Litigation Update: Johnson & Johnson v. Ingham

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Dean Reuter:  Welcome to The Federalist Society's Practice Group Teleforum conference call as today, May 6, 2021, we get a Litigation Update on Johnson & Johnson v. Ingham. I'm Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society.

 

      Please note that all expressions of opinion are those of the expert on today's call. Also, this call is being recorded for use as a podcast and will likely be transcribed and put on The Federalist Society's website. I also want to make a note that we are open to the public today and open to press as well.

 

      With that, our topic today is Johnson & Johnson v. Ingham. It's a multiple plaintiff trial that's of interest to me and hopefully of interest to you. We're welcoming a guest to our program, John Reeves. He's the founder and a member of Reeves Law LLC. He's going to give us opening remarks of two to five minutes or so, then I think we're going to proceed by an interview fashion since I'm interested in this. I'm going to ask him a series of questions, and at some point very soon, we'll be turning to the audience for your questions, so please have those in mind for when we get to that portion of the program.

 

      With that, John Reeves, the floor is yours.

 

John Reeves:  Thank you, Dean. It's a pleasure to be here. This discussion today concerns, as Dean said, the case of Johnson & Johnson v. Ingham, a cert petition currently pending before the Supreme Court of the United States. The case has not yet been distributed for a conference. We expect that to happen sometime in June.

 

      For a full disclosure, I authored an amicus brief supporting the granting of cert in this case on behalf of the Missouri Organization of Defense Lawyers, which is Missouri's local equivalent, basically, of the Fed's Research Institute. But all the opinions I’m expressing here are solely my own. I have not consulted with Johnson & Johnson in terms of what I’m about to say, nor am I receiving any compensation from Johnson & Johnson regarding any of this.

 

      This case is a multi-billion, that's billion with a B, jury verdict against Johnson & Johnson over the use of talc that occurred in Missouri, specifically in the City of St. Louis. I emphasize the City of St. Louis because that will be relevant as we go on to discuss this.

 

      It's what we call a multi-plaintiff trial. In other words, it is a non-class action lawsuit that was brought by multiple plaintiffs, 20 plus plaintiffs, against Johnson & Johnson and one of its subsidiaries for the use of talc. It was brought in the City of St. Louis. However, the vast majority of the plaintiffs in question did not actually use the talc in St. Louis, and in fact, most of them are not from St. Louis to begin with. They don't even live in Missouri. They live in -- I believe it's -- I forget the exact number. It's 10 plus different states outside of Missouri, I believe, that the plaintiffs are from. Nevertheless, they brought all of these -- they consolidated all of their cases into one case against Johnson & Johnson in the City of St. Louis.

 

      And to give the audience a sense of how complex this matter ended up being because of all their different factual claims, it took the trial judge over five hours to read the jury instructions to the jury before the jury retired to deliberate and determine a verdict. And at the end of the day, the jury ended up coming back after deliberating about eight hours, which may seem like a long time, but in my opinion, given the complexity of this, really isn't when you consider the jurors can go for several days in deliberating a verdict.

 

      And they awarded a flat -- the same amount of damages to each plaintiff. I believe it ended up totaling $25 million to each of the individual plaintiffs. And I forget the exact number for punitive damages. It ended up being about $1.2 billion against each of the plaintiffs. Basically, even though each of the plaintiffs had different and unique characteristics, the jury basically came up with a number, divided it by the total number of the plaintiffs, and awarded that number to each of them.

 

      Johnson & Johnson then appealed to the Missouri Court of Appeals Eastern District, which is also in St. Louis, and they largely affirmed. Johnson & Johnson raised multiple matters, some of which are at issue in the cert petition, some of which are not. At the end of the day, the Missouri Court of Appeals issued a published opinion that it dismissed the case against, I believe it was -- I can't remember the exact number of plaintiffs, but several of the non-Missouri plaintiffs, finding that punitive damages did not exist -- I apologize, finding that personal jurisdiction did not exist for several of the non-Missouri plaintiffs under the Missouri Supreme Court's more recent personal jurisdiction.

 

      This is before the Ford case. I want to emphasize that's important for our later discussion. And they ended up reducing the total amount of damages from over $4 billion to just over $2 billion. Johnson & Johnson then sought discretionary review in the Missouri Supreme Court which, to everybody's surprise, including my own, the Missouri Supreme Court declined to hear the case. And so now Johnson & Johnson is seeking certiorari in the Supreme Court of the United States.

 

      In it, they are raising three issues, basically. The first issue is that this multi-plaintiff trial was so -- it was inherently confusing to the jury. The fact that the jury returned an identical verdict for each of the plaintiffs with no variance shows that, combined with the fact that it took the trial judge five hours to instruct the jury, shows that this was inherently confusing and that the jury more or less just decided to do -- that basically, there's no way any rational jury under these circumstances could reasonably be expected to parse and go through each of the unique factual circumstances of the plaintiffs.

