Overruling the objections of the plaintiffs, the Judicial Panel on Multidistrict Litigation (JPMDL) transferred four talcum powder cases against Johnson & Johnson out of federal courts in Missouri and Pennslyvania and into the defense-friendly District of New Jersey.
In September 2016, Johnson & Johnson persuaded a New Jersey judge to throw out two women’s lawsuits blaming the health-care company’s talcum powder for their ovarian cancer.
J&J is using the ruling to fend off more than 3,100 suits in state and federal courts accusing the drug maker of ignoring studies that linked its talc products to ovarian cancer. Judge Nelson Johnson in Atlantic City ruled that the women couldn’t produce medical evidence showing J&J’s Baby Powder caused cancer.
In the New Jersey cases, J&J said testimony from experts hired by the women’s lawyers to outline links between talc and ovarian cancer suffered from “multiple deficiencies” and didn’t provide legitimate grounds for the suits.
“The court’s decision appropriately reflects the science and facts at issue in this litigation,” gloated Carol Goodrich, a J&J spokeswoman. “Science, research, clinical evidence and decades of studies by medical experts around the world continue to support the safety of cosmetic talc.”
Transfer to New Jersey
Plaintiffs in the federal Missouri actions had moved under Panel Rule 7.1 to vacate the JPMDL’s orders that conditionally transferred the actions to the District of New Jersey for inclusion in MDL No. 2738. Defendants Johnson & Johnson, Johnson & Johnson Consumer Companies, Inc., and Imerys Talc America, Inc., successfully opposed the motions.
The four cases are:
Eastern District of Missouri
- GHORMLEY, ET AL. v. JOHNSON & JOHNSON, ET AL., C.A. No. 4:17-00585
- KRUEGER, ET AL. v. JOHNSON & JOHNSON, INC., ET AL., C.A. No. 4:17-00839
- HENSLEY, ET AL. v. JOHNSON & JOHNSON, ET AL., C.A. No. 4:17-00972
Eastern District of Pennsylvania
- MOORE, ET AL. v. JOHNSON & JOHNSON, ET AL., C.A. No. 2:17-01164
The plaintiffs argued that federal subject matter jurisdiction was lacking, and that their motions to remand to state court were pending. “The JPMDL has held that jurisdictional issues generally do not present an impediment to transfer, as plaintiffs can present these arguments to the transferee judge,” the panel judges said.
Plaintiffs in the Moore action pending in the Eastern District of Pennsylvania also argued that transfer of Moore is not right because that action involves a differently named defendant than the other actions pending in the MDL and different applicable state law.
“Transfer under Section 1407 does not need a complete identity of factual issues or parties as a prerequisite to transfer when the actions arise from a common factual core. See In re 100% Grated Parmesan Cheese Mktg. & Sales Practices Litig., 201 F. Supp. 3d 1375, 1378 (J.P.M.L. 2016),” the JPMDL ruled.
“We find that these actions involve common questions of fact with the actions transferred to MDL No. 2738, and that transfer under 28 U.S.C. § 1407 will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation.”
The plaintiffs or their decedents developed ovarian or other gynecological cancer following perineal application of Johnson & Johnson’s talcum powder products (namely, Johnson’s Baby Powder and Shower to Shower body powder). See In re Johnson & Johnson Talcum Powder Prods. Mktg., Sales Practices & Prods. Liab. Litig., MDL No. 2738, __ F. Supp. 3d __, 2016 WL 5845997 (J.P.M.L. Oct. 4, 2016).
In May 2017 a Missouri state court jury awarded a $110 million verdict in a talc case against Johnson & Johnson. It was the fourth mega-verdict delivered against Johnson & Johnson, which has known about the ovarian cancer risks since the 1970s. In 2016 juries returned verdicts of $72 million, $70 million and $55 million against J&J in lawsuits filed by women with ovarian cancer.
The case was Lois Slemp v. Johnson & Johnson et al., case number 1422-CC09326-01, in the 22nd Judicial Circuit Court of Missouri before Judge Rex Burlison. More talc trials are set in St. Louis for July, with the first case in California, set to go to trial in July.