The Delaware Superior Court judge overseeing more than 200 lawsuits alleging that Johnson & Johnson’s talcum powder products had caused ovarian cancer has dismissed all claims from out-of-state plaintiffs, ruling this week that the court lacked jurisdiction to hear the cases after the U.S. Supreme Court’s 2017 ruling in Bristol-Myers Squibb v. Superior Court of California.
Judge Charles E. Butler on Monday allowed only suits from Delaware residents to proceed in the wake of the high court’s decision last year, which clarified that out-of-state plaintiffs can’t sue companies where the defendants aren’t considered to be “at home,” or haven’t conducted business directly tied to the claimed injury.
In a 31-page opinion, Butler said the nonresident plaintiffs had not established a direct link between Johnson & Johnson’s official actions in Delaware and the specific allegations underlying claims in the suits, and he denied their request to engage in jurisdictional discovery.
The plaintiffs, who hailed from all over the country, claimed to have developed ovarian cancer from using Johnson & Johnson’s talc-based baby powder in their perineal area. According to the lawsuits, the women accused the New Jersey-based company of marketing its products, despite knowing the risk of cancer, and engaging in extensive efforts to hide the dangers of talc use from the public.
In court filings, they pointed to various actions Johnson & Johnson had taken in Delaware, including selling its powder within the state and sending talc samples to DuPont in Wilmington for testing in the 1970s.
However, their cases were jeopardized last summer, when the Supreme Court in Bristol-Myers Squibb continued a line of cases limiting where plaintiffs may bring cases against corporations accused of wrongdoing. Butler last year ordered additional briefing from both sides on how to proceed in the wake of the ruling.
Johnson & Johnson’s attorneys also moved for a protective order to bar the nonresident plaintiffs from discovery to determine if jurisdiction was proper in Delaware.
In his opinion, Butler ruled that none of the plaintiffs’ remaining arguments cited business activities that were specific to their claims in Delaware. Butler said that while Johnson & Johnson’s marketing of talc in Delaware could form the basis for a claim by a Delaware resident, it wasn’t germane to out-of-state plaintiffs.
“The nonresident presumably was subject to sales and marketing in her own jurisdiction, not in Delaware,” he wrote. “Thus, JNJ’s sales and marketing of products in Delaware to resident plaintiffs is not forum-related conduct by JNJ that is related to the specific claims at issue—the claims being asserted by nonresident plaintiffs.”
The argument related to DuPont’s testing of the company’s talc fared no better. Butler found no connection between the analysis and the nonresident claims, adding that the fact that the analysis was done in Delaware was “at best happenstance” and could have occurred in a lab anywhere else.
“It was not even a link in the production chain of talc’s eventual sale to the public. Plaintiffs have not alleged any fact linking DuPont’s testing of talc samples in Delaware to the nonresident plaintiffs’ claims,” he said.
“The bare fact that JNJ contracted with DuPont to have some kind of testing performed on talc samples in a lab in Delaware is not enough to vest Delaware courts with jurisdiction over JNJ as to the nonresident plaintiffs’ claims.”
Attorneys from both sides were not immediately available to comment on Wednesday.
The out-of-state plaintiffs were represented by Raeann Warner of Jacobs & Crumplar; R. Joseph Hrubiec and W. Steven Berman of Napoli Shkolnik in Wilmington; and Hunter J. Shkolnik in the firm’s Melville, New York, office.
The case is captioned In re Talc Product Liability Litigation.