Johnson & Johnson’s baby powder. (Photo: Mike Mozart/Flickr)
Armed with last month’s U.S. Supreme Court decision in Bristol-Myers Squibb v. Superior Court, Johnson & Johnson has moved to dismiss the claims of 1,365 women with talcum powder suits in Missouri state court in part because their lawyers have engaged in “blatant forum shopping on a grand scale.”
The move seemed bound to happen, particularly given that on June 19, the same day that the Supreme Court issued its Bristol-Myers decision, Johnson & Johnson successfully sought a mistrial of a case in Missouri state court alleging that three women died from ovarian cancer after prolonged use of its baby powder products.
On June 29, Johnson & Johnson removed that case, and 19 other suits pending in Missouri, where juries have rendered more than $300 million in verdicts. Yet 95 percent of the women who’ve sued in Missouri haven’t lived in Missouri, bought or used talcum powder in Missouri or gotten ovarian cancer while in Missouri.
” Bristol-Myers makes clear that personal jurisdiction over these claims is lacking,” wrote Johnson & Johnson’s attorneys in a Tuesday court filing opposing plaintiffs’ emergency motions this month to remand the cases to Missouri. “The circumstantial evidence in this case and the litany of other Missouri cases involving a smattering of Missouri plaintiffs joined (in many cases) with dozens of out-of-state plaintiffs for whom personal jurisdiction is clearly lacking points to one unmistakable conclusion: plaintiffs are engaging in blatant forum shopping on a grand scale.”
Plaintiffs lawyers, in their remand motions, called Johnson & Johnson’s moves “frivolous” and “not worth the paper they are written on.” They also insisted they have uncovered evidence that could establish personal jurisdiction in Missouri under Bristol-Myers. In fact, they were about to depose executives this month to obtain information about Johnson & Johnson’s connection to a manufacturer and packager of pharmaceutical products that has a plant in Union, Missouri.
“Defendants wrongfully removed this case in order to unilaterally stop this discovery from being conducted,” wrote Wylie Blair of Onder, Shelton, O’Leary & Peterson in St. Louis in a July 6 motion to expedite remand of the case.
The developments come as Johnson & Johnson is set to go to trial next week in the first case in California. It also comes as Johnson & Johnson has appealed the first verdict against it over talcum powder: A $72 million award to the widow of an Alabama woman. In supplemental briefs filed this month before the Missouri Court of Appeals, both sides agreed that Bristol-Myers required reversal of the judgment. But Johnson & Johnson wants the case dismissed, while plaintiffs attorneys hope to pursue additional discovery on remand to establish personal jurisdiction.
In Bristol-Myers, the Supreme Court held that plaintiffs had failed to establish specific jurisdiction because there wasn’t enough of a link between their claims and California, where they brought their lawsuit. The ruling tightened the rules on where corporate defendants can be sued.
The immediate mistrial of the talc case in Missouri triggered a new window in which Johnson & Johnson could remove the Missouri cases, wrote Johnson & Johnson lawyers Beth Bauer, a partner at HeplerBroom in Edwardsville, Illinois, and Mark Hegarty, a partner at Shook, Hardy & Bacon in Kansas City, Missouri. Plaintiffs attorneys also have engaged in bad faith, they wrote.
“The requisite bad faith is apparent in the continued filing by the same plaintiffs’ counsel of sprawling lawsuits involving out-of-state plaintiffs in Missouri state court, in an attempt to concentrate the overwhelming majority of talcum powder lawsuits in a single, plaintiff-friendly state court based on a theory of personal jurisdiction that lacked merit from the outset and has now been expressly rejected by the Supreme Court in Bristol-Myers,” they wrote.
Such “forum shopping effort” is designed to avoid having their cases transferred to New Jersey, where U.S. District Judge Freda Wolfson is overseeing about 200 lawsuits over talcum powder in a multidistrict litigation proceeding, Johnson & Johnson’s lawyers wrote in their removal notice.
Plaintiffs lawyer Blair, in his remand motion, called the removals an “underhanded, last-ditch effort to have this case subsumed within the MDL before remand can be ruled upon.”
“Defendants’ ultimate trick bag is to get the case transferred to the MDL before it is again remanded, thereby creating irreparable, prejudicial delay,” he added in motion to expedite.
The mistrial, he wrote, didn’t give Johnson & Johnson carte blanche to toss the Missouri cases but allowed the plaintiffs to conduct further discovery to establish personal jurisdiction under Bristol-Myers. And that’s exactly what plaintiffs were doing when Johnson & Johnson removed the cases, he wrote.
Johnson & Johnson’s lawyers called the latest discovery a “belated attempt to manufacture personal jurisdiction.” They also cited a June 27 decision in a separate case over blood thinner Pradaxa in which U.S. District Judge Catherine Perry of the Eastern District of Missouri dismissed 86 of the 94 plaintiffs because they didn’t live in Missouri.
“Just as in Bristol-Myers Squibb, defendants here market and sell their pharmaceutical drug in the forum state, but the nonresident plaintiffs did not ingest the drug in the forum, nor do they claim to have suffered resulting injuries in the forum,” Perry wrote.