Rousseau v. Johnson & Johnson (2018)

Our plain-English summary of Rousseau v. Johnson & Johnson (U.S. District Court, Eastern District of Louisiana, May 17, 2018).

Marilyn Rousseau, a Louisiana citizen, was diagnosed with malignant mesothelioma, which she attributes to her own and her mother's use of cosmetic talc products. She alleged that talc is regularly contaminated with asbestos. She sued Johnson & Johnson and other companies in Orleans Parish state court, and the exposure was alleged to run from about 1948 through the late 1970s. Johnson & Johnson removed the case to federal court on diversity grounds, arguing that K&B Louisiana Corporation, the only non-diverse defendant, had been improperly joined. Rousseau asked for remand. The court had to decide whether Johnson & Johnson showed that she had no possibility of recovering against K&B, which sold but did not make the talc. Rousseau relied on Louisiana's pre-1988 'professional vendor' concept, under which a seller can be treated like a manufacturer. The court found the petition imperfectly drafted but not enough to show improper joinder. The events were forty to seventy years old, the case was at an early stage, and discovery was needed. It granted remand to state court.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Eastern District of Louisiana
• Decided: May 17, 2018
• Docket: Civil Action No. 18-2922
• Stage: Jurisdiction, venue or removal
• State: Louisiana

Outcome. The court granted plaintiff Marilyn Rousseau's motion to remand and sent the case back to Louisiana state court, rejecting Johnson & Johnson's claim that the non-diverse defendant K&B was improperly joined.

What the court held. A removing defendant claiming improper joinder must show no reasonable possibility of recovery against the non-diverse defendant, a heavy burden with doubts resolved for remand. Here, the allegations that K&B was a professional vendor, with the case still at an early stage, left a possibility of recovery.

Issues decided: Choice of Law, Venue, Removal and Transfer.

The people and their exposure

• Marilyn Rousseau: mesothelioma

The defendants

• Johnson & Johnson (manufacturer)
• Johnson & Johnson Consumer, Inc. (manufacturer)
• K&B Louisiana Corporation (supplier)
• American Talc Company (manufacturer)
• Brenntag Specialties, Inc. (supplier)
• Whittaker Clark & Daniels, Inc. (supplier)
• Charles B. Chrystal Co., Inc. (supplier)
• Colgate-Palmolive Company (manufacturer)
• Cyprus Amax Minerals Co. (manufacturer)
• Imerys Talc America, Inc. (manufacturer)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

MARILYN ROUSSEAU,

v.

JOHNSON & JOHNSON, ET AL., SECTION: "A" (1).

Civil Action No. 18-2922.

May 17, 2018.

United States District Court, E.D. Louisiana.

Marilyn Rousseau, Plaintiff, represented by Lindsey A. Cheek, Christopher Joseph Fransen, The Cheek Law Firm, Richard J. Arsenault, Neblett, Beard & Arsenault, Rubiante Lolana Brown, Cheek Law Firm, LLC & Wesley J. Gralapp, Neblett, Beard & Arsenault.

Johnson & Johnson, Defendant, represented by Kim E. Moore, Irwin Fritchie Urquhart & Moore, LLC, Claire Adams Noonan, Irwin Fritchie Urquhart & Moore, LLC, James B. Irwin, V, Irwin Fritchie Urquhart & Moore, LLC, John W. Sinnott, Irwin Fritchie Urquhart & Moore, LLC, Leila A. D'Aquin, Irwin Fritchie Urquhart & Moore, LLC & Meera Unnithan Sossamon, Irwin Fritchie Urquhart & Moore, LLC.

American Talc Company, Individually and as Successor to Suzorite Mineral Products Inc., a wholly owned subsidiary of Wold Companies, Defendant, represented by Paul D. Palermo, Blue Williams, LLP & Brett Wayne Tweedel, Blue Williams, LLP.

Brenntag Specialties, Inc., Individually and as Successor in Interest & Whittaker Clark & Daniels, Inc., Defendants, represented by Richard Munice Crump, Maron Marvel Bradley & Anderson, LLC & Shelley K. Napolitano, Maron Marvel Bradley & Anderson, LLC.

