Johnson & Johnson baby powder Johnson & Johnson baby powder. Photo: Shutterstock

Lawyers for plaintiffs who have linked talcum powder to ovarian cancer are beginning to push back against the mass removal of their cases from state to federal court in the wake of the bankruptcy filing of a major talc supplier.

The filing earlier this year for bankruptcy protection of Imerys, the talc supplier to Johnson & Johnson, led the consumer products manufacturer to remove to federal court thousands of talc cases—many of which had been gearing up for trial.

The jurisdictional wrangling began last month after J&J remanded 2,400 cases to federal courts across the country, citing the Chapter 11 bankruptcy that Imerys Talc America filed in February. Imerys is J&J’s exclusive supplier of talc.

As part of its removal efforts, J&J, which has been slammed with verdicts as high as $4.7 billion over its talc products, has contended that all civil cases involving Imerys needed to be handled by the U.S. District Court for the District of Delaware, which is where Imerys made its bankruptcy filing.

Plaintiffs, however, are beginning to fight the removals, contending the moves were improper and the district courts lack jurisdiction.

“It would be inconsistent with the principles of comity for the federal court to exercise jurisdiction over this matter while there is simply no pressing federal interest that would be furthered by severing this case and trying the plaintiff’s claims against J&J in federal court,” Pittsburgh attorney Holly Deihl of Kapusta Deihl & Schweers said in a May 9 filing in Mendicino v. Johnson & Johnson.

That case was filed by plaintiff Lori Mendicino in the Allegheny County Court of Common Pleas, but it was removed to the U.S. District Court for the Western District of Pennsylvania in mid-April.

Nancy Winkler of Eisenberg Rothweiler Winkler Eisenberg & Jeck, who is representing several plaintiffs who initially filed their claims in state court, said plaintiffs in every removed case are set to fight to have their suits remanded.

One of the cases Winkler is handling is Kleiner v. Rite Aid. Following a separate jurisdictional ruling in that case—one that focused on whether Pennsylvania’s business registration law constituted consent to general personal jurisdiction—Kleiner was cleared to be Philadelphia’s first trial over the alleged link between talc and ovarian cancer, but the case was removed in April, for the second time, to federal court in Pennsylvania.

Winkler filed a motion for remand Monday on behalf of plaintiff Ellen Kleiner, and said she is still preparing to try the case in Philadelphia state court in early 2020.

“It’s very unfortunate because these women really need to be able to get their cases tried and they have been waiting, many of them, a very long time,” Winkler said. “We hope that the court expeditiously remands our case so we can continue to gear up for trial.”

J&J did not return a request for comment.

J&J had also sought expeditious action by the court, but those requests were rejected last week.

In its efforts to remove the cases to federal courts, J&J pointed to the federal bankruptcy statute, which, J&J said, gives the Delaware federal court the authority to determine the proper venue for civil claims “related to” Imerys’ bankruptcy. Because its contracts with Imerys contained indemnifications and the supplier also sought to claim J&J’s insurance for expenses incurred in defending the talc cases, the entire talc litigation, J&J contended, should be considered “related to” bankruptcy, since Imerys’ pool of available assets could also be affected.

When the company removed the cases, raising this argument to federal courts across the country, it also filed in Delaware district court a motion seeking immediate “ex parte” relief and an emergency motion requesting provisional transfer to the First State.

Although J&J had contended that swift action by the Delaware court was needed to protect jurisdiction over the state claims and prevent conflicting decisions regarding remands to other courts, U.S. District Judge Maryellen Noreika of the District of Delaware said in an 11-page order May 9 that there was no reason to expedite the process.

“J&J is responsible for the multiplicity and timing of removal and the ensuing remand motions. Indeed, having chosen to remove the cases, J&J set in motion requests for remand to be filed within the time period prescribed by the state,” Noreika said in denying the motions. “J&J’s desire to centralize its own state law litigation does not justify the finding of an emergency requiring immediate, ex parte entry of provisional relief.”


READ THE DELAWARE COURT’S OPINION: