In recent years, St. Louis has done much to earn a place on the American Tort Reform Association’s list of judicial hell holes. Not content to rest on its laurels, the St. Louis circuit court grabbed the headlines again last week with a draw-dropping $70 million verdict against Johnson & Johnson ($67.25 million, including $65 million in punitive damages) and Imerys Talc America ($2.75 million, including $2.5 million in punitive damages) in a case alleging that J&J talcum powder caused the plaintiff’s ovarian cancer.
This is the third massive punitive exaction imposed against J&J by a St. Louis jury in the on-going talcum powder litigation—even while courts in New Jersey have thrown out similar cases on the ground that the science does not support them.
We explained in a prior post why the first two punitive awards are unconstitutionally excessive. What we said in that post applies to the most recent verdict as well.
The nearly 29:1 ratio of punitive to compensatory damages is unconstitutional on its face under State Farm. Indeed, in the 13-plus years since State Farm was decided, there are no cases outside the terrorism context upholding ratios of this magnitude when the compensatory damages are over $1 million.
More importantly, the fact that there are more than 1,000 other plaintiffs raising the same claims means that even a 1:1 ratio would be unconstitutionally excessive, because if each of those plaintiffs were to receive an identical amount of punitive damages—$2.25 million—no one could credibly deny that the aggregate punishment—over $2.25 billion—would be excessive.
That is more—not less—true because J&J may wind up being exonerated in many cases. Allowing a plaintiff to collect punitive damages in excess of what would be permissible if every other plaintiff were to receive the same amount would deprive the defendant of the benefit of its exonerations in violation of the Due Process Clause.
Being included on ATRA’s hell hole list had the salutary effect of causing courts and/or legislatures in West Virginia, Mississippi, and elsewhere to begin to rein in the abuses that were occurring in the trial courts of those states. Hopefully, the same will be true of Missouri, and the appellate courts of that state will bring the punitive awards against J&J in the talcum powder litigation back within constitutional bounds—if not throw them out entirely.