 

      The second issue is the excess of the punitive damages verdict. As I said, each individual was awarded about $25 million in punitive damages, whereas the -- I apologize, about $25 million in actual damages, but then was awarded several billion dollars of punitive damages. Johnson & Johnson's arguing that the ratio of punitives to actual damages far exceeds what the U.S. Supreme Court has said is normally acceptable in these situations.

 

      The third is that under U.S. Supreme Court precedent, Johnson & Johnson was entitled to have the case dismissed against the non-Missouri defendants. And while the cert petition was filed before the U.S. Supreme Court issued the Ford case—as you all know, Ford has been decided now—Johnson & Johnson asked that at the minimum as an alternative to granting certiorari that at least the Supreme Court GVR, grant, vacate, and reverse the verdict in light of what was at the time the upcoming Ford decision. Of course, now the Ford decision has been decided.

 

      So those are the issues, and this is also relatively, I won't say extremely rare, but relatively rarer in that we're seeking cert not from in a state court case not from a state court of last resort, but from an intermediate first level state appellate court, which makes this case, in my opinion, even more interesting. And again, it's not the rarest of things, but it is something that obviously you don't see every day. So that is basically the summary of what the procedural matters are, and with that, I'm happy to take questions.

 

Dean Reuter:  Terrific. Well, thank you so much. If you joined us late, we're speaking about the Johnson & Johnson cert petition. We've got John Reeves on the phone. Those were his opening remarks. I've got some questions, but let's go ahead and open the floor to questions.

 

      Let me ask you, while we're waiting to see if people queue up, you've sort of covered a little bit what makes this case special and how it's different. But I wonder if in addressing that question, you can specifically talk a little bit more about multi-plaintiff trials and how they're different from class actions. You mentioned multi-plaintiff is different than class action, but can you talk about how it's different exactly?

 

John Reeves:  Absolutely. I'm happy to. So basically, I think the best way to do that is to give an overview first of how class actions work. That way that'll make it easier to understand why multi-plaintiffs trials are, in many ways, more unique than class actions.

 

      So class actions are -- they're a Hollywood favorite, the big class actions. Everyone banding together against the so-called big, bad corporations. We see this a lot in Hollywood and in different pop culture references. But at the end of the day, class actions basically are where there are potentially multiple claims by hundreds if not thousands, if not hundreds of thousands of individuals against a particular defendant. And obviously, in that case, it's inherently difficult, if not impossible, for all of those claims to be brought in multiple trials.

 

      So what the federal rules of civil procedural allow is for one or several, not many, but for what are called class representatives to bring a single lawsuit on behalf of the entire class at the beginning. If the case is allowed to proceed as a class action, which I'll explain later how that works, any verdict that's received is put into a, as I understand it, into a fund and then members of the class are mailed, are sent, are notified of this, "Hey, we won this, you're eligible for this, and you can get a piece of the pie," so to say.

 

      But critically, what's not done in class actions is each individual class member's unique circumstances are not individually weighed in determining the liability and/or the extent of the defendant's liability. And there are strict rules of how this happens. After the plaintiffs, the class members, bring a lawsuit, they have to show to the court that—there's several requirements—that there's a common issue of fact, that this commonality predominates over any specific individual requirements. There's a couple other matters, but the point is that the federal civil procedure and the due process requirements for the Fourteenth Amendment say that you have to prove these. You have to show that there's some aspect of commonality as to the facts or the legal questions over the individual matters.

 

      And if that's the case, then the court will say, "Okay, there's no problem with this. You can go ahead with this. This won't be that confusing." And any verdict rendered in that case is for not just the particular plaintiffs, but all the class members. And the class members later on can then go and, as I said, get a piece of the pie.

 

      And the defendant can oppose class certification, and if class certification is granted or denied, there's even a chance for interlocutory review by the appellate courts. That's a whole other story. We could do a whole separate phone conference on that because of how complicated it is. But at the end of the day, my point is that there are specific due process procedural requirements in place to make sure that class actions proceed in a way that both allows multiple individuals to -- that's a bad way of putting it. It allows claims to be brought on behalf of possibly hundreds of thousands of individuals without the defendant's due process rights being violated.

 

      So multi-plaintiff trials, jury trials, and claims, on the other hand, they don't have to anything to protect the due process protections of the rules of procedure that apply for class actions. Literally, you have multiple plaintiffs bringing all of their individual claims in a single lawsuit against a single defendant or, in this case, Johnson & Johnson and its subsidiary. And all the individual plaintiffs present their individual unique facts in the jury trial to the jury, and the jury has to be instructed on each of the individual defendants -- I apologize, each of the individual plaintiff's claims, and the jury has to go out and review the evidence as to each of the individual plaintiffs. And, as I said, in this case you had 20 plus individual plaintiffs with unique circumstances who all presented their matters.

 

      And not only that, but in multi-plaintiff cases, you have to -- for example, several of the plaintiffs in this case used Johnson & Johnson outside of Missouri. Because of that, the states where they resided, the law of their states applied, not Missouri law. So the judge literally had to instruct them, the jury, not only on the unique situations of each of the plaintiffs, but on the law of the outside non-Missouri states of each of the plaintiffs. So I believe it was -- I apologize, I don't have the numbers before me, but it was somewhere between eight and ten non-Missouri states the judge had to instruct them on. It's a very much more procedurally demanding matter.

