) (providing the
term of imprisonment for a class E felony cannot
exceed four years). The punitive damages awards
here, as adjusted, are significantly larger than the
penalties authorized under the MMPA. However, this
is not dispositive in our analysis of whether the
punitive damage awards against Defendants are
105a
grossly excessive. See Lewellen v. Franklin, 441
S.W.3d 136, 148 (Mo. banc 2014) (finding a $2 million
punitive damages award was not grossly excessive
despite the fact the punitive damages award exceeded
the penalties authorized under the MMPA).
Considering all three guideposts, we find the
punitive damages awards assessed against
Defendants, as adjusted, are not grossly excessive
considering Defendants’ actions of knowingly selling
Products that contained asbestos to consumers.
“Under Rule 84.14, this Court may enter the judgment
the trial court should have entered.” City of De Soto
v. Nixon, 476 S.W.3d 282, 291 (Mo. banc 2016); see
also Rule 84.14. Accordingly, we enter judgment for
$500 million in actual damages against JJCI and $125
million in actual damages against J&J jointly and
severally with JJCI. We further enter judgment for
$900 million in punitive damages against JJCI and
$715,909,091 in punitive damages against J&J.
Point X is denied as modified.
Conclusion
The judgment against JJCI is reversed in part on
the claims of the two Non-Resident Plaintiffs, Allan
Koman on behalf of Annette Koman and Marcia
Owens, who only used Johnson’s Baby Powder and
denied using Shimmer for lack of personal
jurisdiction. The judgment against J&J is reversed in
part as to all seventeen Non-Resident Plaintiffs for
lack of personal jurisdiction.
Because no further adjudication is necessary, this
Court may give such judgment as ought to be given
under Rule 84.14. See Nixon, 476 S.W.3d at 291.
106a
Accordingly, this Court enters judgment under Rule
84.14 against JJCI for $500 million in actual damages
and J&J for $125 million jointly and severally with
JJCI to reflect the proportional loss of the two Non-
Resident Plaintiffs from JJCI’s actual damages award
and the proportional loss of the seventeen Non-
Resident Plaintiffs from J&J’s actual damages award,
as discussed in Point III. We further enter judgment
under Rule 84.14 against JJCI for $900 million in
punitive damages and against J&J for $715,909,091
in punitive damages to reflect the proportional loss of
the two Non-Resident Plaintiffs from JJCI’s punitive
damages award and the proportional loss of the
seventeen Non-Resident Plaintiffs from J&J’s
punitive damages award. In all other respects, the
judgment is affirmed as modified.
/s/ Philip M. Hess
Philip M. Hess, Presiding Judge
Kurt S. Odenwald, J. and

Lisa P. Page, J. concur.
107a
APPENDIX B
_________
STATE OF MISSOURI
_________
CITY OF ST. LOUIS
_________
MISSOURI CIRCUIT COURT
TWENTY-SECOND JUDICIAL CIRCUIT
_________
GAIL LUCILLE INGHAM, et al.,
Plaintiffs,
vs.
JOHNSON & JOHNSON, et al.,

Defendants.
_________
Cause No. 1522-CC10417-01
_________
Division No. 10
_________
Filed: December 19, 2018
_________
ORDER
_________
The Court has before it Defendants’ Johnson &

