La. Court Overrules Challenges from J&J, Other Defendants to Venue in Asbestos Cosmetic Talc Case

From: HarrisMartin's Asbestos Publication

Date: January 11, 2019

www.harrismartin.com

NEW ORLEANS –– A Louisiana state court has rejected efforts to have an asbestos cosmetic talcum powder case moved to a neighboring parish, overruling all defense venue exceptions and denying motions to strike the plaintiff’s amended petition. The Louisiana Civil District Court for the Parish of Orleans overruled the challenges to jurisdiction in a draft judgment entered Jan. 11 after listening to testimony from both sides, including from the plaintiff herself.

Marilyn Rousseau contended in the underlying complaint that she developed malignant mesothelioma as a result of her, and her mother’s, “regular personal hygienic use, application, dusting, and inhalation of asbestoscontaining/contaminated talcum powder products from 1948 through the late 1970s.” In her complaint, Rousseau alleged that the defendants’ Cashmere Bouquet, Baby Powder, and Shower-toShower talcum powder products were contaminated with asbestos fibers. The case is currently scheduled for a June 2019 trial. In a Sept. 10 memorandum in support of its exceptions to plaintiff’s second supplemental and amended petition, defendants Johnson & Johnson and Johnson & Johnson Consumer Inc. maintained that there was no proper basis for venue in Orleans Parish.

The defendants noted that the court had previously ruled in their favor on the matter, but allowed the plaintiff to amend her petition to properly assert venue. In that amended pleading, the plaintiff maintained that Orleans Parish was proper for a variety of reasons, including that K&B Louisiana Corp. can be served with process in Baton Rouge, and because “events, accident, or injury” occurred within the confines of the Parish. “Specifically,” the pleading said, “over the course of many years, Plaintiff Marilyn Rousseau and her mother, Eve Mabile, used and/or applied and were exposed to asbestos-containing/contaminated cosmetic talcum powder products in Orleans Parish, which products were purchased from various locations in Orleans Parish, including but not limited to locations in Orleans Parish, which were/are owned and/or operated by Defendant K&B Louisiana Corporation.”

However, the defendants argued that second supplemental and amended petition “still fails to assert a basis for venue in Orleans Parish.” In support of its brief, the defendants stated that the plaintiff is not a domiciliary of Orleans Parish and none of the defendants have a registered agent for service of process in Orleans Parish. Further, the defendants said, Rousseau does not bring herself “clearly within” an exception to general venue because the latest filing “still fails to assert wrongful conduct of the Johnson & Johnson defendants in Orleans Parish, or that damages were sustained in Orleans Parish.”

According to the defendant, Rousseau has failed to allege any use of a talc product in Orleans Parish, where she has never lived. While the amended petition includes an affidavit, which states that Rousseau would visit a great-aunt that lived in Orleans Parish from 1960 to 1961, it does not say that she used talc during these visits. “Instead, Plaintiff’s accompanying Amended Petition makes the underwhelming statement that she used and applied talc products while visiting her great-aunt in Orleans Parish –– an apparently fortuitous recovery of memory that Plaintiff did not have at her deposition,” the motion stated.

Imerys Talc America also filed a brief re-urging exceptions in response to the plaintiff’s second supplemental and amended petition, while Colgate-Palmolive filed a declinatory exception of improper venue. When filing the amended petition, the plaintiff also asked the court for a new trial regarding the judgment on the original exception of improper venue.

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