     

      What I'm happy about with this case is that from what I can tell, this is one of the first instances I've seen of a serious, legitimate challenge being made to the due process problems inherent in multi-plaintiff trials. I've been concerned about this for some time. For example, it's normal in the asbestos world for one plaintiff to sue dozens of defendants over asbestos products use. And usually that isn't a problem because you can parse out -- you'd still have one plaintiff's claims. It's the plaintiff's burden of proof to determine that each of these defendants violated his or her rights. And you're still only looking at the unique factual situation of that one plaintiff. What products did that one plaintiff use? How did he or she use them, etc., etc.?

 

      Multi-plaintiff trials, on the other hand -- oh, I'm sorry. Were you going to say something? I didn't want to be talking over you.

 

Dean Reuter:  No, no. I was just nodding along. Go ahead.

 

John Reeves:  Okay, great. So with multi-plaintiff trials, you literally have to look at each of the unique factual situations of each of the plaintiffs. I will tell you that one of the things that I -- one of the reasons I've been following this case, this Johnson & Johnson case, is because I've been concerned about these multi-plaintiff trials for a long time. We have due process protections in place to ensure that class action lawsuits proceed in a way that addresses the legitimate concerns of both sides.

 

      On the one hand, you certainly do have situations where so many people could have similar claims against a single defendant that you need a process to streamline it in the sense it conserves judicial resources and it simplifies the matter for everyone, but at the same time, that protects the defendants due process rights. You don't really have anything like that here. You ostensibly -- go ahead, please, go ahead.

 

Dean Reuter:  I was just going to ask you. I'm familiar somewhat with the class action rules, and they're written out, and I think they are written out in a way that's designed to preserve due process and make sure there's a structure and a process for bringing class actions. What rules actually govern multi-plaintiff cases? Are they just the ordinary rules of civil procedure? And in conjunction with that question, which came first here? Did we have class actions developed under rules, and then these multi-plaintiff cases seem like a way to evade the class action protections?

 

John Reeves:  You know, that is a great question. I'll answer that in two parts. First, I'll answer the part as it relates to the rules developing, then the second I'll ask in terms of the historical development of when multi-plaintiff class action lawsuits started.

 

      So in terms of the rules, so this case arose in Missouri. The Missouri -- we don't call them the Missouri -- well yeah, we do call them the Missouri Rules of Civil Procedure. They're part of the Missouri Supreme Court rules. The rules that basically apply in this situation that the court applied are the Missouri rules governing joinder of actions and severance of actions. And those rules basically parallel what the federal rules are. And I noticed this from the very beginning, and this is one of the things that troubled me, that while those rules apply, they were never designed, really, to apply in mass, in my opinion at least, in mass plaintiff cases like this.

 

      So typically, when you think of joinder and severance of claims, you think of, okay, the plaintiff brings a case against the defendant. Can the defendant then move to join as a co-defendant, someone who the defendant thinks may be jointly or severally liable? And you can see why that makes sense.

 

      And likewise, I suppose I could see a situation in which a plaintiff can bring a case and moves to -- and then there's, I don't know, another -- like if you have a car accident, for example, and the plaintiff sues the auto insurer of the car, and then someone who was a passenger in the car with the plaintiff who also got injured and wants to bring a lawsuit as well, for whatever reason wants to join in the plaintiff's action, that's the situation that those rules were designed for. At least that's my understanding. And like I said, those rules parallel -- the Missouri rules on joinder and severance parallel the federal rules. As far as I know, they both arose around the same time. But as I said, at the time that they -- and this is where I -- so that's the rule history.

 

      Now I'm going into the historical matter. But as I said, when they were developed, it's my understanding, you didn't have these kind of mass multi-plaintiff non-class action matters. And yes, I believe it's -- I don't have any hard data on this, but I would not at all be surprised if these multi-plaintiff claims arose after class action, as you said, exactly for the precise purpose of avoiding class certification. Go ahead.

 

Dean Reuter:  And whether they arose before or after, it seems like the phenomenon here is trying to fit a square peg in a round hole where you've got multiple plaintiffs and different sets of facts, different damages, maybe different usages of products, misuses of products.

 

John Reeves:  Exactly.

 

Dean Reuter:  And you're in a court system that designed for more of a -- and the rules that are designed for more of a one versus one in terms of one plaintiff versus one defendant. Is that accurate?

 

John Reeves:  I think that's very accurate, and frankly, I think you can see that in the opinion that the Missouri Court of Appeals issued in this case. As I was reading it through, and I want to make clear as a disclaimer, I practice before the Missouri Court of Appeals regularly. They've got very fine judges on there, and I'm not, obviously, trying to personally disparage any of them.

 

      But the thing that struck me in reading it -- I didn't think about it in these terms at the time, but you just described this trying to fit a square peg in a round hole. That really is the sense I was sort of feeling as I was reading the portion of the Court of Appeals opinion on the whole joinder issue because while they did -- so Johnson & Johnson raised this argument. Look, this is inherently confusing. It takes five hours to read the jury instructions here.