Johnson and Johnson & Johnson Consumer Inc.’s
motion for judgment notwithstanding the verdict,
motion for new trials, and motion for new trials on
damages or request for remittitur. The Court now
rules as follows.
108a
All parties were given a full and fair opportunity to
adduce evidence and present argument over the
course of a six week jury trial. Following the trial, a
verdict was entered in favor of Plaintiffs and against
Defendants.
Motion for Judgment Notwithstanding the
Verdict
Defendants move for a judgment notwithstanding
the verdict on all of Plaintiffs’ claims. Defendants
contend that the Court lacks jurisdiction over them,
that venue is improper, that Plaintiffs did not prove
causation, that Plaintiffs failed to prove their failure
to warn claims, that Plaintiffs’ claims are barred by
the applicable statutes of limitation, that Plaintiffs’
claims fail for other claim-specific reasons, and that
Plaintiffs failed to proffer sufficient evidence to
support the verdict on punitive damages claims. In
addition, Defendant Johnson & Johnson separately
argues that it is entitled to judgment notwithstanding
the verdict as to the claims of Plaintiffs Andrea
Schwartz Thomas, Marcia Owens and Sheila Brooks,
because they failed to present evidence that they used
the products at issue before 1979.
Rule 72.01(b) states:
Motion for Judgment Notwithstanding the
Verdict. A party may move for a directed verdict
at the close of all the evidence. Whenever such
motion is denied or for any reason is not
granted, the court is deemed to have submitted
the action to the jury subject to a later
determination of the legal questions raised by
the motion. Not later than thirty days after
109a
entry of judgment, a party who has moved for a
directed verdict may move to have the verdict
and any judgment entered thereon set aside
and to have judgment entered in accordance
with the motion for a directed verdict; or if a
verdict was not returned, such party, within
thirty days after the jury has been discharged,
may move for judgment in accordance with the
motion for a directed verdict. A motion for a
new trial may be joined with this motion, or a
new trial may be prayed for in the alternative.
If a verdict was returned the court may allow
the judgment to stand or may reopen the
judgment and either order a new trial or direct
the entry of judgment as if the requested
verdict had been directed. If no verdict was
returned the court may direct the entry of
judgment as if the requested verdict had been
directed or may order a new trial.
A motion for judgment notwithstanding the verdict
presents the question of “whether a submissible case
was made.” Smith v. Brown & Williamson Tobacco
Corp., 275 S.W.3d 748, 759 (Mo. App. W.D.
2008)(citing Payne v. Cornhusker Motor Lines, Inc.,
177 S.W.3d 820, 832 (Mo. App. E.D. 2005)). “To
determine whether the evidence was sufficient to
support the jury’s verdict, an appellate court views the
evidence in the light most favorable to the verdict and
the plaintiff is given the benefit of all reasonable
inferences. Conflicting evidence and inferences are
disregarded.” Keveney v. Mo. Military Acad., 304
S.W.3d 98, 104 (Mo. banc 2010). “The jury’s verdict
will be reversed only if there is a complete absence of
probative facts to support the jury’s conclusion.” Id. “A
110a
judgment notwithstanding the verdict is a drastic
action that can only be granted if reasonable persons
cannot differ on the disposition of the case.” Delacroix
v. Doncasters, Inc., 407 S.W.3d 13, 39 (Mo. App. E.D.
2013).
The Court finds that it should deny Defendants’
motion for judgment notwithstanding the verdict.
Many of Defendants’ arguments have been addressed
in prior orders of this Court and will be addressed
briefly herein.
This Court has addressed Defendants’ arguments
related to jurisdiction in its prior orders. The Court
finds that it has specific personal jurisdiction over
Defendants under controlling precedent. See Bristol-
Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773,
1779 (U.S. June 19, 2017); Bryant v. Smith Interior
Design Grp., Inc., 310 S.W.3d 227, 231 (Mo. banc
2010). Plaintiffs have established facts adequate to
invoke Missouri’s long-arm statute and that support a
finding of minimum contacts with Missouri sufficient
to satisfy due process. The lawsuit arises out of and
relates to Defendants’ contacts with Missouri.
This Court has addressed Defendants’ arguments
related to venue in its prior orders. Venue is proper in
this case under Section 508.010 RSMo.
Defendants contend that Plaintiffs failed to proffer
reliable expert evidence of causation. The Court finds
that the evidence presented on this issue was
sufficient to support the jury’s verdict. This Court
found that Plaintiffs’ expert witnesses were qualified
to offer their opinions and their testimony was
relevant and admissible under Section 490.065 RSMo.
111a
The evidence presented at trial includes the testimony
of Plaintiffs’ expert witnesses, evidence of the testing
of the products at issue, including Defendants’ own
testing, Defendants’ correspondence and the
testimony of Defendant’s corporate representative
and chief medical officer. This evidence satisfies the
standards for causation under all applicable state law.
See e.g. Scapa Dryer Fabrics, Inc. v. Knight, 788
S.E.2d 421 (Ga. 2016); In re New York City Asbestos
Litig., 48 Misc. 3d 460, 473 (N.Y. Sup. Ct. 2015);
Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332, 336-
37 (Tex. 2014); Ford Motor Co. v. Boomer, 736 S.E.2d
724, 732 (Va. 2013); Gregg v. V-J Auto Parts, Co., 943
A.2d 216, 225 (Pa. 2007); Langness v. Fencil Urethane
Sys., Inc., 667 N.W.2d 596, 606 (N.D. 2003); Benshoof
v. Nat’l Gypsum Co., 761 F. Supp. 677, 679 (D. Ariz.
1991), aff’d, 978 F.2d 475 (9th Cir. 1992); Lohrmann
v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.
1986).
Defendants contend that Plaintiffs failed to prove
their failure to warn claims. The Court finds that the
evidence presented on this issue was sufficient to
support the jury’s verdict. This evidence includes the
testimony of Plaintiffs’ expert witnesses and the
testimony of Defendant Johnson & Johnson’s chief
medical officer. This Court has previously considered
Defendants’ preemption argument on this issue and
found that Plaintiffs’ claims were not preempted.
Defendants argue that Plaintiffs’ claims are barred
by the applicable statutes of limitation. This was a
fact issue for the jury to decide. See Powel v.
Chaminade College Preparatory Inc., 197 S.W.3d 576,
582 (Mo. banc 2006). The Court submitted verdict
directors to the jury on timeliness for each of the
112a
Plaintiffs to which this argument applies. The Court
finds that sufficient evidence was presented to the
jury on this issue such that their determinations on
the timeliness of Plaintiffs’ claims should not be set
aside.
Defendants argue that that Plaintiffs’ Ms. Kim and
Ms. Groover-Mallard’s claims fail because they are
subsumed by the NJPLA. The Court finds that the
claims submitted to the jury by Plaintiffs’ Ms. Kim
and Ms. Groover-Mallard were solely strict liability
claims allowed under the NJLPA. See Dean v. Barrett
Homes, Inc., 204 N.J. 286, 294, 8 A.3d 766, 771 (N.J.
2010).
Defendants argue that that Plaintiffs Ms. Owens,
Ms. Packard, and Ms. Schwartz-Thomas’s strict
liability claims fail because they are not cognizable
under the applicable state laws. The Court finds that
this argument is moot because Plaintiffs Ms. Owens,
Ms. Packard, and Ms. Schwartz-Thomas did not
submit strict liability claims to the jury.
Defendants contend that Plaintiffs failed to proffer
sufficient evidence to support the verdict on their
punitive damages claims. First, Defendants contend
that other state laws should apply herein regarding
punitive damages. Missouri courts apply the “most
significant relationship” test set forth in the
Restatement (Second) of Conflict of Laws Section 145
(1971) in deciding choice of law issues for tort claims.
Kennedy v. Dixon, 439 S.W.2d 173, 184 (Mo. banc
1969); See also Harter v. Ozark-Kenworth, Inc., 904
S.W.2d 317, 320 (Mo. App. W.D. 1995).
113a
Section 145 of the Restatement (Second) of Conflict
of Laws provides:
(1) The rights and liabilities of the parties with
respect to an issue in tort are determined by the
local law of the state which, with respect to that
issue, has the most significant relationship to
the occurrence and the parties under the
principles stated in §6.
(2) Contacts to be taken into account in
applying the principles of §6 to determine the
law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the
