Talc MDL Judge Remands 6 Cases back to Louisiana State Court for Lack of Diversity

TRENTON, N.J. — The New Jersey federal judge overseeing the national multidistrict litigation docket for talcum powder claims has remanded six cases to Louisiana state court, ruling that the plaintiffs have asserted colorable negligence and product liability claims against a non-diverse defendant.

In June 26 orders, Chief Judge Freda Wolfson of the U.S. District Court referred to an earlier order in a case (McBride v. Johnson & Johnson) involving the same defendants in which she found that the plaintiff's claims against K&B Louisiana Corp. are colorable and therefore diversity jurisdiction is lacking.

“Plaintiffs have alleged facts that, as in McBride, support a colorable claim that K&B was a manufacturer under the Louisiana Products Liability Act, regardless of whether these allegations would be borne out to be inaccurate,” the judge held. “Plaintiffs’ allegations are, therefore, sufficient for the Court to find a colorable claim against K&B under the LPLA.”

Plaintiffs in the six remanded cases alleged negligence and product liability claims against the manufacturers, suppliers, and distributors of talcum powder products to which they were exposed, including Johnson & Johnson, Johnson & Johnson Consumer Inc., and K&B Louisiana Corp DBA RiteAid.

K&B, which allegedly manufactured, sold and distributed the products at issue, is domiciled in and has its principal place of business in the Parish of East Baton Rouge, Louisiana.

Almost two years ago, and almost immediately after Plaintiffs filed their respective cases in Louisiana state court, J&J removed the cases to federal court, and then transferred them to the MDL in New Jersey, arguing that non-diverse defendant K&B was improperly joined and therefore complete diversity jurisdiction exists.

Plaintiffs moved to remand, citing Judge Wolfson’s Oct. 12, 2017, order in McBride v. Johnson & Johnson. In McBride, Judge Wolfson determined that federal/MDL jurisdiction did not exist due to the allegations made by the Plaintiff(s) against (Louisiana) defendant K&B Louisiana Corp.

Specifically, Judge Wolfson found in McBride that K&B meets the Louisiana Product Liability Act’s definition of a “manufacturer”; the sufficiently pled claims in her complaint to paint a “colorable claim” against K&B as a manufacturer under the LPLA; the plaintiff’s claims were sufficient to support a reasonable claim against K&B under a theory of professional vendor liability; and the plaintiff alleged a sufficient causal connection between her injuries and the products she bought from K&B; and that the plaintiff’s allegations show an actual intention to proceed against K&B.

In their motions to remand, the six Louisiana Plaintiffs in the instant cases argued that the facts pled, and allegations made in McBride are almost identical to those advanced in their (Louisiana) cases.

“Counsel for these six Louisiana plaintiffs is the same as plaintiff’s counsel in McBride,” they noted. “Additionally, the plaintiff in McBride pled identical Louisiana negligence and product liability claims against K&B in her original Louisiana state court petition, as those that have been pled in these six cases.”

Plaintiffs further argued that their cases should be remanded because the allegations made against K&B and the J&J defendants are identical to those advanced in McBride; like McBride, plaintiffs are each residents of Louisiana; and each plaintiff was exposed to talcum powder products manufactured, promoted, and/or sold by the defendants in Louisiana, including talcum powder products sold and/or manufactured by K&B.

In their opposition, J&J argued that the strict liability and negligence claims have no reasonable possibility of success against K&B under Louisiana law because they do not allege that K&B actually manufactured the talc products at issue.

“The Court’s ruling in McBride turned on the fact that J&J did ‘not address or otherwise dispute that K&B held itself out as a manufacturer of the J&J talcum products and that K&B allegedly repackaged the J&J talcum products it sold,’ — a theory of liability cognizable under Louisiana law,” J&J contended. “Here, by contrast, the record evidence not only addresses — but conclusively refutes — plaintiffs’ conclusory allegations on this score,” and as such, J&J asserted that McBride does not govern, and there is no reasonable basis for finding that K&B qualifies as a manufacturer under Louisiana law. Moreover, plaintiffs do not allege that K&B was aware or should have been aware that the talc products are defective, J&J argued, and the evidence in the record makes clear that K&B did not have knowledge of the purported defect. Finally, plaintiffs’ petitions fail to connect K&B to the talc products that allegedly caused plaintiffs’ ovarian cancer, J&J maintained.

In opposing Plaintiffs motion to remand, J&J further argued that “The Petitions do not even directly allege that plaintiffs purchased the specific Johnson’s Baby Powder or Shower to Shower that they allege caused their injuries from K&B — much less that they exclusively or even mostly purchased the products from that defendant — a crucial omission given that Louisiana rejects the theory that ‘every exposure’ to an agent can cause a disease.”

Judge Wolfson, however, noted plaintiffs allege that K&B was “engaged in the business of using, manufacturing or facilitating the manufacture of said PRODUCTS, or representing themselves as manufacturers of said PRODUCTS, or were professional vendors of said PRODUCTS.” Plaintiffs further allege that they purchased J&J talcum powder from K&B, which they “used and perineally applied,” the judge added. “In that connection, Plaintiffs allege that K&B’s conduct (i.e. product defects, failure to warn, failure to recall) directly and proximately caused harm, namely ovarian cancer and resulting damages. Those allegations are sufficient to defeat removal for diversity purposes under a fraudulent joinder analysis,” Judge Wolfson concluded.

All six Louisiana Plaintiffs are represented by The Cheek Law Firm LLC in New Orleans, Louisiana.


Date: June 28, 2019 www.harrismartin.com
From: HarrisMartin's Talcum Powder Litigation Report Publication

Peck v. Johnson & Johnson, et al., No. 3:17-12665; Comardelle v. Johnson & Johnson, et al., No. 3:17-13365; Mouton v. Johnson & Johnson, et al., No. 3:17-12674; Lightfoot v. Johnson & Johnson et al., No. 3:17-13361; Aikens v. Johnson & Johnson, et al., No. 3:17-12675; and Sansone v. Johnson & Johnson et al., No. 3:17-12673.

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