On June 1, 2021, the United States Supreme Court announced it would not accept Johnson & Johnson’s petition for certiorari seeking to overturn a $2.12 billion dollar damages award rendered in Missouri to twenty-two Missouri women who alleged their ovarian cancer was caused from microscopic asbestos fibers in the company’s baby powder and other talc products.
Recently, Johnson & Johnson paid their damages award, including the accrued interest, to the Missouri Tort Victims’ Compensation Fund (“the fund”), a contribution of more than $480 million. Under Missouri state law, once a case reaches final disposition, 50 percent of any punitive damages award, minus attorneys’ fees and expenses, must be deposited into the fund.
The Tort Victims’ Compensation Fund Start
The Missouri legislature established the Tort Victims’ Compensation Fund in 1987 to help compensate tort victims who have been unable to obtain full compensation for their injuries because the party at fault had little or no insurance, or had filed for bankruptcy. Mo. Rev. Stat. § 537.675 (2002). In 2001, the Missouri General Assembly enacted legislation authorizing claims to be made against the fund, giving the Division of Workers’ Compensation the duty to evaluate those claims, and set up criteria for the evaluation of those claims.
Those eligible for compensation from the fund must file an application within two years after the judgment becomes final and all appeals are final. Mo. Rev. Stat. Section § 537.684.2 (2002). If there is no judgment, claims must be filed within time limits prescribed pursuant to Mo. Rev. Stat. § 516.120 (1939), except for cases resulting in death, in which case claims must be filed within time limits prescribed pursuant to Mo. Rev. Stat. § 537.100 (2018).
The claim is then evaluated by the Missouri Division of Workers’ Compensation based upon the law and the information the claimant provides. After a claim is evaluated, the Division of Workers’ Compensation will issue an Administrative Determination either denying compensation from the fund, or awarding compensation in a certain dollar amount, not to exceed $300,000. If the claimant is unhappy with their results, they may appeal the Administrative Determination to an Administrative Law Judge or they may appeal the judge’s decision with the Labor and Industrial Relations Commission. Once the value of the claim has been determined, the claimant is entitled to money from the Fund, but not immediately.
According to the Missouri State Treasurer’s Office, the fund totaled $2.9 million as of May 28, 2021. Actual contributions to the victims’ fund are uncommon because most cases settle prior to final disposition. Between August 28, 2001 and December 31, 2010, over 740 claims were filed against the fund. Over $11.3 million has been paid out to the successful claimants. At this time, Missouri states there are no funds to pay claims filed after January 1, 2011. Even though there is currently insufficient money to pay claims filed after January 1, 2011, claimants are still required to file their claim during the applicable statute of limitations period as provided in Mo. Rev. Stat. Section § 537.684.2 (2002). All claims filed are file-stamped and maintained for future review by the state.
Those who are injured outside of the state of Missouri (and are not Missouri residents) are not eligible to make a claim against the fund for the injury. Furthermore, corporations, partnerships, and commercial entities are not eligible to make claims against the fund.
For more information from Husch Blackwell’s Toxic Tort Monitor, visit:
A Scientific Update: Ovarian Cancer and “Tainted Talc”
Summary of 2019 Talc Verdicts
Missouri Court of Appeals Vacates $110 Million Ovarian Cancer Talc Verdict
Talc Cases May Signal Next Wave of Asbestos Claims