injury occurred,
(c) the domicil, residence, nationality, place of
incorporation and place of business of the
parties, and
(d) the place where the relationship, if any,
between the parties is centered.
These contacts are to be evaluated according to
their relative importance with respect to the
particular issue.
Kennedy v. Dixon, 439 S.W. at 184.
Considering the direct connection between
Defendants’ activities in Missouri and the injuries
Plaintiffs received, as well as the fact that numerous
Plaintiffs were first injured in Missouri, the Court
finds that Missouri law should apply regarding
Plaintiffs’ claims for punitive damages.
Second, Defendants contend that even under
Missouri law, Plaintiffs have failed to present
114a
sufficient evidence to support their claims for punitive
damages. “The test for punitive damages in a products
liability case is a strict one.” Angotti v. Celotex Corp.,
812 S.W.2d 742, 746 (Mo. App. W.D. 1991). Punitive
damages are allowed when “defendant knew of the
defect and danger and secondly, that by selling the
product with said knowledge, the defendant thereby
showed complete indifference to or conscious
disregard for the safety of others.” Id. Punitive
damages may also be recoverable “when there is
evidence to show that a defendant had been put on
notice of the fact that relevant information in regard
to the dangerousness of a product was available to
show that the product was actually known to
constitute a health hazard to a given class of
individuals and the defendant consciously chose to
ignore the available information.” Id. The Court finds
that sufficient evidence was presented to the jury from
which it could make such a finding.
Defendant Johnson & Johnson argues that it is
entitled to judgment notwithstanding the verdict as to
the claims of Plaintiffs Andrea Schwartz-Thomas,
Marcia Owens and Sheila Brooks, because they failed
to present evidence that they used the products at
issue before 1979. The Court finds that Plaintiffs
presented sufficient evidence of a participatory
connection with the products at issue such that
holding Johnson & Johnson liable is warranted under
applicable law. Plaintiffs presented particular
evidence regarding decisions, specifications and
testing of the products at issue that were done by
Defendant Johnson & Johnson rather than by its
subsidiary. In addition, Plaintiffs presented sufficient
evidence from which the jury could find that
115a
Defendant Johnson & Johnson owed a legal duty of
care to Plaintiffs Andrea Schwartz-Thomas, Marcia
Owens and Sheila Brooks.
Accordingly, this Court must deny Defendants’
motion for judgment notwithstanding the verdict.
Motion for New Trials
Defendants contend that they are entitled to new
separate trials of each Plaintiffs’ families’ claims.
Rule 78.01 states as follows:
The court may grant a new trial of any issue
upon good cause shown. A new trial may be
granted to all or any of the parties and on all or
part of the issues after trial by jury, court or
master. On a motion for a new trial in an action
tried without a jury, the court may open the
judgment if one has been entered, take
additional testimony, amend findings of fact or
make new findings, and direct the entry of a
new judgment.
“On a motion for new trial, the trial court may
reconsider its rulings on discretionary matters, such
as the admissibility of evidence, and may order a new
trial if it believes that its discretion was not wisely
exercised and that the losing party was thereby
prejudiced.” Anderson v. Kohler Co., 170 S.W.3d 19,
23 (Mo. App. E.D. 2005).
The Court has examined Defendants’ claims in their
Motion for New Trial and finds that Defendants have
not shown good cause required for a new trial under
Rule 78.01.
116a
In particular, the Court notes that it did not err in
admitting documents from Imerys Talc America, Inc.
f/k/a Luzenac America, Inc. Missouri courts allow the
admission of non-party co-conspirator statements
against a Defendant conspirator. See State v.
Ferguson, 20 S.W.3d 485, 496 (Mo. banc
2000)(“Statements of one conspirator are admissible
against another under the co-conspirator exception to
the hearsay rule”); See also Sparkman v. Columbia
Mut. Ins. Co., 271 S.W.3d 619, 622 (Mo. App. S.D.
2008)(recognizing the co-conspirator exception in civil
cases).
Motion for New Trials on Damages or Request
for Remittitur
Defendants seek an order of this Court vacating the
damages award and ordering new separate trials on
damages. In the alternative, Defendants ask the
Court to reduce the damages or give Plaintiffs the
option of accepting remittitur.
Section 537.068 RSMo states in pertinent part:
A court may enter a remittitur order if, after
reviewing the evidence in support of the jury’s
verdict, the court finds that the jury’s verdict is
excessive because the amount of the verdict
exceeds fair and reasonable compensation for
plaintiff’s injuries and damages.
“The circuit court should not sustain a motion for
additur or remittitur under § 537.068 without having
determined that the verdict is against the weight of
the evidence and that the party moving for additur or
remittitur is entitled to a new trial. Badahman, 395
S.W.3d at 38. Courts “generally defer to the jury’s
117a
decision as to the amount of damages.” Mackey v.
Smith, 438 S.W.3d 465, 480 (Mo. App. W.D. 2014).
Substantial evidence was presented at trial that
supports the compensatory damage awards entered
herein, including evidence of the injuries, pain,
suffering and impairment of Plaintiffs, their spouses
and decedents. The jury’s compensatory damage
awards are fair and reasonable compensation for the
injuries and damages proven by Plaintiffs at trial.
This Court will defer to the jury’s decision as to these
damage amounts.
“Punitive damages may properly be imposed on a
tortfeasor to further a state’s legitimate interests in
punishing unlawful conduct and deterring its
repetition.” Blanks v. Fluor Corp., 450 S.W.3d 308,
409 (Mo. App. E.D. 2014). “Punishing a tortfeasor
through an award of punitive damages is an exercise
of state power that must comply with the Due Process
Clause of the Fourteenth Amendment.” Id. “And the
Due Process Clause prohibits the imposition of grossly
excessive or arbitrary punishments on a tortfeasor.”
Id. “A grossly excessive punitive damage award
violates a tortfeasor’s substantive right of due process
in that it furthers no legitimate purpose and
constitutes an arbitrary deprivation of property.” Id.
“No precise constitutional line or simple
mathematical formula exists with regard to
determining whether a punitive damage award is
grossly excessive.” Id. “The United States Supreme
Court has set out three guideposts, commonly referred
to as the Gore guideposts, when reviewing whether a
punitive-damage award comports with due process:
(1) the reprehensibility of the defendant’s misconduct;
118a
(2) the disparity between the harm or potential harm
suffered by the plaintiff and the punitive-damage
award; and (3) the difference between the punitive
damages awarded by the jury and the civil penalties
authorized or imposed in comparable cases.” Id.
In this case, the Court finds that the punitive
damage awards comport with due process. First,
substantial evidence was adduced at trial of
particularly reprehensible conduct on the part of
Defendants, including that Defendants knew of the
presence of asbestos in products that they knowingly
targeted for sale to mothers and babies, knew of the
damage their products caused, and misrepresented
the safety of these products for decades. Second,
Defendants’ actions caused significant physical harm
and potential physical harm, including causing
ovarian cancer in Plaintiffs or Plaintiffs’ decedents.
Third, Missouri state law imposes significant
potential penalties in comparable cases under the
Missouri Merchandising Practices Act.
The Court finds that Defendants have not shown
good cause for a new trial on the damage awards
entered herein. The Court cannot determine that the
verdict was against the weight of the evidence and
accordingly cannot sustain Defendants’ request for
remittitur.
The Court now ORDERS and DECREES as
follows.
Defendants’ Johnson & Johnson and Johnson &
Johnson Consumer Inc.’s motion for judgment
notwithstanding the verdict, motion for new trials,
119a
and motion for new trials on damages or request for
remittitur are hereby DENIED.
SO ORDERED:
/s/ Rex M. Burlison
Rex M. Burlison
Circuit Judge
Division 10
Dated: December 19, 2018

120a
APPENDIX C
_________
STATE OF MISSOURI
_________
CITY OF ST. LOUIS
_________
_________
Plaintiffs,
vs.

