Petition for Writ of Certiorari — Johnson & Johnson, et al., Petitioners v. Gail L. Ingham, et al.

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 NonResident 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 NonResident 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 Missouribased 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 BristolMyers 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

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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-340CEJ, 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, 08-478AA, 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 72021 (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 longarm 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

Plaintiffs’ claims.

“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 NonResident 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 NonResident Plaintiffs’ claims. We discuss whether an

adequate link exists between: (1) the fifteen NonResident 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 NonResident Plaintiffs’ Claims

JJCI argues the trial court erroneously exercised

specific jurisdiction over it in Missouri on the NonResident 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 NonResident 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 NonMissouri 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 BristolMyers, 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 BristolMyers, the “bare fact” JJCI contracted with Missouribased 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 BristolMyers 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 BristolMyers, 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 NonResident 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 NonResident 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 NonResident Plaintiffs had “questionable recollections” of

using Shimmer, its argument also fails. Under our

standard of review, we must “defer[ ] to the factfinding 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

Plaintiffs’ claims.

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 outof-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. 10980, 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 NonResident 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 NonResident 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. MidMo. 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

Defendants’ motion to dismiss for lack of personal

jurisdiction as to J&J on the fifteen Non-Resident

Plaintiffs’ claims.

Two Non-Resident Plaintiffs’ Claims

Because we find JJCI lacked minimum contacts

with Missouri relating to the claims of the two NonResident 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

Defendants’ motion to dismiss for lack of personal

49a

jurisdiction as to J&J on the two Non-Resident

Plaintiffs’ claims.

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 NonResident 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 offthe-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 crossexamination, 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. ColgatePalmolive 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-738516AS, 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 fourteenounce 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 “pseudoscience 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-J39JBT, 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

reliable principles and methods, and did not reliably

apply principles and methods to the facts, in violation

of section 490.065.”

Standard of Review

“The trial court has considerable discretion when

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-oddsyoull-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 earlyto-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 crossexamination 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

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.”

Standard of Review

“The trial court has considerable discretion when

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. 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

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.”

Standard of Review

“The trial court has considerable discretion when

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

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 crossexamination, 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 crossexamination, 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

80a

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

81a

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

82a

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.

83a

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

84a

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).

85a

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

86a

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 AsbestosForm 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 “talcbased consumer products have always been asbestos

free” but was later edited to read their “talc-based

87a

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

88a

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 preconcentration 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 preconcentration 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

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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.

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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

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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

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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.”

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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

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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

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