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Monday, July 22, 2019

Del. judge throws out talc suits from out-of-state plaintiffs against J&J; SCOTUS decision on jurisdiction was a factor


By Sandra Lane | Sep 21, 2018

WILMINGTON, Del. (Legal Newsline) – A Delaware judge has dismissed some claims filed by female users of Johnson & Johnson’s talc powder products who claimed that using this product on their perineal area caused ovarian cancer.

“Johnson & Johnson’s motion to dismiss the non-resident plaintiff’s claim for lack of personal jurisdiction is granted. The non-resident plaintiff’s claims against Johnson & Johnson are dismissed,” the Sept. 10 ruling written by Judge Charles E. Butler of the Delaware Superior Court ruled. “Johnson & Johnson’s motion for a protective order to quash jurisdictional discovery requests is also granted.”

The judge said that the court could not guarantee jurisdictional discovery to the plaintiffs because they had not provided minimal evidence to prove that they deserved jurisdictional discovery. Butler said they failed to reveal any evidence to prove that Delaware had some kind of significant relationship to the claims of non-resident plaintiffs. Because of this, Butler said that he was granting a protective order to Johnson & Johnson.  

This court action and others came as a response to the health issues of numerous women who had used Johnson & Johnson’s Baby Powder on the perineal areas of their body and developed ovarian cancer. As mentioned in the court’s opinion, in Missouri, a jury had awarded $72 million to a woman who made similar claims. However, the appeals court reversed the trial court’s jurisdiction ruling and erased the verdict.

The Delaware court’s opinion also stated that more than 200 similar lawsuits had been filed in Delaware on behalf of plaintiffs who lived throughout the United States. All of the plaintiffs alleged that Johnson & Johnson continued to manufacture the talc powders in spite of the fact that studies showed that the talc had produced ovarian cancer when used on the perineum.

Johnson & Johnson never argued any of these lawsuits, saying instead that the court should dismiss the claims of non-residents because the court had no jurisdiction. In each of these cases, Johnson & Johnson filed a motion for a protective order to be exempted from the discovery demand. The company maintained that discovery would not provide facts to support jurisdiction in Delaware. The court granted Johnson & Johnson’s motions to dismiss the out-of-state plaintiffs' claims and also to be exempted from providing jurisdictional discovery.

In support of his approval of defendant Johnson & Johnson’s motions, Butler said as quoted in his discussion of the case, “A plaintiff is not entitled to jurisdictional discovery where the assertion of personal jurisdiction lacks the minimal level of plausibility needed to permit discovery to go forward.”

The judge's decision was guided by a recent 8-1 decision of the U.S. Supreme Court declaring that large corporations cannot be sued by mulitple plaintiffs in whatever jurisdictions they chose to enter a complaint.  In Bristol-Myers v. Superior Court of California, San Francisco County, the court said that there must be jurisdictional boundaries. Plaintiffs who live in the same state should join together and file in that particular jurisdiction.

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