Defendants.
_________
Cause No. 1522-CC10417-01
_________
Division No. 10
_________
Filed: May 15, 2018
_________
ORDER
_________
The Court has before it Defendants’ joint motion to

sever Plaintiffs’ claims for improper joinder.
follows.
Defendants’ joint motion to sever Plaintiffs’ claims
for improper joinder is hereby DENIED.
121a
SO ORDERED:
/s/ Rex M. Burlison
Rex M. Burlison
Circuit Judge
Division 10
Dated: May 15, 2018

122a
APPENDIX D
_________
STATE OF MISSOURI
_________
CITY OF ST. LOUIS
_________
_________
Plaintiffs,
vs.

Defendants.
_________
Cause No. 1522-CC10417-01
_________
Division No. 10
_________
Filed: May 15, 2018
_________
ORDER
_________
The Court has before it Johnson & Johnson and

Johnson & Johnson Consumer Companies, Inc., (the
Johnson & Johnson Defendants’) joint motion to
dismiss for lack of personal jurisdiction and joint
motion to sever and transfer venue, and Defendant
Imerys Talc America, Inc.’s motion to dismiss for lack
of personal jurisdiction, supplemental motion to
123a
dismiss for lack of personal jurisdiction and motion to
transfer venue. The Court now rules as follows.
Plaintiffs bring product liability claims alleging that
they or their spouses developed ovarian cancer as a
result of the use of Johnson & Johnson Baby Powder
and Shower to Shower products that contained both
talc and asbestos. The Johnson and Johnson
Defendants are alleged to have engaged in the
business of manufacturing, testing, labelling,
packaging, bottling, shipping, distributing and selling
the products at issue in Missouri both directly and
through their agent, Pharma Tech Industries.
Defendant Imerys Talc America, Inc., is alleged to
have exclusively mined and supplied the asbestos-
containing talc used in the products.
On May 9, 2018, this Court granted Plaintiffs leave
to file their Fourth Amended Petition. The amended
allegations in this petition are unrelated to the issues
raised in Defendants’ motions. In this Court’s Order
granting Plaintiffs’ leave to amend, Defendants’
pending motions were deemed to apply to the Fourth
Amended Petition.
Personal Jurisdiction
The Johnson and Johnson Defendants argue that
claims asserted against them by seventeen
nonresident Plaintiffs should be dismissed for lack of
personal jurisdiction. Defendant Imerys Talc
America, Inc., contends that this Court cannot
exercise personal jurisdiction over it as to any claims
in this case.
When deciding on a motion to dismiss for lack of
personal jurisdiction, the allegations of the petition
124a
must be given an intendment most favorable to the
existence of the jurisdictional fact. World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980). “The sufficiency of the evidence to make a
prima facie showing that the trial court may exercise
personal jurisdiction is a question of law.” Bryant v.
Smith Interior Design Grp., Inc., 310 S.W.3d 227, 231
(Mo. banc 2010). When personal jurisdiction is
contested, it is the plaintiff’s burden to show “that
defendant’s contacts with the forum state were
sufficient.” Id. “A reviewing court evaluates personal
jurisdiction by considering the allegations contained
in the pleadings to determine whether, if taken as
true, they establish facts adequate to invoke
Missouri’s long-arm statute and support a finding of
minimum contacts with Missouri sufficient to satisfy
due process.” Id.
Section 506.500.1 RSMo, Missouri’s long-arm
statute, reads as follows:
Any person or firm, whether or not a citizen or
resident of this state, or any corporation, who
in person or through an agent does any of the
acts enumerated in this section, thereby
submits such person, firm, or corporation, and,
if an individual, his personal representative, to
the jurisdiction of the courts of this state as to
any cause of action arising from the doing of
any of such acts:
(1) The transaction of any business within this
state;
(2) The making of any contract within this
state;
125a
(3) The commission of a tortious act within this
state;
(4) The ownership, use, or possession of any
real estate situated in this state;
(5) The contracting to insure any person,
property or risk located within this state at the
time of contracting;
(6) Engaging in an act of sexual intercourse
within this state with the mother of a child on
or near the probable period of conception of that
child.
“Section 506.500 is construed to extend the
jurisdiction of the courts of this state over nonresident
defendants to that extent permissible under the Due
Process clause.” Bryant, 310 S.W.3d at 232 (citing
State ex rel. Deere v. Pinnell, 454 S.W.2d 889, 892
(Mo. banc 1970)). “[E]xtraterritorial acts that produce
consequences in the state, such as fraud, are
subsumed under the tortious act section of the long-
arm statute.” Bryant, 310 S.W.3d at 232 (citing
Longshore v. Norville, 93 S.W.3d 746, 752 (Mo. App.
E.D. 2002)).
“The Due Process Clause of the Fourteenth
Amendment requires that the defendant have
minimum contacts with the forum state so that
maintenance of the suit does not offend traditional
notions of fair play and substantial justice.” Peoples
Bank v. Frazee, 318 S.W.3d 121, 128 (Mo. banc 2010).
“In addition to proving that the defendant
purposefully availed himself of the privilege of
conducting activities within the forum, exercise of
personal jurisdiction over a defendant with minimum
126a
contacts must be reasonable in light of the
surrounding circumstances of the case.” Id. “This
reasonableness depends on an evaluation of several
factors.” Id. “A court must consider the burden on the
defendant, the forum’s interest in adjudicating the
dispute, and the plaintiffs interest in obtaining
convenient and effective relief.” Id. “Consideration
must also go to the interstate judicial system’s
interest in obtaining the most efficient resolution of
controversies and the shared interest of the several
States in furthering fundamental substantive social
policies.” Id.
“Personal jurisdiction can be general or specific.”
Peoples Bank, 318 S.W.3d at 128 (citing Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
414 n.8-9, (1984)). In this case, Plaintiffs contend that
this Court has specific jurisdiction over the
Defendants herein. “Specific jurisdiction requires
consideration of the relationship among the
defendant, the forum, and the litigation.” State ex rel.
Norfolk S. Ry. v. Dolan, 512 S.W.3d 41, 48 (Mo. banc
2017) (citing Andra v. Left Gate Prop. Holding, Inc.,
453 S.W.3d 216, 226 (Mo. banc 2015)). “[S]pecific
jurisdiction encompasses cases in which the suit
arises out of or relates to the defendant’s contacts with
the forum.” Id.
“The primary focus of our personal jurisdiction
inquiry is the defendant’s relationship to the forum
State.” Bristol-Myers Squibb Co. v. Superior Court,
137 S. Ct. 1773, 1779 (U.S. June 19, 2017). “In order
for a state court to exercise specific jurisdiction, the
suit must aris[e] out of or relat[e] to the defendant’s
contacts with the forum.” Id. at 1780. “[S]pecific
jurisdiction is confined to adjudication of issues
127a
deriving from, or connected with, the very controversy
that establishes jurisdiction.” Id. “When there is no
such connection, specific jurisdiction is lacking
regardless of the extent of a defendant’s unconnected
activities in the State.” Id. at 1781.
In this case, Plaintiffs have met their burden of
showing that Defendants’ contacts with Missouri are
sufficient. The allegations in the pleadings, supported
by numerous exhibits in the record, establish facts
adequate to invoke Missouri’s long-arm statute and
support a finding of minimum contacts with Missouri
sufficient to satisfy due process. In addition, this
Court has specific jurisdiction over Defendants
because Plaintiffs’ suit arises out of and relates to
Defendants’ contacts with the forum.
The minimum contacts alleged and supported by the
record are reasonable in light of the circumstances
because Defendants suffer little or no burden by
litigating here, this forum is interested in
adjudicating the dispute because it involves the injury
of a City of St. Louis resident that occurred in the City
of St. Louis, and Plaintiffs are interested in obtaining
convenient and effective relief in a forum where one
Plaintiff resides and was first injured, and in a State
where several Plaintiffs reside. This Court is most
able to efficiently resolve the controversies raised in
Plaintiffs’ petition.
Regarding the Johnson & Johnson Defendants,
Plaintiffs have shown that the long arm is met
through the transaction of business in Missouri, the
alleged commission of the tortious conduct described
in the petition, the ownership of real estate and the
entry of contracts, including contracts with a company
128a
located in the City of St. Louis for the manufacture of
packaging materials. Plaintiffs have shown that the
Johnson & Johnson Defendants purposefully availed
themselves of the privilege of conducting activities in
Missouri, such that exercising personal jurisdiction
over them is reasonable in light of the surrounding
circumstances of this case.
Plaintiffs’ allege that this Court has specific
jurisdiction over the Johnson & Johnson Defendants
because they contracted with their agent, Pharma
Tech Industries, in Missouri to manufacture, package
and label the products at issue and to transport the
talc used in the products. Plaintiffs contend Pharma
Tech’s relevant actions were under the direction and
control of the Johnson & Johnson Defendants.
Plaintiffs allege that the products at issue were
manufactured, bottled, packaged, labeled, marketed,
advertised, distributed and sold in Missouri. In
addition, Plaintiffs contend that Defendants’
marketing strategy was created in part in in the City
of St. Louis, Missouri, and in Kansas City, Missouri.
The record supports Plaintiffs’ jurisdictional
allegations regarding all of the claims alleged,
including those of the non-residents.
Regarding Imerys, Plaintiffs have shown that the
long arm is met through the transaction of business in
Missouri, and the alleged commission of the tortious
conduct described in the petition. Plaintiffs have
shown that Imerys purposefully availed itself of the
privilege of conducting activities in Missouri, such
that exercising personal jurisdiction over it is
reasonable in light of the surrounding circumstances
of this case. Plaintiffs allege injury as a result of their
purchase and use of Shimmer, a product
129a
manufactured in Missouri that included asbestos-
containing talc supplied by Imerys. Imerys sold this
talc to Pharma Tech, worked with Pharma Tech to
test the talc, and traveled to Missouri for meetings
related to the products at issue. The talc Imerys sold
to Pharma Tech was delivered to it in Missouri.
Plaintiffs’ allege that this Court has specific
jurisdiction over Imerys because it sold the asbestos-
containing talc to Pharma Tech Industries in Missouri
to be used in the products at issue and that it knew
that the talc contained asbestos at the time and of the
dangers associated with it. In particular, Plaintiffs
point to the talc mined and sold by Imerys used in the
Shimmer product manufactured in Union, Missouri.
Plaintiffs contend that Imerys sent hundreds of
pounds of talc into Missouri for use in this product.
Plaintiffs assert claims directly related to their use of
the Shimmer product. Finally, Plaintiffs contend that
Imerys engaged in strategy meetings in Missouri
regarding the products at issue. The record supports
Plaintiffs’ jurisdictional allegations related to Imerys.
Defendants cite Bristol-Myers Squibb in support of
their jurisdictional arguments. In Bristol-Myers
Squibb, the United States Supreme Court found that
the sale of Plavix that injured plaintiffs in California
did not confer jurisdiction over plaintiffs that were
injured by Plavix in other states. 137 S. Ct. at 1781.
This holding is distinguishable from Plaintiffs’ case
herein, because the Supreme Court specifically
pointed out that the defendants in Bristol-Myers “did
not develop Plavix in California, did not create a
marketing strategy for Plavix in California, and did
not manufacture, label, package, or work on the
regulatory approval of the product in California.” Id.
130a
at 1778. In this case, Plaintiffs allege that Defendants
engaged in all of these activities in Missouri except
working on regulatory approval. The reasoning in
Bristol-Myers supports this Court’s ruling that when
the suit arises out of and relates to Defendants’
contacts with Missouri, as Plaintiffs have shown here,
the Court has specific personal jurisdiction over the
lawsuit.
Venue
Defendants move to transfer venue under Section
508.010.4 RSMo. Defendants contend that venue for
Plaintiffs claims can only be obtained through Gail
Ingham and that discovery has shown that she was
not first exposed to Defendants’ products in the City
of St. Louis.
Venue in Missouri is determined solely by statute.
State ex rel. Ford Motor Co. v. Manners, 161 S.W.2d
373, 375 (Mo. banc 2005); State ex rel. Linthicum v.
Calvin, 57 S.W.3d 855, 857 (Mo. banc 2001).
Section 508.010.4 RSMo states:
Notwithstanding any other provision of law, in
all actions in which there is any count alleging
a tort and in which the plaintiff was first
injured in the state of Missouri, venue shall be
in the county where the plaintiff was first
injured by the wrongful acts or negligent
conduct alleged in the action.
The Missouri legislature has mandated that
singular terms in its statutes should be construed as
including their plural forms “unless there be
something in the subject or context repugnant to such
131a
construction.” State ex rel. BJC Health Sys. v. Neill,
121 S.W.3d 528, 530 (Mo. banc 2003). Section
508.010.4 should therefore be read as “venue shall be
in the county where the plaintiff was [or plaintiffs
were] first injured... .”
The Court must deny Defendants’ motion because
venue is proper herein. Plaintiffs’ claims are properly
joined under Rule 52.05. These claims include those
of Gail Ingham who allegedly was first exposed to and
injured by the talcum powder products at issue in the
City of St. Louis. Accordingly, venue is proper in this
case under Section 508.010.4 RSMo.
Plaintiffs allege that Gail Ingham was first exposed
to Defendants’ products in the City of St. Louis where
she purchased and applied the products and
developed ovarian cancer. Defendants point to Gail
Ingham’s deposition testimony regarding smelling the
fragrance of baby powder on her grandmother as
refuting these allegations. The Court finds this
argument to lack merit. First, the Court cannot
determine from the record that smelling a fragrance
is equivalent to exposure. Second, it appears from the
record that Gail Ingham first smelled the fragrance of
baby powder at her grandmother’s home in the City of
St. Louis.
Defendants argue that Plaintiff Gail Ingham’s
claims should be severed and the remaining Plaintiffs’
claims transferred to Cole County because under Rule
51.01 the joinder rules may not be used to extend
venue. This Court agrees that the joinder rules may
not be used to extend venue, however the basis for
venue in this case is section 508.010.4 RSMo and not
132a
the joinder rules. See State ex rel. Kinsey v. Wilkins,
394 S.W.3d 446, 454 (Mo. App. E.D. 2013).
Defendants’ motions to sever and to transfer venue
must be denied.
follows.
Defendants Johnson & Johnson and Johnson &
Johnson Consumer Companies, Inc.’s joint motion to
dismiss for lack of personal jurisdiction and joint
motion to sever and transfer venue are hereby
DENIED.
Defendant Imerys Talc America, Inc.’s motion to
dismiss for lack of personal jurisdiction, supplemental
motion to dismiss for lack of personal jurisdiction and
motion to transfer venue are hereby DENIED.
SO ORDERED:
/s/ Rex M. Burlison
Rex M. Burlison
Circuit Judge
Division 10
Dated: May 15, 2018

