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NYC court boots Texas woman's talc/cancer lawsuit against J&J; Using baby powder on a plane not strong enough connection

State Court

By Karen Kidd | Jul 17, 2019

Manhattan Supreme Court

NEW YORK (Legal Newsline) – The New York Supreme Court will not be hearing a Texas woman's case against New Jersey-based Johnson & Johnson that claims talcum powder products caused her cancer, according to an order handed down July 10.

Supreme Court Justice Manuel J. Mendez said in his order that the court, a specialized asbestos docket called NYCAL, cannot exercise jurisdiction over the lawsuit by plaintiffs Linda English and her spouse Patti Raso.

"In other words, the case does not present the needed connection between the forum and the specific claims at issue because the products from which Ms. English alleges exposure were not purchased in New York and her resultant illness manifested itself outside the state," Mendez said in his order. 

"Given that this court is unable to exercise general or specific personal jurisdiction over the Johnson & Johnson entities, this case may be properly disposed of without addressing the issue of forum non conveniens."

Mendez issued his order in response to Johnson & Johnson's motion to dismiss the plaintiffs' second amended complaint.

The order did not cover another defendant in the case, Avon Products Inc., which is based in London.

English, a Delta Air Lines flight attendant from 1966 to 1999, previously testified that she sometimes had layovers in New York when she worked domestic flights and occasionally used talcum powder products during those layovers, according to Mendez's order.

"Ms. English testified that she never purchased any talcum powder product in New York State," Mendez said in his order. "Rather, she brought Johnson's baby powder with her from Texas during her years as a flight attendant."

English's mesothelioma diagnosis and her subsequent treatment all occurred outside of New York state, according to the order.

Johnson & Johnson maintained the court lacked personal jurisdiction because of English's "transient use" of the company's baby powder, which she didn't buy in New York, did not provide specific jurisdiction over the company, the order said.

"Defendants further argue that Johnson & Johnson's unrelated activities within New York cannot give rise to jurisdiction over plaintiff's personal injury claims," the order said. "Lastly, Johnson & Johnson claims that it is entitled, in the alternative, to dismissal under New York's doctrine of forum non conveniens."

Mendez's order is the latest action out of New York and its controversial asbestos court. In May, an asbestos court jury handed down a $25 million verdict against Johnson & Johnson in a talcum powder lawsuit. The same jury later that month awarded $300 million in punitive damages to the plaintiff in that case, Donna Olson, who blames Johnson & Johnson's baby power and Show to Shower products caused her cancer.

The jury handed down those awards despite claims by Johnson & Johnson that a serial expert witness for the plaintiff lied during his testimony in the case.

A juror in the same case also complained to the presiding judge, Gerald Lebovits, that deliberations were hijacked by other jurors, leading to predictions that the huge awards to the plaintiff would not withstand appellate review.

Last month, a New York state appeals court tossed out a $7 million jury verdict in a talc case against Whittaker Clark & Daniels, saying experts for the plaintiff in that case, DiScala v. Charles B. Chrystal Co., didn't show how cosmetic talc powder caused the plaintiff's cancer.

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