Charles B. Chrystal Co., Inc., Defendant, represented by Paula Marcello Wellons, Taylor, Wellons, Politz & Duhe, APLC & Desiree Weilbaecher Adams, Taylor, Wellons, Politz & Duhe, APLC.

Colgate-Palmolive Company, Defendant, represented by James M. Garner, Sher, Garner, Cahill, Richter, Klein & Hilbert, LLC, John T. Balhoff, II, Sher, Garner, Cahill, Richter, Klein & Hilbert, LLC & Rebekka C. Veith, Sher, Garner, Cahill, Richter, Klein & Hilbert, LLC.

Cyprus Amax Minerals Co., Individually and as Successor in Interest & Imerys Talc America, Inc., Improperly named as Successor in Interest to and f/k/a Luzenac, Inc., Defendants, represented by John Dennis Person, Aaron & Gianna, PLC, Courtney H. Payton, Aaron & Gianna, PLC, Lezly L. Petrovich, Aaron & Gianna, PLC & Omar Khalid Mason, Aaron & Gianna, PLC.

K&B Louisiana Corporation, Individually and as Successor in Interest to Katz & Bestoff, Inc., Defendant, represented by Lambert Joseph Hassinger, Jr., Galloway, Johnson, Tompkins, Burr & Smith, Jeffrey J. Siemann, Galloway, Johnson, Tompkins, Burr & Smith & Katherine W. Trotter, Galloway, Johnson, Tompkins, Burr & Smith.

Johnson & Johnson Consumer Inc., formerly known as Johnson & Johnson Consumer Companies, Inc, Defendant, represented by James B. Irwin, V, Irwin Fritchie Urquhart & Moore, LLC & Meera Unnithan Sossamon, Irwin Fritchie Urquhart & Moore, LLC.

ORDER AND REASONS

JAY C. ZAINEY, District Judge.

Before the Court is a Motion to Remand (Rec. Doc. 8) filed by Plaintiff, Marilyn Rousseau. Defendants Johnson & Johnson and Johnson & Johnson Consumer, Inc. (collectively "J & J") oppose the motion. The motion, noticed for submission on April 18, 2018, is before the Court on the briefs without oral argument.[1]

Plaintiff Marilyn Rousseau has been diagnosed with malignant mesothelioma, which she attributes to her and her mother's use of cosmetic talc products. According to Plaintiff, talc is regularly contaminated with asbestos and/or asbestiform contaminants that distinctly give rise to an increased risk of mesothelioma.

Plaintiff, a Louisiana citizen, initiated this suit in Orleans Parish state court against J & J and other defendants, who allegedly designed, manufactured, sold or supplied the talc products that she and her mother purchased and used here in Louisiana. Plaintiff's alleged exposure period is from approximately 1948 through the late 1970s.[2] J & J removed the suit to federal court claiming diversity jurisdiction. 28 U.S.C. § 1332(a)(1). All of the defendants, with the exception of K&B Louisiana Corporation (d/b/a Rite Aid Corporation), are diverse, non-Louisiana entities. Removal was grounded on the contention that Ms. Rousseau improperly joined K&B in order to defeat federal jurisdiction.

Plaintiff now moves to remand the case back to state court contending that J & J has not met its burden of establishing improper joinder as to the non-diverse defendant, K&B.

The improper joinder doctrine constitutes a narrow exception to the rule of complete diversity. Cuevas v. BAC Home Loans Serv., 648 F.3d 242, 249 (5th Cir. 2011) (citing McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005)). Improper joinder can be established in two ways: 1) actual fraud in the pleading of jurisdictional facts, or 2) the inability of the plaintiff to establish a cause of action against the non-diverse party in state court. Alviar v. Lillard, 854 F.3d 286, 289 (5th Cir. 2017) (quoting Mumfrey v. CVS Pharm., Inc., 719 F.3d 392, 401 (5th Cir. 2013)). To establish improper joinder under the second prong, the defendant must demonstrate that "there is no possibility of recovery" against the non-diverse defendant, "which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant." Id. (quoting Smallwood v. Illinois Cent. R. Co., 385 F.3d 568, 573 (5th Cir. 2004 (en banc)).