133a
APPENDIX E
_________
STATE OF MISSOURI
_________
CITY OF ST. LOUIS
_________
_________
Plaintiffs,
vs.

Defendants.
_________
Cause No. 1522-CC10417
_________
Division No. 10
_________
Filed: May 17, 2016
_________
ORDER
_________
The Court has before it Defendants Johnson &

Johnson, Johnson & Johnson Consumer Companies,
Inc., and Imerys Talc America, Inc.’s motions to
transfer venue, to dismiss the non-Missouri Plaintiffs’
claims for improper venue, to dismiss under the
doctrine of forum non conveniens, to dismiss for lack
134a
of personal jurisdiction, and to sever. The Court now
rules as follows.
Plaintiffs bring product liability claims alleging that
they or their spouses have developed ovarian cancer
as a result of the use of talcum powder products. The
Johnson and Johnson Defendants are alleged to have
engaged in the business of manufacturing, marketing,
testing, promoting, selling and/or distributing the
talcum powder products. Defendant Imerys Talc
America, Inc., is alleged to have mined and
distributed raw talcum powder, introducing it into
interstate commerce with knowledge of its harmful
properties and with intent of its use in manufacturing
the talcum powder products at issue, ultimately sold
in the State of Missouri.
Venue
Defendants move to transfer venue under Section
508.010.4 RSMo.
Venue in Missouri is determined solely by statute.
State ex rel. Ford Motor Co. v. Manners, 161 S.W.2d
373, 375 (Mo. banc 2005); State ex rel. Linthicum v.
Calvin, 57 S.W.3d 855, 857 (Mo. banc 2001).
Section 508.010.4 RSMo states:
Notwithstanding any other provision of law, in
all actions in which there is any count alleging
a tort and in which the plaintiff was first
injured in the state of Missouri, venue shall be
in the county where the plaintiff was first
injured by the wrongful acts or negligent
conduct alleged in the action.
135a
The Missouri legislature has mandated that
singular terms in its statutes should be construed as
including their plural forms “unless there be
something in the subject or context repugnant to such
construction.” State ex rel. BJC Health Sys. v. Neill,
121 S.W.3d 528, 530 (Mo. banc 2003). Section
508.010.4 should therefore be read as “venue shall be
in the county where the plaintiff was [or plaintiffs
were] first injured... .”
The Court must deny Defendants’ motion because
venue is proper herein. Plaintiffs’ claims are properly
joined under Rule 52.05. These claims include those
of Gail Ingham who allegedly was first exposed to and
injured by the talcum powder products at issue in the
City of St. Louis. Accordingly, venue is proper in this
case under Section 508.010.4 RSMo.
Defendants argue that under Rule 51.01 the joinder
rules may not be used to extend venue. This Court
agrees that the joinder rules may not be used to
extend venue, however the basis for venue in this case
is section 508.010.4 RSMo and not the joinder rules.
See State ex rel. Kinsey v. Wilkins, 394 S.W.3d 446,
454 (Mo. App. E.D. 2013).
Defendants’ motion to dismiss as to venue must be
denied.
Forum Non Conveniens
Defendants argue that the claims of all Plaintiffs
that are not Missouri residents should be dismissed
on forum non conveniens grounds.
Under the doctrine of forum non conveniens, a trial
court has broad discretion to refuse to exercise
136a
jurisdiction, even if there is proper jurisdiction and
venue, if the forum is seriously inconvenient for the
trial of the action, and if a more appropriate forum is
available to the petitioner. Anglim v. Mo. P. R. Co.,
832 S.W.2d 298, 302 (Mo. banc 1992); Moyers v.
Moyers, 284 S.W.3d 182, 187 (Mo. App. E.D. 2009).
“The trial court should weigh six important, but non-
exclusive, factors in making its decision: 1) the place
where the cause of action accrued; 2) the location of
witnesses; 3) the parties’ residence; 4) any nexus with
the place of suit; 5) the public factor of the convenience
to and burden on the court; and 6) the availability of
another court with jurisdiction that affords a forum
for the plaintiff.” Moyers, 284 S.W.3d at 187. “Any
additional factors considered and the weight assigned
to each depend upon the circumstances of the
particular case.” Id. “In addition to the foregoing
factors, the trial court shall consider whether
proceeding in Missouri would cause injustice by
oppressing the defendant or place an undue burden on
the court.” Id.
In considering a defendant’s argument the Court
must keep in mind that plaintiff’s choice of a forum
should not be disturbed except for “weighty reasons”
and only if the balance is strongly in favor of the
defendant. Anglim, 832 S.W.2d at 302. The mere fact
a plaintiff might choose a forum based on a perception
that a particular venue has a more favorable jury pool
does not constitute a basis for dismissal. Euton v.
Norfolk & Western Railway Company, 936 S.W.2d
146 (Mo. App. E.D 1996). The Court should honor a
plaintiff’s choice of forum if reasonable persons could
differ with the decision to dismiss. Barrett v. Missouri
137a
Pacific R.R. Co., 688 S.W.2d 397, 399 (Mo. App. E.D.
1985).
This forum is not seriously inconvenient for the trial
of the action, and there is no forum more appropriate.
None of the six factors weigh heavily in favor of
dismissal. The cause of action accrued in part in the
City of St. Louis. Many witnesses will be located in
the City of St. Louis. Several treating doctors are
located in the City of St. Louis. Many of the parties in
this case reside in the City of St. Louis and other
Missouri counties. At least one Plaintiff was first
injured in the City of St. Louis and other Plaintiffs
were also first injured in Missouri. The Court finds
no significant burden on this Court to try the matter
here. Finally, Defendants have not shown the
availability of another forum that would be more
convenient to hear all of Plaintiffs’ claims.
The Court will not exercise its discretion to refuse to
exercise jurisdiction under a forum non conveniens
theory.
Personal Jurisdiction
The Johnson and Johnson Defendants argue that
claims asserted against them by non-Missouri
Plaintiffs should be dismissed for lack of personal
jurisdiction. Defendant Imerys Talc America, Inc.,
contends that this Court cannot exercise personal
jurisdiction over it as to any claims in this case.
When deciding on a motion to dismiss for lack of
personal jurisdiction, the allegations of the petition
are given an intendment most favorable to the
existence of the jurisdictional fact. World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
138a
(1980). Absent one of the traditional territorial bases
of personal jurisdiction—presence, domicile or
consent—a court may assert personal jurisdiction
over a defendant only if certain minimum contacts
between Missouri and the defendant are established.
Bryant v. Smith Interior Design Grp., Inc., 310
S.W.3d 227, 232 (Mo. banc 2010).
“The sufficiency of the evidence to make a prima
facie showing that the trial court may exercise
personal jurisdiction is a question of law.” Bryant,
310 S.W.3d at 231. When personal jurisdiction is
contested, it is the plaintiff’s burden to show “that
defendant’s contacts with the forum state were
sufficient.” Id. (citing Angoff v. Marion A. Allen, Inc.,
39 S.W.3d 483, 486 (Mo. banc 2001)). “A reviewing
court evaluates personal jurisdiction by considering
the allegations contained in the pleadings to
determine whether, if taken as true, they establish
facts adequate to invoke Missouri’s long-arm statute
and support a finding of minimum contacts with
Missouri sufficient to satisfy due process.” Id.
“Missouri courts employ a two-step analysis to
evaluate personal jurisdiction.” Bryant, 310 S.W.3d
at 231 (citing Conway v. Royalite Plastics, Ltd., 12
S.W.3d 314, 318 (Mo. banc 2000). “First, the court
inquires whether the defendant’s conduct satisfies
Missouri’s long-arm statute, section 506.500.” Id. “If
so, the court next evaluates whether the defendant
has sufficient minimum contacts with Missouri such
that asserting personal jurisdiction over the
defendant comports with due process.” Id.
Section 506.500.1 RSMo, Missouri’s long-arm
statute, reads as follows:
139a
Any person or firm, whether or not a citizen or
resident of this state, or any corporation, who in
person or through an agent does any of the acts
enumerated in this section, thereby submits such
person, firm, or corporation, and, if an individual,
his personal representative, to the jurisdiction of
the courts of this state as to any cause of action
arising from the doing of any of such acts:
(1) The transaction of any business within this
state;
(2) The making of any contract within this state;
(3) The commission of a tortious act within this
state;
(4) The ownership, use, or possession of any real
estate situated in this state;
(5) The contracting to insure any person, property
or risk located within this state at the time of
contracting;
(6) Engaging in an act of sexual intercourse within
this state with the mother of a child on or near the
probable period of conception of that child.
“Section 506.500 is construed to extend the
jurisdiction of the courts of this state over nonresident
defendants to that extent permissible under the Due
Process clause.” Bryant, 310 S.W.3d at 232 (citing
State ex rel. Deere v. Pinnell, 454 S.W.2d 889, 892
(Mo. banc 1970)). “[E]xtraterritorial acts that produce
consequences in the state, such as fraud, are
subsumed under the tortious act section of the long-
arm statute.” Bryant, 310 S.W.3d at 232 (citing
140a
Longshore v. Norville, 93 S.W.3d 746, 752 (Mo. App.
E.D. 2002)).
“The Due Process Clause of the Fourteenth
Amendment requires that the defendant have
minimum contacts with the forum state so that
maintenance of the suit does not offend traditional
notions of fair play and substantial justice.” Peoples
Bank v. Frazee, 318 S.W.3d 121, 128 (Mo. banc 2010).
“In addition to proving that the defendant
purposefully availed himself of the privilege of
conducting activities within the forum, exercise of
personal jurisdiction over a defendant with minimum
contacts must be reasonable in light of the
surrounding circumstances of the case.” Id. “This
reasonableness depends on an evaluation of several
factors.” Id. “A court must consider the burden on the
defendant, the forum’s interest in adjudicating the
dispute, and the plaintiff’s interest in obtaining
convenient and effective relief.” Id. “Consideration
must also go to the interstate judicial system’s
interest in obtaining the most efficient resolution of
controversies and the shared interest of the several
States in furthering fundamental substantive social
policies.” Id.
“Personal jurisdiction can be general or specific.”
Peoples Bank, 318 S.W.3d at 128 (citing Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
414 n.8-9, (1984)). “A court has general jurisdiction
over a nonresident defendant if the defendant has
continuous and systematic contacts with the forum
not necessarily related to the cause of action.” Id.; See
also Daimler AG v. Bauman, 134 S. Ct. 746, 751
(2014). “A court has specific jurisdiction over a non-
resident defendant when the suit arises out of or is
141a
related to the defendant’s contacts with the forum.”
Id.
In this case, this Court has specific personal
jurisdiction over the Defendants. Defendants’ alleged
conduct satisfies Missouri’s long-arm statute because
their alleged tortious acts produced injury in the City
of St. Louis and other parts of Missouri. The Johnson
& Johnson Defendants have sufficient minimum
contacts with Missouri which include both the
distribution and sale of the talcum powder products at
issue in Missouri to Missouri residents. Defendant
Imerys has sufficient minimum contacts with
Missouri, including: having a distributor located in
the City of St. Louis and with an additional office in
Kansas City, Missouri, and knowledge of the harmful
properties of its products that were sold and used in
Missouri. These contacts are reasonable in light of the
circumstances because Defendants suffer little or no
burden, this forum is interested in adjudicating the
dispute because it involves the injury of a City of St.
Louis resident and injury in the City of St. Louis, and
Plaintiffs are interested in obtaining convenient and
effective relief from a Court in a forum where one
Plaintiff resides and was first injured and in a State
where several Plaintiffs reside and were injured by
Defendants’ alleged tortious activities.
The Johnson & Johnson Defendants cite no
controlling precedent in support of their contention
that jurisdiction should be considered as to the claims
of each individual plaintiff. Jurisdiction over a
defendant is based on the minimum contacts that the
defendant has with the state, and not the contacts
that plaintiffs have with the state. See Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 779 (1984).
142a
Defendants’ reliance on Daimler is misplaced because
this Court has specific personal jurisdiction over
Defendants based on Plaintiffs’ claims and not
general personal jurisdiction. 134 S. Ct. at 759.
In addition, the Court finds that Defendant Imerys
has consented to the jurisdiction of this Court by
maintaining a registered agent to accept the service of
process in Missouri. See Pennsylvania Fire Ins. Co. v.
Gold Issue Mining & Milling Co., 243 U.S. 93 (1917);
Railroad Co. v. Harris, 79 U.S. 65, 81 (1871);
Knowlton v. Allied Van Lines, Inc., 900 F.2d 1196,
1197 (8th Cir. 1990); See also State ex rel. K-Mart v.
Holliger, 986 S.W.2d 165, 166 (Mo. banc 1999).
Severance
Defendants contend that Plaintiffs have improperly
joined claims that did not arise out of the same
transaction or occurrence and ask that Plaintiffs’
claims be severed into distinct and separate actions.
The permissive joinder of parties is governed by
Rule 52.05(a). State ex rel. Nixon v. Dally, 248 S.W.3d
615, 616 (Mo. banc 2008). Rule 52.05(a) states as
follows:
Permissive Joinder. All persons may join in
one action as plaintiffs if they assert any right
to relief jointly, severally, or in the alternative
in respect of or arising out of the same
transaction, occurrence or series of transactions
or occurrences and if any question of law or fact
common to all of them will arise in the action.
All persons may be joined in one action as
defendants if there is asserted against them
jointly, severally, or in the alternative, any
143a
right to relief in respect of or arising out of the
same transaction, occurrences or series of
transactions or occurrences and if any question
of law or fact common to all of them will arise
in the action. A plaintiff or defendant need not
be interested in obtaining or defending against
all the relief demanded. Judgment may be
given for one or more of the plaintiffs according
to their respective rights to relief, and against
one or more defendants according to their
respective liabilities.
The policy of the law is to try all issues arising from
the same occurrence or series of occurrences together.
Bhagvandoss v. Beiersdorf, Inc., 723 S.W.2d 392, 395
(Mo. banc 1987); Bryan v. Pepper, 175 S.W.3d 714,
719 (Mo. App. S.D. 2005). Events arise out of the same
series of transactions or occurrences when they have
either a common scheme or design, or if all acts or
conduct are connected with a common core, common
purpose, or common event. Levey v. Roosevelt
Federal Savings Association of St. Louis, 504 S.W.2d
241, 246 (Mo. App. 1973).
Plaintiffs claim that they were each damaged by the
same wrongful conduct of the Defendants in the
mining, manufacturing, marketing, testing,
promoting, selling and distributing the talcum powder
products at issue with knowledge of their harmful
properties. Plaintiffs’ claims against Defendants
arise out of the same basic injuries, same defect, same
alleged duty, and same causes of action. Plaintiffs all
allege that they or their spouses developed ovarian
cancer as a result of the use of the talcum powder
products at issue. The alleged events for which
Plaintiffs seek damages arise out of the same common
144a
scheme or design, and are connected with a common
core, common purpose, or common event. In addition,
numerous questions of law and fact are common to
Plaintiffs’ claims herein, including what knowledge
Defendants had as to the harmful nature of the
talcum powder products at issue and whether they
engaged in a common scheme to withhold or suppress
information related to the dangerous nature of these
products.
The Court finds that Plaintiffs are properly joined
under Rule 52.05(a) and their claims should not be
severed.
follows.
Defendants Johnson & Johnson and Johnson &
Johnson Consumer Companies, Inc.’s motions to
of personal jurisdiction, and to sever are hereby
DENIED.
Defendant Imerys Talc America, Inc.’s motions to
of personal jurisdiction, and to sever are hereby
DENIED.
145a
SO ORDERED:
/s/ Rex M. Burlison
Rex M. Burlison
Circuit Judge
Division 10
Dated: 5-17-2016
146a
APPENDIX F
_________
SUPREME COURT OF MISSOURI
EN BANC
_________
SC98674
ED107476
_________
September Session, 2020
_________
ROBERT INGHAM, ET AL.,
Respondents,
vs. (TRANSFER)
JOHNSON & JOHNSON, ET AL.,

