J&J Loses Remand Fight In NJ Talc MDL

By: Jeannie O'Sullivan

Law360, New York (October 13, 2017, 6:49 PM EDT) -- A New Jersey federal judge ruled Thursday that a Louisiana woman’s lawsuit alleging Johnson & Johnson talcum powder products caused her ovarian cancer belongs in the southern state because there was no proof she fraudulently added a Louisiana-based drugstore to her complaint just to keep it in that jurisdiction.

In remanding Bridget McBride’s complaint to the Civil District Court for the Parish of Orleans in Louisiana, U.S. District Judge Freda L. Wolfson rejected New Jersey-based J&J’s opposition over McBride’s inclusion of Rite Aid operator K&B Louisiana Corp. as a defendant in the suit. The pharmaceutical giant had had the case removed to New Jersey federal court, where the J&J talc cases were consolidated in multidistrict litigation.

Instead, Judge Wolfson found McBride’s suit showed “actual intention” to pursue claims against K&B as a manufacturer of the J&J talcum products or under professional vendor liability.

“Therefore, without inquiring any further into the legal merits, which would be inappropriate in a preliminary jurisdictional determination, there is some reasonable basis in fact and some colorable legal ground supporting a claim against K&B,” Judge Wolfson’s decision said.

Judge Wolfson found “unavailing” J&J’s arguments that there was no reasonable possibility that K&B could be held liable as a manufacturer under the Louisiana Products Liability Act, nor as a professional vendor under Louisiana tort law. The drugmaker also asserted that the “dearth of allegations” connecting McBride’s injury to any purported conduct by K&B further demonstrated fraudulent joinder.

Addressing the LPLA theory, Judge Wolfson noted that McBride’s remand motion clarified that K&B repackaged and/or rebranded the J&J talcum products, and sold them as its own, which satisfies the LPLA definition of “manufacturer.”

The judge likewise disagreed with J&J’s assertion that K&B couldn’t be held liable as a professional vendor because, the pharmaceutical company reasoned, the LPLA abrogated the professional vendor theory of liability since the passage of the law in September 1988.

Yet the causes of action brought by McBride, who used the talcum powder from 1979 to 2016, which accrued prior to September 1988 met the standards supporting a professional vendor theory claim, according to the opinion. K&B was a “sprawling seller” — meaning its size, volume and merchandising practices bring it within the class of "professional vendors presumed to know the defects of their products" — and K&B “held the product out to the public as its own,” the opinion said. The remand motion sufficiently alleged both, according to Judge Wolfson.

“Therefore, this court finds that plaintiff’s claims accruing before the LPLA’s enactment have some reasonable basis in fact or some colorable ground,” the opinion said.

The judge then shot down J&J’s contention that McBride’s complaint lacked factual allegations linking K&B to her injuries, noting that the lawsuit accused K&B of repackaging the talcum powder products as its own or was a professional vendor of them.

“Although her language may not paint the clearest picture,” McBride showed that a sufficient causal connection exists between her injuries and K&B, the opinion said.

McBride filed her lawsuit, which asserts negligence and strict product liability claims, in September 2016 in Louisiana state court. The suit alleges her cancer diagnosis stemmed from her 37-year use of J&J’s Baby Powder and Shower to Shower products.

The J&J talc suits were centralized by the Judicial Panel on Multidistrict Litigation in October 2016. The common questions among the cases are whether the talc-based powders cause ovarian or uterine cancer, whether the company knew or should have known about that correlation, and whether it did enough to warn users.

McBride attorney, Lindsey Cheek of The Cheek Law Firm, hailed Thursday's ruling.

"Despite vigorous opposition from J&J, including a litany of misplaced and meritless arguments regarding the plaintiff’s right to pursue her claims in her home state of Louisiana, the judge ultimately found J&J’s assertions and citations to be unavailing and unpersuasive," Cheek told Law360 on Friday.

Representatives for the defendants didn't immediately respond to requests for comment.

McBride is represented by Lindsey A. Cheek of The Cheek Law Firm, Damon R. Pourciau of the Ardoin Law Firm, and Scott Michael Galante of Galante & Bivalacqua LLC.

The defendants are represented by Kim E. Moore, Meera Unnithan Sossamon and David Michael Melancon of Irwin Fritchie Urquhart & Moore LLC, Gene M. Williams, Scott A. James and Kathleen Frazier of Shook Hardy & Bacon LLP and Susan M. Sharko of Drinker Biddle & Reath LLP.

The case is Bridget McBride v. Johnson & Johnson et al., case no. 3:16-cv-07891, in U.S. District Court for the District of New Jersey.

--Additional reporting by Rachel Graf. Editing by Bruce Goldman


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