NEW ORLEANS — Technical deficiencies in a complaint are not evidence of improper joinder, and a woman will need discovery to flesh out her claims against a retailer she claims sold asbestos-tainted talc, a federal judge in Louisiana held in finding joinder proper and remanding the case on May 17 (Marilyn Rousseau v. Johnson & Johnson, et al., No. 18- 2922, E.D. La., 2018 U.S. Dist. LEXIS 83230).
Marilyn Rousseau was diagnosed with malignant mesothelioma. She eventually sued numerous companies, claiming that her disease arose as a result of exposure to asbestos in cosmetic talc products her mother used between 1948 and the 1970s. Rousseau filed suit in the Orleans Parish District Court. Defendant Johnson & Johnson and Johnson & Johnson Consumer Inc. (collectively, J&J) removed the case to the U.S. District Court for the Eastern District of Louisiana. At the heart of J&J's diversity jurisdiction removal under 28 U.S.C. § 1332(a)(1) was the company's claim that Rousseau improperly joined K&B Louisiana Corp., d/b/a Rite Aid Corp., as a defendant.
Rousseau moved for remand.
Judge Jay C. Zainey said Rousseau cannot allege that K&B knew that the product was defective at the time of sale — the only way to hold a nonmanufacturer seller liable under Louisiana law. A professional vendor, on the other hand, takes on the same liability as a manufacturer. But J&J argues that Rousseau cannot show that K&B was a professional vendor, Judge Zainey said.
And while the allegations “were not precisely and carefully drafted to make unequivocally clear that the pertinent allegations pertain to all defendants,” Judge Zainey said he would not rely on technical deficiencies in finding improper joinder. Judge Zainey noted that the events at issue occurred between 40 and 70 years ago. Rousseau will need discovery to flesh out her claims, Judge Zainey said.
Lindsey A. Cheek of The Cheek Law Firm represents Rousseau. Claire Adams Noonan of Irwin, Fritchie, Urquhart & Moore represents J&J. All are in New Orleans.