J&J’s Talc Defense Gets Harder After Cases Kept in State Courts

By Jef Feeley and Margaret Cronin Fisk | May 10, 2019

Johnson & Johnson failed to get 2,400 state-court cancer lawsuits tied to its baby powder immediately transferred to a federal court in Delaware, where it could forge a single defense strategy.

U.S. District Judge Maryellen Noreika in Wilmington dismissed J&J’s request on Thursday, noting that the world’s largest maker of health care products is partly responsible for the boomlet of litigation over its transfer strategy that it now characterizes as a crisis.

J&J wants to invoke the legal rights of its bankrupt talc supplier, Imerys Talc America Inc., to gather the baby powder suits before Noreika in hopes of quicker trials and resolutions of claims that the talc-based product causes cancer. In February, the unit of Imerys SA sought Chapter 11 protection to deal with a wave of identical suits.

“J&J cannot establish an emergency” tied to Imerys’s bankruptcy-reorganization effort, Noreika said. “J&J’s desire to centralize its own state-law litigation does not justify the finding of an emergency” requiring immediate transfer, she added. She must still decide whether to accept the cases on a permanent basis.

In more than 90 cases so far, judges in California and South Carolina have declined to send the talc cases to Noreika because they say some plaintiffs are too close to dying to delay the litigation, according to court filings.

In her 11-page ruling, Noreika also pointed out that J&J hasn’t joined Imerys in seeking Chapter 11 protection to deal with the talc suits and has not “established financial distress” tied to the cases. The judge noted that Imerys hasn’t requested the transfer of the cases.

Kim Montagnino, a J&J spokeswoman, declined to comment on Noreika’s ruling.

J&J is facing more than 14,000 claims that 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 doesn’t cause the life-threatening illnesses.

More than 11,000 of those suits are filed in federal courts across the U.S. and already have been consolidated before a federal judge in New Jersey for pretrial information exchanges. J&J is attempting to set up a smaller but similar concentration of state-court suits in Delaware.

J&J’s move to transfer the 2,400 state-court cases put a temporary hold on some slated for trial this year, and lawyers for some women blaming the talc-based powder for their cancers say they won’t survive the delay. Federal judges in California and New Jersey will decide soon whether hundreds of cases should be sent back to state courts.

The case is In Re Imerys Talc America Inc., 19-00103, U.S. District Court, District of Delaware (Wilmington).

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