From The National Law Journal, Amanda Bronstad, September 22, 2016
A federal judge has remanded a case in which a California woman is scheduled to go to trial on Sept. 26 alleging Johnson & Johnson’s baby powder caused her to get ovarian cancer.
Wednesday’s order by U.S. District Judge Jean Hamilton in the Eastern District of Missouri rejected claims by Johnson & Johnson that the case, brought by 45 women or their family members, was a “sham” designed to avoid federal jurisdiction since 36 of the plaintiffs weren’t from Missouri or from California and New Jersey, where the defendants are based.
In an emergency motion, plaintiffs lawyer W. Wylie Blair had argued that Johnson & Johnson’s removal of Tiffany Hogans v. Johnson & Johnson was a stall tactic to avoid going to trial next week against one of the plaintiffs, Deborah Giannecchini. Two other plaintiffs in the case, filed in Missouri’s 22nd Judicial Circuit Court in St. Louis, got $72 million and $55 million verdicts against Johnson & Johnson earlier this year.
“The J&J defendants’ removal on the eve of trial is a desperate attempt to derail the trial of plaintiff Giannecchini’s case,” Blair, of Onder, Shelton, O’Leary & Peterson in St. Louis, wrote in his Sept. 19 remand motion. Blair, who was on the trial team that won the $72 million verdict, did not respond to a request for comment.
Hamilton found that Johnson & Johnson, in removing the case more than a year after it was filed, hadn’t proven that the plaintiffs acted in bad faith.
Johnson & Johnson’s move comes as the U.S. Judicial Panel on Multidistrict Litigation is set to hear arguments on Sept. 29 in Washington over whether to coordinate more than 40 lawsuits filed in federal courts against Johnson & Johnson over talcum powder.
Johnson & Johnson had unsuccessfully tried to remove the Hogans case once before. But this time, argued lawyer Beth Bauer, a partner at HeplerBroom in Edwardsville, Illinois, new evidence surfaced last month demonstrating that the case “borders on a ‘sham,’ ” as defined under the U.S. Court of Appeals for the Eight Circuit’s 2010 landmark holding in In re Prempro Products Liability Litigation.
Specifically, she wrote, the Missouri judge continued to set individual trials in the Hogans case, which is one of 20 cases in Missouri brought by 1,400 plaintiffs. At a hearing last month, the judge referenced the “over 800” talcum powder cases pending before him.
“We recognize that women and families affected by ovarian cancer are searching for answers, and we deeply sympathize with everyone affected by this devastating disease,” said Johnson & Johnson spokeswoman Carol Goodrich. “We are prepared for trial and will continue to defend the safety of Johnson’s Baby Powder because science, research, clinical evidence and decades of studies by medical experts around the world continue to support the safety of cosmetic talc.”