Judge Remands Talc Lawsuits to State Court

A federal judge has issued an order to remand three talc-related cancer lawsuits back to Missouri state court. The lawsuits represent 237 plaintiffs who claim that their diagnoses of ovarian cancer were linked to their use of talcum powder products.

In October 2015, U.S. District Judge Catherine Perry rejected the argument of the defendant, Johnson & Johnson, which had removed the lawsuits from state court to federal court. The defendant argued that the three suits were equivalent to a mass tort, which would place them under the jurisdiction of the U.S. District Court system.

Reasoning behind Judge Perry’s order

Because of the plaintiffs’ scheduling plans and because the plaintiffs had coordinated their complaints before the same judge for pre-trial proceedings, Johnson & Johnson argued that the litigation was a de facto joint trial request.

However, after reviewing the complaints and the defendant’s arguments, Judge Perry determined that remanding the cases back to the Circuit Court for the City of St. Louis was appropriate because the plaintiffs neither explicitly nor implicitly implied that 100 or more people sought a joint trial. According to Judge Perry’s order, she found that such intent was lacking in the complaints. Judge Perry further noted that the plaintiffs only filed in the same Missouri court for the purpose of streamlining the pre-trial matters, such as discovery.

Despite the lawsuits sharing the same docket, Judge Perry determined that the cases would not necessarily share the same trial. “Johnson & Johnson would have me conclude that plaintiffs’ ‘true purpose’ here was to seek a joint trial of their cases based on nothing more than parallel dates submitted in three separate proposed scheduling plans without any explanation of what these proposed dates actually mean. This I cannot do. Here, the parties never had a conference with the Division 10 judge about these proposed scheduling plans because Johnson & Johnson rushed to this courthouse with its removal papers immediately upon receiving the email from plaintiffs’ counsel.”

Plaintiffs claim talc linked to ovarian cancer

Despite Judge Perry’s recent order, it is possible that additional mass litigation regarding talcum powder risks may proceed against Johnson & Johnson at some future date. The U.S. Judicial Panel on Multidistrict Litigation (JPML) has the authority to establish multidistrict litigations (MDLs) when multiple plaintiffs file lawsuits against the same defendants, provided they share common allegations and similar statements of fact.

The plaintiffs who have joined the lawsuits against Johnson & Johnson claim that the company failed to adequately warn consumers of the potential risks of the long-term and frequent application of talcum powder products to women’s genitals. The plaintiffs state that the products in question, which include Johnson & Johnson’s Baby Powder and Shower-to-Shower talcum powder, can increase a woman’s risk of developing ovarian cancer.

Along with the lawsuits that were recently remanded to Missouri state court, Johnson & Johnson faces other complaints filed in New Jersey state court and in the federal court system. In 2014, two class action lawsuits were filed against the iconic company. One of these was filed by Mona Estrada in the U.S. District Court for the Eastern District of California. Estrada’s lawsuit points to her 60-plus years of talc powder use, but does not state that she developed ovarian cancer. Not long after Estrada filed her lawsuit, Barbara Mihalich filed a class action in the Southern District of Illinois. Mihalich was also not diagnosed with ovarian cancer, but seeks damages on the basis that the defendants allegedly violated the Illinois Consumer Fraud and Deceptive Business Practice Act.

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