To determine whether an in-state defendant was improperly joined, the court may conduct a Rule 12(b)(6)-type analysis, looking initially at the allegations of the petition to determine whether the allegations state a claim against the non-diverse defendant under state law. Alviar, 854 F.3d at 289. The Court may also "pierce the pleadings" and consider summary judgment-type evidence so long as all unchallenged factual allegations are construed in the light most favorable to the plaintiff. Travis v. Irby, 326 F.3d 644, 648-49 (5th Cir. 2003). However, pretrying the case to determine removal jurisdiction is not appropriate. Griggs v. State Farm Lloyds, 181 F.3d 694, 700 (5th Cir. 1999) (citing Cavallini v. State Farm Mut. Auto Ins., 44 F.3d 256, 263 (5th Cir. 1995)). Any contested issues of fact and ambiguities of state law must be resolved in the plaintiff's favor. Travis, 326 F.3d at 648-49.

The focus of the improper joinder inquiry is on the joinder of the non-diverse defendant, not on the merits of the plaintiff's case. Cuevas, 648 F.3d at 249. The burden of establishing improper joinder is on the removing party and the burden is a heavy one. Id. Any doubt regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction and in favor of remand. Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000) (citing Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir.1988)).

Plaintiff argues that she has adequately alleged strict liability, negligence, and redhibition claims against K&B, even though K&B was not a manufacturer of talc products but rather was a non-manufacturer seller of those products. J & J points out that even under pre-Act law, a non-manufacturer seller cannot be liable for selling a defective product absent a showing that the product was defective—an allegation that Plaintiff cannot make. Plaintiff's answer to this problem is found in the pre-Act concept of a professional vendor, as discussed in Chappuis v. Sears Roebuck & Co., 358 So. 2d 926 (La. 1978). The responsibility of a seller found to be a professional vendor will be the same as that of a manufacturer, who of course is charged with knowledge of the defects in its products. See id. at 929. In Chappuis, where the retailer had held the product out to the public as its own, coupled with the size, volume, and merchandising practices of the retailer, the concept of professional vendor applied. Id. at 930.

J & J's position is that the factual allegations in the petition specific to K&B are insufficient to trigger professional vendor liability even if the allegations might apply that theory to other defendants. While the Court agrees that the allegations were not precisely and carefully drafted to make unequivocally clear that the pertinent allegations pertain to all defendants, the Court is not persuaded that the technical deficiencies identified by J & J establish improper joinder. The facts giving rise to the claims at issue occurred between forty and seventy years ago so Plaintiff will require discovery to flesh out her claims against all of the defendants, including K&B. This case is in its infancy and the Court cannot conclude with any degree of certainty that Plaintiff has no possibility of recovery against K&B. The affidavit of Bryan Shirtliff with Rite Aid (Rec. Doc. 1-4,

Exh. C) does nothing to impugn this conclusion. Moreover, the Court finds persuasive the opinion in McBride v. Johnson & Johnson, (Rec. Doc. 8-3, Exh. C), authored by Judge Wolfson, the district judge presiding over the talcum powder products MDL.

Accordingly, and for the foregoing reasons;

IT IS ORDERED that the Motion to Remand (Rec. Doc. 8) filed by Plaintiff, Marilyn Rousseau is GRANTED. This matter is REMANDED to the state court from which it was removed pursuant to 28 U.S.C. § 1447(c) for lack of subject matter jurisdiction.

[1] Plaintiff has requested oral argument but the Court is not persuaded that oral argument would be helpful. [2] All of Plaintiff's alleged exposure occurred prior to 1988 when the Louisiana Products Liability Act became law. The parties are in agreement that pre-Act Louisiana law applies to Ms. Rousseau's claims.

Sources

• The opinion on Google Scholar
• Louisiana asbestos laws
• Louisiana asbestos exposure sites