Products Liability Law Reporter

A federal district court concluded that it lacked subject matter jurisdiction over a consumer’s talcum powder asbestos claims against Johnson & Johnson and Johnson & Johnson Consumer Inc. (J&J).

Here, David Cochran sued J&J, alleging he developed malignant mesothelioma from exposure to asbestos contained in J&J’s baby powder. The defendant filed a notice of removal, arguing that the plaintiff’s claims were removable under federal law in that they were related to the bankruptcy case of Imerys Talc America, Inc., which supplied talc for J&J’s baby powder. The plaintiff then filed a motion to remand back to the Harris County, Texas, trial court.

The district court granted the plaintiff’s motion to remand. The court rejected J&J’s argument that the plaintiff’s claims are related to the Imerys bankruptcy case because Imerys is contractually obligated to indemnify J&J for its liability to the plaintiff. The court found that the plaintiff has alleged that J&J is liable for its own alleged acts and omissions and that J&J’s agreements with Imerys impose no express contractual indemnification on Imerys for liability and defense costs arising out of the types of claims the plaintiff asserted. The court also rejected the defense argument that jurisdiction exists based on its shared insurance with Imerys. Imerys has the right to seek proceeds from J&J’s insurer, but this does not demonstrate shared insurance for purposes of establishing related-to jurisdiction, the court said.

Finally, the court concluded that J&J has failed to demonstrate that it has a unity of identity with Imerys. The court reasoned that because neither Imerys nor its bankruptcy estate are defendants in the plaintiff’s lawsuit, it cannot be said that J&J and Imerys share the same interest for the purpose of establishing jurisdiction under federal law. Consequently, the court found, absent subject matter jurisdiction, remand of the plaintiff’s claims to the state trial court is required.

Citation: Cochran v. Johnson & Johnson, 2019 WL 3202312 (S.D. Tex. Jul 16, 2019).

Plaintiff counsel: Heather Davis, Milwaukee.

Comment: In Jackson v. Johnson & Johnson, 2019 WL 2537837 (E.D. La. June 20, 2019), Cathy Jackson used J&J baby powder and Shower to Shower products from 1968 to 2017, at which time she was diagnosed as having ovarian cancer. She sued J&J and Johnson & Johnson Consumer Cos., Inc., and Imerys Talc America, Inc., alleging the defendants had failed to warn about the dangers associated with using talcum powder. J&J removed the plaintiff’s state court claims against it, arguing the Imerys bankruptcy proceedings gave rise to related-to jurisdiction. The plaintiff moved for an emergency remand. Granting the motion, the court noted that to determine whether a case is related to a bankruptcy proceeding, a court must decide whether the outcome of the civil proceeding could have any effect on the estate being administered in bankruptcy. The court found that the plaintiff’s claims against J&J could affect the Imerys bankruptcy estate. Nevertheless, the court said, equitable principles—including the state law nature of the plaintiff’s talc claims, the potential prejudice to the plaintiff, and notions of judicial economy—weigh in favor of remand here and are not sufficiently outweighed by the connection of the claims to the bankruptcy proceedings. AAJ member Lindsey Cheek, AAJ member Brian King, Jason Giles, and Christopher Fransen, all of New Orleans, La.; and AAJ members Richard Arsenault and Wesley Gralapp, both of Alexandria, La., represented the plaintiff.