 

      The trial judge himself, who -- the trail judge in this case, Judge Rex Burlison -- I've never been before him, but he's a man of outstanding intellect himself. He's one of the best trial judges in the state. He even admitted that at the beginning when he was reading the jury instructions, that he was concerned about losing the jury, that the jury was going to just inadvertently throw up their hands because of the confusion. But he proceeded anyway.

 

      But my point is, but the problem is -- and so Johnson & Johnson raised all this in their appellate briefing, but the court, in responding to it, gave -- I don't want to say a superficial response, but it was almost like it was talking past Johnson & Johnson. And because I think, as you say, the framework in which they were working, these traditional rules of joinder and severance really don't fit into this situation.

 

      Their opinion was very conclusory in the sense that, oh well, any error or confusion that may have happened would have been cured by the jury instructions. But that's sort of circular reasoning, if you will. Any joinder and severability problems are cured by the jury instructions, but then the jury instructions took five hours to read. Well, that's not a problem because traditional issues of joinder and severability were not violated here.

 

      Again, it really didn't go into a deep discussion of the inherent problems of this. I don't think that was the fault of the Court of Appeal. I think, like you said, it's more the fault of the fact that this situation calls for an analysis beyond what the traditional notions of joinder and severability are.

 

Dean Reuter:  You mentioned, with regard to class certifications, and I think probably most of our audience -- we are getting some audience questions. We'll get to those momentarily. But when you bring a class action, there's a certification process where the court has to say, "Yes, you quality for as a class." Is there a moment in these multi-plaintiff cases where the court has to say definitively, "Yes, you qualify. These 20 plus plaintiffs can hang together in one case." Is there a meaningful opportunity for a defendant to say this just shouldn't go forward the way it's configured?

 

John Reeves:  Well, let me think about that for a moment. There really is no one definitive moment beyond -- there's only two possible moments. It's my understanding in this case that the plaintiffs all brought their lawsuits separately but then moved to consolidate them. So at that point in moving to consolidate them, they did that under the traditional aspects of joinder. The plaintiff moves to join them. Defendant can then object, and then they can also make the argument, no, you need to keep these separate, or even if joinder is proper -- so, yes.

 

      The court has to look one, is it proper to join these plaintiffs? And if that is the case, then they have to look at the second part is well, are these cases -- if joinder's even satisfied, should these cases still be kept apart because of severance requirements under due process? It sounds repetitive, but it really isn't. Go ahead, please.

 

Dean Reuter:  I was going to say, I get the nuance there. So once it's going forward, I want to talk about the plaintiffs in this case, if we could.

 

John Reeves:  Yes.

 

Dean Reuter:  And you mentioned that they're different plaintiffs with different stories and the confusion involved in a jury trying to sort it out. It seems like they just rounded things off and said everybody gets the same amount, so they're treating all the plaintiffs alike despite their different backgrounds and different uses of the product and whether they're in the state or not.

     

      When all these plaintiffs are presenting their individual cases, has liability already been assumed, so what they're talking about is the level and extent of their use and the level and extent of their damages? Can you say more about these plaintiffs, how they're different from one another, how they're similar, and give us more insights into that?

 

John Reeves:  Sure. Well, that's a funny thing. No, they all have to -- when they first present their matter, liability has not already been determined. They have to determine liability for each of them individually. Again, one of the -- so it's not like -- so if I understand your question right, it's not like all of them present a joint single case against Johnson & Johnson for liability alone, and then it's only at the damages that they go into uniqueness.

 

Dean Reuter:  That was essentially my question, yeah.

 

John Reeves:  No, the liability and damages, as I understand it, were basically tried together. And again, they only debated for eight hours. Now, in terms of the uniqueness of them, that's another thing that I was a little surprised at in the appellate opinion. It goes into a very summary fashion of how they're different, but it doesn't spend any time really discussing how unique all of the plaintiffs are.

 

      So for example, all of them used either Johnson & Johnson, I believe, it was either the baby powder or other uses of talc, and they're all claiming they were diagnosed with ovarian cancer. But again, each of them were of different ages. Each of them used it over a different amount of time in a different context. And I apologize I don't have more of the information on that in front of me. It's odd. The court opinion itself does not go into much of a discussion of the uniqueness of them, and that was really surprising for me.

 

      But as I've said, I believe it was over 10 of them come from states outside of Missouri, which means that the product liability law of each of those states had to be read to the jury and frankly, it’s a good question. Why did they bring this in St. Louis? Well, they most likely did because the City of St. Louis is a very friendly forum for these types of multi-plaintiff trials. And so yeah, that's the gist of that part of it, if you will. I hope that helps to answer your question.

 

Dean Reuter:  It does. Thank you. I've got one more question. We've got two callers with questions. Actually, let's go to a caller. I do want to hear more about what the Missouri Supreme Court -- you say they denied review. If they gave some reasons about why they declined to take the case, maybe you could address that, and then we'll turn to the audience.

