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Slemp v. Johnson & Johnson

Court of Appeals of Missouri, Eastern District, Third Division

October 15, 2019

LOIS SLEMP, Plaintiff/Respondent,
v.
JOHNSON & JOHNSON and JOHNSON & JOHNSON CONSUMER COMPANIES, INC., n/k/a JOHNSON & JOHNSON CONSUMER INC. and IMERYS TALC AMERICA, INC., f/k/a LUZENAC AMERICA, INC., Defendants/Appellants.

          Appeal from the Circuit Court of the City of St. Louis. Honorable Rex M. Burlison

          SHERRIB SULLIVAN, J.

         Introduction

         Appellants Johnson & Johnson, Johnson & Johnson Consumer Companies Inc., and Imerys Talc America, Inc. (hereinafter collectively Appellants) appeal from the judgment of the trial court entered after a jury found them liable to Lois Slemp (Respondent) for actual and punitive damages relating to Respondent's use of talc products. We reverse and vacate the judgment.

         Factual and Procedural Background

         The underlying case was commenced by 62 plaintiffs against Appellants for damages related to the use of talc products. Of the 62 plaintiffs, 61 were non-residents of Missouri. Respondent, a native of Virginia, was one of the non-resident plaintiffs.

         Respondent's claims were tried separately from the other plaintiffs' claims. Respondent alleged she had used Appellants' talc products for many years, and in 2012 developed cancer as a result. The talc products Respondent used were manufactured in Georgia, and purchased and used by Respondent in Virginia.

         The jury returned a verdict in favor of Respondent, awarding her both actual and punitive damages.

         Post-Trial Proceedings

         After the return of the jury verdict, the trial court entered judgment on August 3, 2017. In its judgment, the trial court found pursuant to Rule 74.01(b)[1] there was no just reason to delay entry of final judgment on Respondent's claims. Near that time, the United States Supreme Court handed down its opinion in Bristol-Myers Squibb v. Superior Court of Ca., 137 S.Ct. 1773 (2017) (BMS). On September 1, 2017, Appellants filed several after-trial motions, including a motion requesting the trial court enter judgment notwithstanding the verdict and for a new trial. Appellants argued the trial court lacked personal jurisdiction over Appellants as to Respondent's claims, citing BMS. On October 18, 2017, 76 days after the trial court entered judgment, Respondent filed a Motion to Temporarily Vacate Order of Judgment and to Open Discovery on Personal Jurisdiction. Respondent's motion was called and heard on November 13, 2017.

         On November 29, 2017, the trial court entered an order disposing of post-trial motions. This order denied Respondent's Motion to Temporarily Vacate Order of Judgment and to Open Discovery on Personal Jurisdiction as untimely. The trial court also denied Appellants' motions regarding personal jurisdiction. The trial court signaled its intent to reopen the record to allow Respondent to present additional evidence to attempt to establish the trial court's personal jurisdiction over Appellants. That same day, the trial court also issued an order striking and removing the language from the August 3, 2017 judgment finding no just reason for delay and certifying it for appeal.

         Authority to Hear Appeal

         Appellants appeal from the judgment of the trial court entered August 3, 2017, making 15 separate claims of error. However, as a preliminary matter we must address whether this Court has the authority to hear this appeal.

         Appellants claim this case is properly before this Court by virtue of the Rule 74.01(b) certification for appeal by the trial court. Respondent claims there is no final judgment, and thus no appealable decision, because the trial court reconsidered and struck its Rule 74.01(b) certification. Appellants counter by claiming the trial court was without authority to modify its August 3, 2017 judgment in such a way, because more than 30 days had passed since it originally entered judgment, and no party requested the trial court strike its Rule 74.01(b) certification in an authorized and timely ...


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