J&J Asks Federal Court to Assume Baby Powder Lawsuits from State Courts

By , and | April 23, 2019

Johnson & Johnson wants a federal judge to take over more than 2,000 baby-powder lawsuits it faces instead of allowing the cases to be heard by state-court juries, where the company has a mixed record.

The world’s largest maker of health-care products seeks to invoke legal protections available to J&J’s bankrupt talc supplier Imerys Talc America Inc. to collect suits accusing its baby powder of causing asbestos-related cancers before a single judge in Delaware. Imerys sought Chapter 11 protection in bankruptcy court there in February after being swamped by talc suits.

Because it hasn’t filed for bankruptcy protection, J&J would normally not be entitled to demand state-court litigation be halted or transferred to a federal court. But a special bankruptcy law provision allows Imerys creditors with significant financial ties to the talc miner to make the request to promote “expeditious resolution of claims,” according to Thursday’s filing.

“Because the claims raise common questions of fact, law, and science, the current nationwide” round of pre-trial information exchanges “is duplicative, unpredictable, and wasteful,” J&J said in court papers.

J&J is facing more than 14,000 claims its talc products caused ovarian cancer or mesothelioma, a rare cancer linked to asbestos exposure. The company denies its products ever contained the carcinogen and argues talc on its own doesn’t cause the life-threatening illnesses.

Mixed Record

More than 11,000 of those suits filed in federal courts around the U.S. already have been consolidated before a federal judge in New Jersey for pre-trial information exchanges. J&J’s request aims to set up a similar — but smaller — concentration of the state court cases in Delaware.

J&J faces more than a dozen trials, primarily in California, over the next five months, according to data compiled by Bloomberg. The company has a mixed record when juries have weighed the talc cancer cases. J&J prevailed in a New Jersey trial last month, two weeks after a jury in Oakland, California, hit it with $29 million in damages.

“I think the chances a judge in Delaware is going to add another 2,400 cases to that court’s docket are pretty remote,” said Chuck Tatelbaum, a Florida-based lawyer who’s been involved in mass tort cases that wound up in bankruptcy court. “This move is a bit of a stretch,” said Tatelbaum, who isn’t involved in the J&J litigation.

J&J’s lawyers noted in their filing they aren’t seeking to bring to Delaware cases that have already gone to trial or are in the jury-selection process. They also aren’t seeking to include any verdicts on appeal as part of the requested transfer.

$4.7 Billion Verdict

That would include a nearly $4.7 billion verdict against J&J last year in state court in Missouri on behalf of 22 women who blamed their cancers on baby powder use and a $117 million verdict on behalf of a male user of the talcum powder in state court in New Jersey.

Because Imerys was a co-defendant in most of the talc suits lodged against J&J, the health-care company is a significant creditor in the talc suppliers’ bankruptcy case, according to the company’s filing. The companies have disagreements about $2 billion in insurance coverage and indemnity agreements covering talc litigation, J&J noted.

Sweeping the remaining talc cases to Delaware would help U.S. Bankruptcy Judge Laurie Selber Silverstein more efficiently decide how to cover Imerys’s talc liability and relieve the litigation burden on state courts across the U.S., J&J said.

The claims are “overwhelming” state courts nationwide, “to the detriment” of Imerys, its creditors and talc plaintiffs, J&J’s lawyer said. A Delaware consolidation would “further judicial economy and the prompt, fair and complete resolution” of all the claims.

Nate Finch, a South Carolina-based lawyer for talc plaintiffs, dismissed J&J’s filing as another attempt to avoid having state-court juries “look at their internal documents and hear other evidence” of their effort to hide baby powder’s health risks.

Lawyers for women suing J&J over its familiar powder have unearthed documents they say show the company knew in 1970 that asbestos had been found in talc used in the product and could cause cancer in users.

The case is In Re Imerys Talc America Inc., 19-00103, U.S. District Court; the bankruptcy case is 19-10289, U.S. Bankruptcy Court. Both cases are in the District of Delaware (Wilmington).

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