 

John Reeves:  Yeah. Well, the long and short answer is no, they did not give any reasons for their denial. They did not give any -- it was just a very short order saying that they're -- in Missouri, we call it their discretionary review. We don't use a process called cert. It's called transfer, which that's a whole other Teleforum conference on the differences between that.

 

      But the Missouri Supreme Court just issued the very brief order with no explanation, denying transfer. Not only that, they did not even -- unless I'm mistaken, they -- I apologize. I should have known this before this. I don't believe the Missouri Supreme Court even requested suggestions in opposition from the plaintiffs in this matter, which again, is very surprising to me.

 

      And again, it's funny. I was having lunch with a very good, a very well established plaintiffs' lawyer here in St. Louis yesterday. We were talking about this, and he said he was stunned. Even he was stunned, and he's in favor of this verdict. He was absolutely stunned that the Missouri Supreme Court declined to hear the case.

 

Dean Reuter:  Okay. We do have two questions in the queue. Now, let's take our first question.

 

Juliette Fairley:  Yeah. This is Juliette Fairley with the St. Louis Record. My question is what does it indicate to you that the Missouri Supreme Court declined to review? What does it indicate to you about declinement currently and about the state of Missouri and the Missouri Supreme Court?

 

John Reeves:  Thank you for the question. Well, it's always difficult. No one can know for absolute certainty, but it is a fact that -- this is something I'm glad you asked because this is an opportunity for me to clarify this for our non-Missouri listeners. Most, if not everyone, listening to this right now probably knows that Missouri isn't just a red state. It's probably the reddest of the red states now. It's very politically conservative. It's very pro-business.

 

      But ironically, that conservativeness does not apply to the Missouri State judiciary. Traditionally, the Missouri State judiciary has one of the most pro-plaintiff friendly judiciaries in the country. And that goes to, for a variety of reasons that unfortunately I don't have time to get into, but in this instance, I personally think that the court just did not want to dive into this case, whether those were for political reasons or not, or creating the perception that Missouri's still a very plaintiff friendly state, I don't know.

 

      There have been a lot of attacks on the Missouri judiciary over the last 15 years, some of which, I think, have been some of the more respectful attacks—I won't call them attacks; I'll call them constructive criticisms—some of which I think have received -- have made good points, others of which have decided to call Missouri a judicial hellhole. That's something I certainly don't agree with.

 

      But I do think the Missouri Supreme Court, in this case, was concerned about the possible ramifications of taking this case. And I think it could have been just because this is such an undeveloped area of law. What are the due process requirements for a multi-plaintiff trial? This is something that, frankly, as the cert petition notes, has not been that well-developed, and it's crying out for the U.S. Supreme Court's attention.

 

      So I think that the Missouri Supreme Court just did not think it was a good idea for it to wade into this. I wish it did. I think that's the job of what judges of -- that's what judges are supposed to do. But in this instance, I think it just -- I don't want to say it got cold feet, but I think it just decided it was more prudent not to weigh in on it. But I will say that both the plaintiffs' bar and the defense bar here in Missouri were very surprised that the court did not take the case.

 

Juliette Fairley:  Thank you.

 

John Reeves:  You're welcome.

 

Dean Reuter:  Maybe I could ask a related follow-up question that would involve speculation, I suppose. But you've mentioned that the Supreme Court jurisprudence in the area of multi-plaintiff cases is not very well developed or it's not very well defined. Is there an effect of the Missouri court not taking review of this case in getting cert before the U.S. Supreme Court? Do you think that makes the case more likely or less likely to be granted, or is the U.S. Supreme Court going to be completely indifferent to that?

 

John Reeves:  That's a good question. That could go either way, and I say that because that touches on another issue I also wanted to talk about, the fact that cert's being sought not from a state court of last resort but from a lower state appellate court. That is actually not unknown to happen. It's funny. I used to work in the Missouri Attorney General's Office in the state capitol,  Jefferson City, and while I was there -- this was 10 years ago. I'll just share this little anecdote. Hopefully, this won't turn into a rabbit hole.

 

      While I was there doing criminal appeals, we had a criminal case—I wasn't directly on it—but my division had a criminal case out of the Court of Appeals in Kansas City in the lesser district at the same court. The Missouri Supreme Court refused to take the case. We petitioned the Court for cert, and they granted it. So my point is that it is not unheard of for the U.S. Supreme Court to take cert from a state intermediate appellate court.

 

      In fact, the Terry v. Ohio case -- we talk about the Terry stop, the feds stopping and frisking someone, and it's sometimes okay under the Fourth Amendment. That was actually taken cert from the Ohio intermediate court of appeals. The Ohio Supreme Court declined to take that, and then the Supreme Court decided to take that, and now we have what's known as the Terry stop. 

 

      Whether they grant that or not, I would tend to lean more toward I think that in this case the U.S. Supreme Court is going to look at and be -- again, it's all speculation, but I do think there's a good chance that the U.S. Supreme Court's going to look at this and be like, "Wait, why did the Missouri Supreme Court not take this? There may be something here more than just meets the eye at first place."