Appellants.
_________
November 3, 2020
_________
Now at this day, on consideration of the Appellants’

application to transfer the above-entitled cause from
the Missouri Court of Appeals, Eastern District, it is
ordered that the said application be, and the same is
hereby denied.
STATE OF MISSOURI-Sct.
I, Betsy AuBuchon, Clerk of the Supreme Court of
the State of Missouri, certify that the foregoing is a
full, true and complete transcript of the judgment of
said Supreme Court entered of record at the
September Session, 2020, and on the 3rd day of
November, 2020, in the above-entitled cause.
147a
IN TESTIMONY WHEREOF, I have
hereunto set my hand and the seal of said
Court, at my office in the City of Jefferson,
this 3rd day of November, 2020.
/s/ Betsy AuBuchon , Clerk

/s/ , Deputy Clerk
148a
APPENDIX G
_________
IN THE MISSOURI COURT OF APPEALS
EASTERN DISTRICT
_________
No. ED107476
_________
ROBERT INGHAM, individually and on behalf of Gail
Ingham, et al.,
Respondents,
vs.
JOHNSON & JOHNSON and JOHNSON & JOHNSON

CONSUMER, INC., F/K/A JOHNSON & JOHNSON
CONSUMER COMPANIES, INC.,
Appellants
IMERYS TALC AMERICA INC.,
Defendant.
_________
July 28, 2020

_________
ORDER
_________
Appellant’s Application for Transfer to Missouri

Supreme Court is denied.
SO ORDERED.
149a
DATED:
JUL 28 2020 /s/
Chief Judge
Missouri Court of
Appeals Eastern District
150a
APPENDIX H
_________
IN THE CIRCUIT COURT
OF THE CITY OF ST. LOUIS
STATE OF MISSOURI
The Honorable Rex M. Burlison, Judge
_________
Plaintiffs,
vs.

Defendants.
_________
Cause No. 1522-CC10417-01
_________
TRIAL TRANSCRIPT
Volume 5
_________
June 6, 2018
_________
APPEARANCES
FOR THE PLAINTIFF GAIL INGHAM, et al.:
THE HOLLAND LAW FIRM
Mr. Eric Holland
Mr. Patrick Dowd
Mr. R. Seth Crompton
300 N. Tucker Blvd. #801
St. Louis, MO 63101
151a
THE LANIER LAW FIRM, P.C.
Mr. W. Mark Lanier
Mr. Lee Cirsch
Ms. Rachel Lanier
Ms. Monica Cooper
6810 FM 1960 West
Houston, TX 77069
FOR THE DEFENDANT JOHNSON &
JOHNSON and JOHNSON & JOHNSON
CONSUMER COMPANIES, INC.:
ORRICK, HERRINGTON & SUTCLIFFE LLP
Mr. Peter A. Bicks
Ms. Lisa T. Simpson
Mr. Morton Donald Dubin II
Ms. Nina Trovato
Ms. Alyssa Barnard
Ms. Anne Malik
Ms. Shasha Zou
Ms. Shaila Diwan
Mr. Matt Bush
51 West 52nd Street
New York, NY 10019-6142
HELPER BROOM LLC
Mr. Thomas J. Magee
Ms. Beth A. Bauer
211 N. Broadway, Suite 2700
St. Louis, MO 63102
SHOOK HARDY & BACON

Mr. Mark Hegarty
2555 Grand Boulevard
Kansas City, MO 64108
152a
SPECIAL MASTER HON. GLENN NORTON
_________
JENNIFER A. DUNN, RPR, CCR #485

OFFICIAL COURT REPORTER
CITY OF ST. LOUIS CIRCUIT COURT
jdunncourts@yahoo.com
_________
PROCEEDINGS
***
[Plaintiffs’ Opening Statement,
pp. 766:21-767:13]
***
All of these women, they have different names. They
come from different parts of the country. They come
from different educational backgrounds. They have
got different social lives. Different skin colors.
Different ethnic heritage.
But all of these women have something in common.
All of them used regularly and extensively Johnson &
Johnson Baby Powder and had to listen when a doctor
said to them: You’ve got cancer.
And not just any cancer. You’ve got ovarian cancer.
A cancer that has a mortality rate of almost 50
percent. And even if you go into remission, you always
have an increased risk of a reoccurrence.
Now, all of these women have had that, it’s what has
taken the lives of a number of them, and what you’ve
got to do in your position in this case is figure out why.
153a
You’re the detectives in this trial. You’ve got to do
some detective work.
***
154a
APPENDIX I
_________
STATE OF MISSOURI
_________
Plaintiffs,
vs.

Defendants.
_________
Cause No. 1522-CC10417-01
_________
TRIAL TRANSCRIPT
Volume 11
_________
June 14, 2018

_________
APPEARANCES
Mr. Eric Holland
Mr. Patrick Dowd
St. Louis, MO 63101
155a
Mr. W. Mark Lanier
Mr. Lee Cirsch
Ms. Rachel Lanier
Ms. Monica Cooper
6810 FM 1960 West
Houston, TX 77069
FOR THE DEFENDANT JOHNSON & JOHNSON
and JOHNSON & JOHNSON CONSUMER
COMPANIES, INC.:
Mr. Peter A. Bicks
Ms. Lisa T. Simpson
Ms. Nina Trovato
Ms. Alyssa Barnard
Ms. Anne Malik
Ms. Shasha Zou
Ms. Shaila Diwan
Mr. Matt Bush
51 West 52nd Street
New York, NY 10019-6142
HELPER BROOM LLC
Mr. Thomas J. Magee
Ms. Beth A. Bauer
St. Louis, MO 63102
SHOOK HARDY & BACON

Mr. Mark Hegarty
156a
_________

_________
PROCEEDINGS
***
[Videotaped Deposition of Donna Packard,
pp. 2283:23-2288:5]
***
Q Now, your counsel asked you earlier today
whether you had ever used the Johnson & Johnson
Shower to Shower Shimmer Effects product. Do you
recall that question?
A Um-hmm, I do.
Q And before I ask you a little bit more about that,
let me just take you back to yesterday. You had an
opportunity to meet with your counsel yesterday; is
that right?
A Um-hmm, yes.
Q Okay. You met here in your home?
A Um-hmm.
Q Is that right?
157a
A Yes.
Q Okay. And of course I will not ask you what you
discussed with your counsel because that is attorney-
client privilege between you and your lawyer.
A Okay.
Q But you did have an opportunity to speak with
your counsel yesterday; is that right?
A Okay.
Q Is that right?
A Yes.
Q In preparation for your testimony today; is that
right?
A Yes.
Q And it was after your meeting with your
attorney yesterday that you did some more thinking
last night; is that right?
A I thought about it more last night and here’s
what I thought: I think like most -- I don’t mean to
make this sexist, but I think girls go into a cosmetic
counter and they see pretty colors and pretty-colored
bottles. And now we have blue nail polish and
turquoise and green and pink and orange and white
and yellow and whatever. But back then we only had
the typical pink and blue and turquoise green and
whatever.
And so I was thinking that I probably saw this new
product that was cream and had a gold top, and I
thought, hmm. And I bought it. Not just because it
was Shower to Shower, but because it was pretty and
158a
colorful, and so I’m sure there was at some point some
in this house.
Q And that’s a memory that you had after your
meeting with counsel last, yesterday?
A I dreamed it last night. I dreamed -- I woke up,
I wasn’t sleeping well last night thinking about all of
today. And I was thinking, and the blue bottles were
in here, and I think there may have been a blue bottle
in here. I know there were times you would go to the
store and you could only get pink or you could only get
green or you can only get, you know, or white, or you
could only get the sport, which was white -- the blue
on white. And so I felt like knowing my whimsical
ways, I would have seen, oh, gold, and I would have
bought it.
Q And that’s based on what you think you might
have done, not what you recall doing; is that correct?
A Probably a little of both.
Q Okay. And this thought that you had and the
dream that you had that you just described to us,
those all came after you had your meeting with
counsel to prepare for your deposition today; is that
right?
A I’ve been thinking about this because this has
been ongoing for quite a while. This has been coming
up for several months, so I have -- I probably have
given it more than just cursory, you know, thought.
Q That’s fair enough, ma’am. Earlier today when
you were asked about the Shower to Shower Shimmer
Effects product by your counsel, I believe your
testimony was that in thinking about it last night,
159a
that you remembered or you believe that you would
have bought that product. Did I get that testimony
correct?
A I think so.
Q Okay. First, could you describe for us the
outside of the Shimmer Effects product that you
testified recalling you may have purchased or used?
A As I recall, because I don’t have it in the house
any more, it’s a cream-colored bottle, it’s the same
shape, and it had a gold top on it.
Q And you would agree, ma’am, that in your
Plaintiff Fact Sheet on page 11 that we just talked
about for a few minutes, that when you were asked to
describe the Shower to Shower products that you
used, you described having used one that was blue and
one that was pink and one that was green, but you
don’t describe having used one that had a cream-
colored bottle or a gold top; is that correct?
A I also don’t mention the purple, which I used.
Q But we are correct, you don’t mention the
Shower to Shower Shimmer Effects product in your
Plaintiff Fact Sheet; is that right?
A Correct.
Q And I just wanted to make sure that we’re clear.
You did not describe the Shimmer to Shimmer, excuse
me, Shimmer Effects product on your Plaintiff Fact
Sheet where you’re describing the -- the appearance of
the Shower to Shower product that you used, correct?
A Yes.
160a
Q When did you purchase -- first purchase
Shower to Shower Shimmer Effects powder?
A I have not got a clue.
Q How old were you when you purchased Shower
to Shower Shimmer Effects product?
A I have not got a clue. I mean, you’ve got to
remember that I am -- I could have been 50, which
would have been 40 years ago. I could have been 40,
which could have been 35 years, 40 years ago. I don’t
recall.
Q Did you purchase Shower to Shower -- strike
that. Did you purchase Shower to Shower Shimmer
Effects powder more than once?
A I honestly don’t know.
***
161a
APPENDIX J
_________
STATE OF MISSOURI
_________
Plaintiffs,
vs.

Defendants.
_________
Cause No. 1522-CC10417-01
_________
TRIAL TRANSCRIPT
Volume 18A
_________
June 26, 2018

_________
APPEARANCES
Mr. Eric Holland
Mr. Patrick Dowd
St. Louis, MO 63101
162a
Mr. W. Mark Lanier
Mr. Lee Cirsch
Ms. Rachel Lanier
Ms. Monica Cooper
6810 FM 1960 West
Houston, TX 77069
Mr. Peter A. Bicks
Ms. Lisa T. Simpson
Ms. Nina Trovato
Ms. Alyssa Barnard
Ms. Anne Malik
Ms. Shasha Zou
Ms. Shaila Diwan
Mr. Matt Bush
51 West 52nd Street
New York, NY 10019-6142
HELPER BROOM LLC
Mr. Thomas J. Magee
Ms. Beth A. Bauer
St. Louis, MO 63102
SHOOK HARDY & BACON

Mr. Mark Hegarty
163a
_________

_________
PROCEEDINGS
***
[Direct Examination of Dean Felsher, M.D., Ph.D.,
by Mr. Lanier,
pp. 3590:19-3591:14, 3593:2-3594:10]
***
Q Clora Webb. Also not with us. You didn’t have
a chance to visit with her, did you?
A No.
Q Papillary serous adenocarcinoma IIC. What is
that?
A The most common type of ovarian cancer.
Q BRCA not known. No family history. We don’t
know about that, but no family history’s a good thing?
A Right.
Q Two children?
A Benefit.
Q Positive tobacco. Does it matter with that?
A No.
164a
Q Negative for alcohol.
A Doesn’t matter.
Q Talcum powder usage as an adult for 43 years.
My question is: Did asbestos directly contribute to
cause the ovarian cancer of Clora Webb?
A Yes.
Q Same reasons?
A Same reasons.
***
Q And our last plaintiff to look at is Marcia
Hillman. Obviously, did not get to meet with her, but
did you get to visit with her daughters?
A I didn’t get to visit, I was able to talk by phone.
Q Oh, okay, that’s good. Serous adenocarcinoma
IV. And I think we’ve got it by now, but for the record
we have to put it down because we got to make a
record for each of these. Sorry for having to go
through the same thing each time.
Serous adenocarcinoma IV, what is it?
A Most common type of ovarian cancer.
Q And IV, advanced stage?
A Advanced stage.
Q BRCA negative. That’s a good thing?
A Good thing.
Q Tubal ligation?
165a
A May be helpful.
Q May be. Children times three breastfed?
A Both good.
Q Family history, breast cancer. Her maternal
grandmother?
A Bad thing.
Q Tobacco and social alcohol. Does that matter
with her cancer type?
A No.
Q You’ve got her history. Pediatric talc as a child,
as an adult around 40 years.
My question for Marcia Hillman as has been for the
rest of these ladies. Did asbestos directly to cause her
ovarian cancer?
A Yes.
Q Same reasons?
A Same reasons.
***
166a
APPENDIX K
_________
STATE OF MISSOURI
_________
Plaintiffs,
vs.

Defendants.
_________
Cause No. 1522-CC10417-01
_________
TRIAL TRANSCRIPT
Volume 24A
_________
July 5, 2018
_________
APPEARANCES
Mr. Eric Holland
Mr. Patrick Dowd
St. Louis, MO 63101
167a
Mr. W. Mark Lanier
Mr. Lee Cirsch
Ms. Rachel Lanier
Ms. Monica Cooper
6810 FM 1960 West
Houston, TX 77069
Mr. Peter A. Bicks
Ms. Lisa T. Simpson
Ms. Nina Trovato
Ms. Alyssa Barnard
Ms. Anne Malik
Ms. Shasha Zou
Ms. Shaila Diwan
Mr. Matt Bush
51 West 52nd Street
New York, NY 10019-6142
HELPER BROOM LLC
Mr. Thomas J. Magee
Ms. Beth A. Bauer
St. Louis, MO 63102
SHOOK HARDY & BACON

Mr. Mark Hegarty
168a
_________

_________
PROCEEDINGS
***
[Proceedings outside the presence of the jury
Re: Scheduling,
pp. 5039:6-5040:13]
***
THE COURT: But we’ve got 400 jury instructions
that have to be read.
MR. BICKS: Right.
THE COURT: So that has to be the day before
Wednesday.
MR. BICKS: Right. Or possibly, you know, end of
the day Tuesday and then continuing into Wednesday
with the closings, for example, Wednesday afternoon,
but I hear what you’re saying.
THE COURT: Yeah, I think for both sides -- it’s most
beneficial for both sides that the jury goes up to the
deliberation room and not home after closings.
MR. LANIER: Yeah.
169a
THE COURT: So, maybe I’m wrong, but that’s
typically how attorneys like to close and then
deliberations start, not close and go home. So, that’s
where we are.
There may be some other options of through the
weekend with Dr. Holcomb. Or as Dr. Moline was
handled through some kind of video, live video, but I
really am firm that we need to read these instructions
and have enough time to read them and give the jury
breaks, because we went through last Tuesday
afternoon, we had this discussion, and I’m frankly
concerned about losing the jury on about Instruction
Number 150, so that’s why I feel we need to do it at a
pace that gives them breaks. I think we discussed
about putting the instructions on the overhead while
I’m reading those. I really think that that’s to
properly present 400 instructions to the jury and we
have to take a day to do that.
Anything else? That’s kind of the state of the case
where we are right now. Court will be in temporary
recess.
(Court was held in recess for the noon hour.)
170a
APPENDIX L
_________
STATE OF MISSOURI
_________
Plaintiffs,
v.

