The Curious Matter of the Disappearing Talc Cases

Remember the frustration, the anger even, the last time that you lost a dollar in a vending machine – the clunk of coins followed by silence and suspended disbelief. Did you thump the machine, or even shake it in the hopes that something would break free? Remember that feeling, and then multiply it 4.7 billion times. That is the amount of one baby powder verdict rendered against Johnson & Johnson involving only a few plaintiffs. Other verdicts against Johnson & Johnson in the last three years have ranged from $0 to $417 million.

Such numbers promote aggressive advocacy. Plaintiffs’ attorneys nationwide are pouring advertising dollars into plaintiff-friendly jurisdictions which both generate plaintiffs and pre-prejudice juries. Then, three weeks ago, Johnson & Johnson sought to halt the litigation. With a single swoop of its mighty pen, Johnson & Johnson removed over 2,400 pending talc cases to various federal courts across the United States for transfer and consolidation of venue in the U.S. Bankruptcy Court for the District of Delaware.

What makes this interesting is Johnson & Johnson is not the bankrupt party. It was only one of many creditors of Imerys Talc America Inc., a company that served as one of its suppliers. Johnson & Johnson then sought a stay of all such matters pending this transfer and consolidation. As a result, over 2,400 new matters now pend in both federal district and bankruptcy courts, with some federal courts considering the entirety of the cases removed, while others consider only Johnson & Johnson’s portion of the actions removed.

In response, virtually all plaintiffs have filed motions to remand their cases back to state court, challenging both the jurisdiction of the federal courts as well as the timing, nature, and substance of the claimed “related to” jurisdiction sought by Johnson & Johnson. They have also demanded that the federal courts abstain from ruling on the substantive issues in part because of the predominance of legal issues relating to the state court causes of action. Meanwhile, some Defendants in these cases have filed motions to extend the time within which they too may file motions to remove their portions of the cases, while others have done the opposite by filing statements challenging the jurisdiction of those bankruptcy courts.

Literally billions of dollars hang in the balance. For plaintiffs, Johnson & Johnson is a primary target and source of income. For defendants, the outcome of the above will determine both where, and whether, the cases can proceed, and against whom. For all litigants, the decisions rendered herein will prescribe the limits and boundaries of the bankruptcy court’s jurisdiction for claims sought by creditors of suppliers of raw materials or component parts, an unfortunately common occurrence in these competitive and tariff-filed times.

The situation remains fluid, chaotic, and costly. The U.S. Bankruptcy Court in Delaware denied a motion for an emergency stay. Then, although that may have the final say on remand issues, other courts have begun issuing opinions. In the last few weeks, one group of cases in New York was stayed, while 250 other cases in California, South Carolina, New Jersey, Indiana, Oregon, Illinois, New York, Massachusetts, and Texas were remanded. The Florida Southern District Bankruptcy Court has taken the issue of remand under advisement. No matter the outcome in this and other courts, the litigation will proceed in one forum or another. The tale of talc is now a tale of time, and only time will tell.