 

      Again, you can never know for certain, but yeah, that's my -- I also do know, and again, this is just another anecdote, but that Paul Clement actually recently had a cert petition on an arbitration issue out of the Missouri Court of Appeals Eastern District that he was trying to get cert on. This is about a year ago. And the Missouri Supreme Court had declined to hear the case and the -- I forget what the case was, but it was a case involving arbitration.

 

      Paul Clement was representing the petitioners, and the U.S. Supreme Court -- actually, it become one of serial relist cases for the Court's October 2019 term docket. It was relisted multiple times for three months before unfortunately, they denied cert. But my point is that this is not -- I think the justices on the Court, they're familiar with at least one other instance recently of the Missouri Supreme Court declining to hear a case where there's a major issue and then taking a look at it. So I'm cautiously optimistic that this may actually help cert being granted.

 

Dean Reuter:  Interesting. Well, we've got about 20 minutes remaining. We still have two callers in the queue, and let's turn now to our next caller.

 

Caller 2:  Yes, thanks very much. Fascinating topic, and I wish I knew more to ask more intelligent questions. Maybe this will continue to be some of the primer for this area. I was wondering if you could help me understand if this is distinct -- Dean has done a great job of distinguishing this from class actions, but I’m wondering how it differs from multi-district litigation? So that's kind of the first question.

 

      The second, related to that, is who the moving party or parties either can be or were in this case with respect to the question of joinder because, generally, the fight on personal jurisdiction has been the defendant trying to avoid personal jurisdiction. Plaintiffs, if they're willing to consent or move for joinder, that seems like they're picking the battlefield, and therefore, they should be willing to live with the consequences.

 

      And further related to that, and I'm a little rusty in my civil procedure, but it seems like there could be situations in which this could kind of auger in the defendants favor, especially in a fact sense situation where collateral estoppel is teed up. I'd rather tie as many plaintiffs into -- if I’m a defendant, and I got the opportunity to tie as many plaintiffs into certain factual findings in a single adjudication rather than try the cases seriatim, and the first one that loses, every subsequent plaintiff can then use that against me. So I was curious if you could comment on those various different dimensions of the question.

 

John Reeves:  Sure, sure. Thank you. I will take the second and the third question prior to the first. So in your second question, I believe it was, when does joinder move and why would a plaintiff do that, seek that when it sort of waives -- it's sort of a consent to personal jurisdiction. Well, that part goes to the nature of the venue where this was tried. As I said before, Missouri, despite its conservative political reputation, its judiciary's typically very pro-plaintiff. But within that, the place where this was tried in St. Louis is not only the most plaintiff-friendly venue in the state, but it's one of the most plaintiff-friendly venues in the entire country.

 

      And that is a place where you ask any plaintiff's attorney in this country who handles either tort cases or product liability cases or any kind of tort case, "If you could try your case in any venue in this country you want, where would you want to go?" They would say one of two places, either St. Louis, downtown St. Louis, or right across the Mississippi River, literally across the Mississippi River in Madison County, Illinois, which is where there's more asbestos litigation than anywhere else in the country. It's a place where, frankly, no plaintiff's lawyer worth his salt is going to decline to bring a case in the City of St. Louis if there's any way he can get to it.

 

      Going to your second point about collateral estoppel, that's a good question. I had never thought about that before. The idea is if, to make I'm understanding your question right, of whether there could be situations where multi-plaintiff trials could be advantageous to a defense. I think the hypothetical you're proposing is, let's say multiple plaintiffs bring a case against a defendant. The defendant wins. Can the defendant then turn around and use that in a subsequent procedure, use like collateral estoppel to preclude the relitigation of any facts that were determined in the defendant's favor?

 

      That is an advantage if the situation developed. I think in the abstract, yes, that could. But in my personal opinion, any benefits to that are so far outweighed by the inherent problems that these multi-plaintiff trials bring that I just don't think that it's feasible because these multi-plaintiff trials take up so many years, they take up so many resources, and typically, they're brought in such defendant-hostile venues that any possible advantage that could happen from a possible defense verdict, it's just so hypothetical that I just don't see how that could -- I just don't see the benefits of that outweighing the cost. But it is a very good question. I’m glad you brought up, and I hadn't thought about that.

 

      Going back to your first question about multi-district litigation, that's actually a really good question too. I've actually been thinking about that in the back of my mind. What are the similarities and differences between these multi-plaintiff trials and multi-district litigation? And I will have to humbly admit that as much as I want to answer that, I actually am not as familiar with multi-district litigation as I wish I was to be able to answer that. Dean, do you know much about how multi-district litigation works? Can you give any insights into that?

 

Dean Reuter:  I know a little bit, but not being an expert, I'll hold my comments, I think.

 

John Reeves:  Okay. I guess what I'll -- all I'll answer, and again, this is very rudimentary. I've never done any multi-district litigation. It's something I'd love to get into someday. But to give an extreme hypothetical, let's say you have an airplane crash in, I don't know, rural Illinois. And it's a huge 747 with people from all over the country, all over the world. Well, where do you bring that? You have literally multiple plaintiffs able to bring a possible negligence case against the airplane company or whoever caused the accident, but where do you bring it?