Defendants.
_________
April 18, 2018

_________
Case No. 1522-CC10417-01
Division 10
_________
AFFIDAVIT OF STEVEN D. PENROD

_________
BEFORE ME, the undersigned authority,

personally appeared the affiant named below, who
being by me duly sworn, deposed as follows:
1. My name is Steven D. Penrod. I am over 18 years
of age. I submit this Affidavit in support of
Defendants’ Memorandum of Law in Support of
Motion to Sever Plaintiffs’ Claims for Improper
Joinder in the above-referenced matter. I am of
sound mind, and if called as a witness, I could
171a
and would competently testify to the statements
herein.
2. I am a Distinguished Professor of Psychology at
the John Jay College of Criminal Justice of the
City University of New York. I hold a J.D. degree
from the Harvard Law School, and a Ph.D.
degree in social psychology, also from Harvard
University. I have testified as an expert on a
variety of social science and law issues in over
150 cases in federal and state venues, including
Wisconsin, Minnesota, Illinois, Ohio, Indiana,
California, Texas, Oklahoma, New York, New
Jersey, Maine, Connecticut, Massachusetts, New
Hampshire, Maryland, the District of Columbia,
Virginia, Delaware, and Pennsylvania. I am an
author or co-author of approximately 150
publications. I have specialized in the study of
the legal and psychological aspects of decision-
making by juries for more than 35 years, am
conversant with the literature on consolidation of
claims and parties and have published research
on the specific topics discussed in this affidavit.
My professional qualifications, including
publications, grants, awards, and memberships
are set forth more fully in my curriculum vitae,
attached to this affidavit as Exhibit A.
3. I have been asked to render an opinion on: (1) the
likely effect that consolidation of the claims of
multiple plaintiffs against Johnson & Johnson,
Johnson & Johnson Consumer Inc. and Imerys
Talc America for trial will have on the jury; and
(2) the efficacy of limiting instructions designed
to overcome the prejudice stemming from such
consolidation.
172a
4. In my opinion, if the claims of multiple plaintiffs
are presented to the same jury, the result will be
unfairly prejudicial to defendants because there
is a substantially greater likelihood that the jury
will find defendants liable and will award greater
damages to the plaintiffs. It is also my opinion
that jury instructions will not mitigate this
unfair prejudice.
5. In forming these opinions, I have reviewed the
relevant psychological research literature
summarized below and listed in Exhibit B
hereto.
6. I base my opinions on scientific studies of jury
decisionmaking in which jurors are confronted
with multiple charges or claims, as well as
studies in which jurors are confronted with
evidence that is intended for use in either a
limited manner or that jurors are instructed not
to consider at all. In my opinion these studies
clearly show that unfair prejudice results when
jurors are exposed to information about other
claims or charges against a defendant.
STUDIES ADDRESSING THE
EFFECTS OF CONSOLIDATION
7. A number of researchers have studied the effect
that consolidation of charges/claims against a
defendant has on jury decision making. The
studies in this area clearly and fairly uniformly
demonstrate that when evidence of consolidated
claims is presented to a jury, the jury is
substantially more likely to find against a
defendant on a given claim than if it had not
173a
heard evidence of the other claims. Although
some of this research has been conducted within
the context of criminal cases, it is directly
relevant to the issues raised in the present civil
cases because the research underscores the
difficulties jurors have in keeping trial evidence
neatly compartmentalized. The research further
demonstrates the ways in which inappropriate
use of evidence can produce prejudicial effects.
The research also underscores my opinions that
jurors are likely to misuse evidence presented
about multiple plaintiffs/claims, that the result
will be prejudice against defendants, and that
efforts to constrain the jury’s use of the evidence
in order to avoid consolidation prejudice are
extremely unlikely to succeed.
8. Among the studies supporting the conclusions
above are: Bordens & Horowitz (1983);
Goodman-Delahunty, Cossins & Martschuk
(2016); Greene & Loftus (1985); Horowitz &
Bordens (1988); Horowitz & Bordens (1990);
Horowitz & Bordens (2000); Horowitz, Bordens,
& Feldman (1981); Leipold & Abbasi (2006);
Tanford & Penrod (1982); Tanford & Penrod
(1984); Tanford & Penrod (1986); Tanford,
Penrod, & Collins (1985); Thomas (2010); White,
(2006) and Wilford, Van Hom, Penrod &
Greathouse (in press). Nearly all of these and
other consolidation studies cited below have been
published in peer-reviewed scientific journals.
Most of my research and many other studies
have been supported by grants from such as the
National Science Foundation and the National
Institute of Justice and these studies were
174a
subjected to peer review even before they were
funded and conducted. Complete references to
the studies cited in this affidavit are provided in
Exhibit B hereto.
9. These studies reveal the difficulties jurors
confront when trying to sort out evidence that is
relevant to particular issues or parties and not
relevant to other issues or parties. The research
shows that consolidated trials result in: (1)
inferences by the jurors that a defendant has a
bad character; (2) cumulation or spilling over of
evidence against the defendant; (3) confusion of
evidence; and (4) changes in weight of
evidence (i.e. the tendency of jurors in such
cases to give greater weight to
plaintiff/prosecution evidence, relative to defense
evidence). All of these factors have been shown
to result in prejudice against defendants. A
consolidated trial of these cases will therefore
likely lead jurors to draw negative inferences
against defendants and increase the likelihood of
a pro-plaintiff verdict. It is also likely that jurors
will cumulate “evidence” across claims, confuse
the evidence presented by various plaintiffs and
give greater weight to individual items of
plaintiff evidence than would be the case if the
claims were tried separately.
***
51. Based upon the foregoing, I conclude that it
would be highly prejudicial to defendants if
multiple claims against them were consolidated
for trial. I anticipate that consolidation would
cause jurors to draw negative inferences about
175a
the defendants, enhance the apparent probative
value of evidence against the defendants, prompt
confusion and accumulation of evidence against
the defendants and prejudicially increase the
risk of liability findings, damages and punitive
damages awards against the defendants. I
further conclude that limiting instructions and
deliberation by jurors are extremely unlikely to
overcome these multiple sources of prejudice. By
far the most effective method of avoiding the
problems detailed above is to try each claim
separately before separate juries.
Further Affiant sayeth not.
/s/ Steven D. Penrod
Steven D. Penrod
SUBSCRIBED AND SWORN TO before me on this
18th day of April, 2018.
/s/ Edward Canora
Notary Public In and For
The State of New York
My Commission Expires:
9/07/18

J&J - Talc - Ingham Petition For A Writ of Certiorari

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No.

JOHNSON & JOHNSON and

Counsel for Petitioners

(Additional counsel listed on inside cover)

ROBERT M. LOEB KRISTINA ALEKSEYEVA

E. JOSHUA ROSENKRANZ NEAL KUMAR KATYAL

Counsel for Petitioners

IN THE MISSOURI COURT OF APPEALS

Appeal from the Circuit Court of

Honorable Rex M. Burlison

Filed: June 23, 2020

This Court has confirmed that, after Bristol-Myers, out-of-state

Product but, rather, asserts eight causes of action alleging

meetings for the Products in Missouri, Plaintiffs do not argue

[T]here are no allegations of any contracts between the[

placed in commerce an unreasonably dangerous product with

Kurt S. Odenwald, J. and

JOHNSON & JOHNSON, et al.,

The Court has before it Defendants’ Johnson &

Dated: December 19, 2018

JOHNSON & JOHNSON, et al.,

The Court has before it Defendants’ joint motion to

Dated: May 15, 2018

JOHNSON & JOHNSON, et al.,

The Court has before it Johnson & Johnson and

Dated: May 15, 2018

JOHNSON & JOHNSON, et al.,

The Court has before it Defendants Johnson &

JOHNSON & JOHNSON, ET AL.,

Now at this day, on consideration of the Appellants’

/s/ Betsy AuBuchon , Clerk

JOHNSON & JOHNSON and JOHNSON & JOHNSON

July 28, 2020

Appellant’s Application for Transfer to Missouri

JOHNSON & JOHNSON, et al.,

SHOOK HARDY & BACON

JENNIFER A. DUNN, RPR, CCR #485

JOHNSON & JOHNSON, et al.,

June 14, 2018

SHOOK HARDY & BACON

JENNIFER A. DUNN, RPR, CCR #485

JOHNSON & JOHNSON, et al.,

June 26, 2018

SHOOK HARDY & BACON

JENNIFER A. DUNN, RPR, CCR #485

JOHNSON & JOHNSON, et al.,

SHOOK HARDY & BACON

JENNIFER A. DUNN, RPR, CCR #485

JOHNSON & JOHNSON, et al.,

April 18, 2018

AFFIDAVIT OF STEVEN D. PENROD

BEFORE ME, the undersigned authority,

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