Richland, SC - Federal judges in California and South Carolina dealt a blow last week to Johnson & Johnson’s nascent strategy of removing cosmetic talc cases to federal court in the wake of their talc supplier Imerys filing for bankruptcy in Delaware, remanding multiple cases to state court including one that went to trial on Monday.
J&J in recent weeks filed removals of large swaths of cosmetic talc cases from state courts, arguing that they should be grouped together in Delaware due to insurance indemnification agreements with Imerys. Imerys filed for bankruptcy in February citing the growing costs of defending talc-related lawsuits.
The result would be consolidation of cases in federal district court as opposed to standalone trials taking place in state courts throughout the country, many of which are considered venues more favorable for plaintiffs claims. While the strategy did result in scuttling at least two California trials set for May, federal judges in their remand orders expressed skepticism about the timeliness of J&J’s removals and the impact of the Imerys bankruptcy on remaining claims.
“Imerys is not a party to this claim; as such, Plaintiffs do not seek relief from Imerys or its bankruptcy estate,” wrote Senior United States District Judge Margaret B. Seymour in her remand order. “Additionally, the court notes that this and related cases are close to trial in state court, with the instant action set for trial on May 13, 2019. Recommencing these cases in federal court would result in injustice to plaintiffs.”
The ongoing South Carolina trial is being webcast gavel-to-gavel by Courtroom View Network, which is also currently streaming an ongoing J&J talc trial in Oakland, California that was unaffected by the bankruptcy filing.
J&J argued federal courts should take jurisdiction of these claims because they are related to the pending Imerys bankruptcy, but other federal judges in California determined no “equitable ground” exists to support that argument and found the need to get cases to trial in light of the rapidly failing health of numerous plaintiffs - some of whom may only have weeks or months to live - outweighed any potential harm to J&J.
“Although Imerys filed for bankruptcy on February 13, 2019, Johnson & Johnson waited until the eve of trial to remove the action to this Court,” wrote U.S. District Judge Cormac J. Carney on May 3. “By all counts, they were ready to go to trial. If this action is transferred to Delaware, all of this effort will have to be duplicated. Trial will be delayed by months or even years.”
While the bankruptcy court in Delaware could still ultimately take jurisdiction of pending cosmetic talc claims related to the Imerys filing, the rulings indicate J&J won’t be able to immediately halt the numerous trials set to begin in coming weeks and months involving asbestos allegedly present in its cosmetic talc products like Johnson’s Baby Powder.
A consolidated talc trial involving four plaintiffs was set to begin June 3 in Johnson & Johnson’s home state of New Jersey, but those cases were similarly removed to federal court. A remand hearing is set for May 14, leaving open the possibility of the June trial still going forward.
The removals will also potentially impact trial dates in pending cosmetic talc cases against Colgate-Palmolive, which faces talc suits throughout the country but far fewer than J&J. They are a defendant in the ongoing trial in California, marking the first time a jury considers claims against both Colgate and J&J in the same trial.
The South Carolina case set for trial on May 13 is captioned Beth-Anee F. Johnson and John W. Greenley, Jr. v. Johnson & Johnson, et al., case number 2018CP4001781, in the Richland County Court of Common Pleas. The plaintiffs in that case are represented by the South Carolina-based firm Motley Rice LLC.
The ongoing California trial is captioned Patricia Schmitz v. Johnson & Johnson, case number RG18923615, in Alameda County Superior Court. Schmitz is represented by the California-based firm Kazan McClain Satterley and Greenwood LLP.
Live and on-demand video of both trials will be available via CVN, in addition to numerous other talc and asbestos trials, including both mesothelioma and ovarian cancer cases, in CVN’s one-of-a-kind online video archive.
E-mail David Siegel at dsiegel@cvn.com