 

      They all could bring it in their home venue. They could all bring it different places. So there, it's a matter where lawsuits are all filed in separate districts, but then they're consolidated. But beyond that, I don't know what the difference is. It's not the same thing as class action, but again, I'll stop speculating just so I don't end up -- if there's any multi-district litigation experts listening on this, I don't want to rile them up and start completely making a fool out of myself, so I'll stop there.

 

Dean Reuter:  Very judicious. We've got one question pending, and then our lines are open.

 

Nashoni Nadi (sp):  Hi. This is Nashoni Nadi from the Atlantic Legal Foundation. John, you mentioned that the trial lawyer, a very seasoned trial lawyer and one of the most respected trial lawyers in Missouri. And my question is, and this is involving speculation, how would a seasoned trial judge allow 22 cases to be consolidated? All of the plaintiffs have different histories, different exposures, different times in which they used the product, and the causation is -- how do you consolidate 22 completely different plaintiffs, one.

 

      And two, how was the scientific evidence admitted, because you have on hand all of these epidemiological studies with tens of thousands, hundreds of thousands of people, and then the science that was presented that was allowed before the jury was some guy who tested 35 bottles of baby powder specifically for the purposes that this litigation. So how does a seasoned trial judge allow this to happen?

 

John Reeves:  Thank you for your question. So going to your first one, how does the trial judge consolidate this? The answer to that is, as you noted, speculation. I don't know. I don't know what was going through the trial judge's mind when he did this. I will tell you, just fully, while I've never been before this particular judge trial judge, he is very highly respected. He was in the Missouri Attorney General's Office for well over a decade. I actually have to apologize. I think I initially referred to him as Rex Sheetfield (sp). That is not his name. His first name is Rex. I'm embarrassed that I forgot -- I've overlooked his last name. That's a mistake on my part.

 

      I don't know how he ended up consolidating this. I think it could go to -- and this isn't something unique to him. There is a tendency sometimes among trial judges where there is an issue of, hey, this is a big legal issue, but there's really no law developed on it. There is a tendency I've seen amongst some, not all, trial judges that in the instance like that, it's better to err on the side of overruling whatever party's objecting to this and thinking, well, that's a matter for the court of appeals to decide, not me. And since Johnson & Johnson was the one objecting to this, to doing that, that's what I would presume. But that's all I can speculate.

 

      Now, as to the science, I do know that -- I'll admit I have not read much into the science about this. I know that there was a least one very good amicus brief that was submitted in support of challenging the science on this. Beyond that, I can't comment much about the admissibility of the science matters because that's just not something that I've looked into particularly for what I did as far as the amicus briefing went.

 

Nashony Netty:  Thanks, John. 

 

John Reeves:  Oh, you're welcome.

 

Dean Reuter:  Everything you just said, John, reminds me that it seems to me, and I'm no expert, but we're back again to discussing the difference between class actions and multi-plaintiff litigation where class action has developed jurisprudence and rules. The stakes are changed when you have multiple parties. The coercive pressures to settle change as well, and I think that's why you get those due process protections that are memorialized in rules. In any event, just a bit of commentary there.

 

      You mentioned in your opening remarks -- I'll ask another question until we get another question on the line. Actually, we do have a question on the line, but since I started asking a question, let me lead you to discuss just briefly, if you could, the damages here, and what you see as the problem with the damages. It's something more than they're just too high overall. You mentioned, alluded to, the ratio, that is, the ratio of compensatory or actual damages versus punitive damages. Can you talk more about that in this case?

 

John Reeves:  Yes. So in doing this, this goes to the second issue that Johnson & Johnson has raised in its cert petition. Most of this talk has been on the first issue, the due process issues of these multi-plaintiff trials. The second issue is the awarded punitive damages. As most people know who follow this issue, or if you don't know this, you may be surprised to hear this, the Supreme Court has ruled that there is a substantive due process right to a reasonable -- that the defense have a substantive due process right to not have excessive punitive damages awarded against them.

 

      And I know a lot of people, especially in FedSoc circles, shudder at the even mention of the term substantive due process, but it is stare decisis. It developed in the late '80s and into the '90s. And the Supreme Court has -- they haven't given a definitive test for this, but they have indicated -- they most recently indicated this, and I believe it was 2003, that typically, when you look at the ratio of actual damages to punitive damages, ratios that exceed single digits, in other words, anything more than 1:9 in terms of actual to punitive damages are, if not inherently suspect, it's something that's more difficult to justify.

 

      I know I'm probably sounding a bit vague and opaque. It's not my intention. It's just because the U.S. Supreme Court in this area has never given a definitive test on this. But the Missouri courts have regularly upheld punitive damages where the ratio has been not just in the double digits, like 1:10 or above, but even over 1:100. And in this case, I believe that the ratio was -- and I apologize for not having directly in front of me. I believe it was something like 1:25. The explicit ratio is in the cert petition, but the ratio was above the -- it was into the double digits. And in my opinion, that is a problem.

 

      The other thing that I'm personally concerned about, and I didn't have time to address this in my amicus brief, but I can address this here, is that in my research in Missouri law going into punitive damages, one of the purpose of punitive damages, they're to punish. Well, I've even found a case that has held that punitive damages were allowable because the defense malice was demonstrated through how aggressively he was litigating the case.

 

      Now, I'm not -- to be clear why I'm saying here, they found it wasn't because of how the defendant had testified in the case in showing supposedly no remorse. But it was just a very fact that the defendant was still continuing to mount an aggressive challenge, even on appeal. There's at least one Missouri appellate opinion that I've found that it said that that shows that the punitive damages were right.

 

      Well, in my opinion at least, that creates a huge ethical conflict, especially with the defendant counsel, where it's the counsel's duty to defend the client vigorously, not at all costs, but to the best of his abilities. The Missouri courts are almost implying that that aggressive defense could somehow further justify punitive damages. And in my opinion at least, that is a huge problem.

 

      Now again, unfortunately, I didn't have time to go into this in my amicus brief, but it is something I wanted to mention here because I think that that is a huge problem. No one would say that a defendant who was convicted in a criminal matter who challenged his conviction on appeal, that the very fact that he challenged his conviction would say, well, this just justifies the high sentence he had. That may be justifiable if the judge finds that the defense showed no remorse on the stand, but to say that someone -- that punitive damages are justified because of a particular legal strategy that counsel took, to me at least, is incredibly problematic.

 

Dean Reuter:  Yeah, that does sound like it raises a few eyebrows. It looks like we've got one more question. We've got a couple minutes. Let's see if we can get a -- implore the caller to ask a concise question, and then we'll see if we can get a final answer.

 

Juliette Fairley:  Yes. This is Juliette with the St. Louis Record. My question is what precedent does it set the fact that the Missouri Supreme Court denied this this writ of certiorari or this writ -- what is it -- petition?

 

John Reeves:  It's called an application for transfer.

 

Juliette Fairley:  Okay. So what precedent does it set for other cases going forward?

 

John Reeves:  The long and short of that is in and of itself, none. The denial of an application for transfer is just like the denial of cert at the U.S. Supreme Court. It is does not amount to precedent. It is not something that's citable. I'm glad you asked that so I have the opportunity to clear this up. The denial of -- longtime FedSoc people who are listening to this and longtime followers of the U.S. Supreme Court will know this, but it's the same rule in the Missouri Supreme Court.

 

      When the Missouri Supreme Court declines to take a case, it's a short one-sentence order of denial. That order does not amount to precedent. And the denial, I want to make clear, in denying it, they’re not saying with that order that they necessarily even agree with what the court of appeals did. All they're saying is, "We are not going to take this case up right now. We're going to let this stand, but in denying it, we are not expressing any opinion one way or the other on whether this is the correct opinion." And it's the exact same thing with when the Supreme Court of the United States transfers cert.

     

      Just to sum this up real quick, I remember for a long time -- this was much more common 20 years ago than it is now. When the Supreme Court would decline to hear a case, sometimes it would be reported as the Supreme Court affirms the lower court decision of whatever the issue was. And that was always a pet peeve of mine because in declining to take a case, neither the Missouri Supreme Court nor the U.S.  Supreme Court is affirming a lower court decision. They're just saying, "We're going to let this stand. We express no opinion one way or the other on whether we agree with this. We're just not going to take this up, and we're going to let this stand."

 

Juliette Fairley:  Got it. Thank you.

 

John Reeves:  You're welcome. Great question.

 

Dean Reuter:  Any final 30 second thought before we adjourn?

 

John Reeves:  Yes, very quickly. One, the trial judge in this case, his name was Judge Rex Burlison. I want to apologize to him and to the entire St. Louis legal community for forgetting his name briefly. That's Judge Rex Burlison. He's a very fine judge.

 

      But just to wrap up my thoughts, regardless of the side you may take in this issue, I think that this is important because we need clarity from the Supreme Court of the United States on the procedural due process requirements for these multi-plaintiff trials. These multi-plaintiff trials are not going away any time soon. They're only going to become more and more common, and we need to have a clearer set of standards over what type of due process rights defendants are entitled to because, in my opinion, Johnson & Johnson did not get that in this case. And anytime where it takes the judge five hours to read the instructions to the jury, it's inherently problematic. So hopefully the Court will take the case and provide us with some more clarity in this matter.

 

Dean Reuter:  Very good. Well, my thanks to you, John Reeves. We certainly appreciate this. I have learned a lot. I hope our audience has as well. This has been a nice walk through a lot of interesting legal issues. And we'll look to you, perhaps, for a revisit of this or others as the Supreme Court moves forward or not with this case.

 

      I want to thank the audience as well for dialing in and for your thoughtful questions. A reminder to our audience, check our website, check your emails for notions of upcoming Teleforum calls. I can tell you that the week of May 17th is going to be our Executive Branch Review Conference, all virtual. It can be found on our website. There are CLE credits available for some portions of that program. It's a week-long program. Check it out and do plan to join us on our next Teleforum call. But until then that next call, we are adjourned.  Thank you very much, everyone.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.