Gould v. Johnson & Johnson et al

Filing 15

ORDER by Judge Haywood S. Gilliam, Jr. Granting 14 Stipulated Request to Stay Pending MDL Transfer Decision(ndrS, COURT STAFF) (Filed on 9/21/2016)

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Ben F. Pierce Gore (CA SBN 128515)
[e-mail]
PRATT & ASSOCIATES
1871 The Alameda, Suite 425
San Jose, California 95126
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff

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G. Gregg Webb (CA SBN 298787)
[e-mail]
SHOOK, HARDY & BACON L.L.P.
One Montgomery, Suite 2700
San Francisco, California 94104-4505
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendants
JOHNSON & JOHNSON and JOHNSON &
JOHNSON CONSUMER INC.
formerly known as JOHNSON & JOHNSON
CONSUMER COMPANIES, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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Case No. 4:16-cv-03838-HSG

DOLORES GOULD,
Plaintiff,
vs.
JOHNSON & JOHNSON and JOHNSON &
JOHNSON CONSUMER COMPANIES, INC.,

STIPULATED REQUEST FOR STAY
PENDING MDL TRANSFER DECISION;
DECLARATION OF G. GREGG WEBB;
AND ORDER

Defendants.

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Pursuant to Civil L.R. 6-2, Plaintiff Dolores Gould and Defendants Johnson & Johnson and

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Johnson & Johnson Consumer Inc., formerly known as Johnson & Johnson Consumer Companies,

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Inc., (together, the “Johnson & Johnson Defendants,” and collectively with Plaintiff, “the Parties”)

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hereby stipulate and request that the Court enter the accompanying Proposed Order staying this

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action for all purposes pending a decision by the Judicial Panel on Multidistrict Litigation (“JPML”)

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on the previously filed Motion for Transfer seeking to centralize this case and all other federal

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talcum powder cases filed nationally into a Multidistrict Litigation (“MDL”) proceeding (the “MDL
STIPULATED REQUEST FOR STAY PENDING MDL TRANSFER DECISION
CASE NO. 3:16-CV-04619-MMC

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Motion”). As described below, the Johnson & Johnson Defendants did not oppose creation of an

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MDL. The JPML has set the MDL Motion for hearing on September 29, 2016, and the Parties

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anticipate that the JPML will issue its ruling shortly thereafter. Granting a brief stay of this action

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will ensure that the JPML has an opportunity to hear and rule upon the pending Motion for Transfer

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and will prevent potentially unnecessary and duplicative proceedings before this Court, thereby

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conserving both this Court and the Parties’ time and resources.

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In support of this Stipulation, the Parties state further as follows:

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The Pending MDL Motion for Transfer

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1.

On July 15, 2016, plaintiff Tanashiska Lumas, whose case is pending in the Southern

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District of Illinois, filed a Motion for Transfer before the Judicial Panel on Multidistrict Litigation,

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requesting creation of an MDL proceeding to centralize eleven talcum powder cases filed in federal

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court, including this case. (See In re Johnson & Johnson Talcum Powder Marketing, Sales Practices

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and Products Liability Litigation, MDL No. 2738 (MDL Dkt. # 1).) There are presently at least 38

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individual actions pending in federal courts across the country in which Plaintiffs allege that perineal

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use of cosmetic talc products manufactured and marketed by Defendant Johnson & Johnson

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Consumer Inc. caused them to suffer ovarian cancer. In responding to the MDL Motion, the

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Johnson & Johnson Defendants did not oppose the creation of a multidistrict litigation proceeding

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for this action and other included actions pending nationwide. (See MDL Dkt. # 38.) The JPML set

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the hearing on the MDL Motion for its next Hearing Session on September 29, 2016, in Washington,

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D.C., and a ruling on whether this case and others will be centralized is anticipated shortly thereafter.

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(See MDL Dkt. # 57.)

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2.

The Parties agree that good cause exists to stay this action to permit the JPML to

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decide the pending Motion for Transfer. A stay will ensure that the JPML has an opportunity to hear

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and rule upon the Motion and will prevent potentially unnecessary and duplicative proceedings

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before this Court. “[A] majority of courts have concluded that it is often appropriate to stay

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preliminary pretrial proceedings while a motion to transfer and consolidate is pending with the MDL

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Panel because of the judicial resources that are conserved.” Rivers v. Walt Disney Co., 980 F. Supp.

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STIPULATED REQUEST FOR STAY PENDING MDL TRANSFER DECISION
CASE NO. 4:16-CV-03838-HSG

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1358, 1362 (C.D. Cal. 1997) (granting stay pending MDL transfer decision in part because “any

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efforts on behalf of this Court concerning case management will most likely have to be replicated by

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the judge that is assigned to handle the consolidated litigation.”). Should the JPML grant the Motion

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for Transfer this case likely will be transferred away from this Court and into an MDL proceeding

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established elsewhere. Therefore, a stay will conserve both judicial resources and those of the

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Parties as well as facilitate the efficient conduct of this action before this Court and as part of any

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future MDL proceeding. See also Calder v. A.O. Smith Corp., No. 04-1481 (JRT/AJB), 2004 U.S.

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Dist. LEXIS 12083, at *1-2 (D. Minn. June 1, 2004) (granting motion to stay pending MDL Panel’s

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transfer decision on grounds that “[d]eference to the MDL court for resolution of these matters

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provides the opportunity for the uniformity, consistency, and predictability in litigation that underlies

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the multidistrict litigation system”); U.S. Bank, Nat’l Ass’n v. Royal Indem. Co., No. Civ. A 3:02-

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CV-0853-P, 2002 WL 31114069, at *2 (N.D. Tex. Sept. 23, 2002) (“by granting the stay, the Court

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will avoid the unnecessary waste of judicial resources if the MDL Motion is ultimately granted.”).

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3.

The Parties further agree that a brief stay to permit the JPML to decide the Motion for

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Transfer will have no adverse effect on future proceedings in this action, nor will such a stay

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prejudice any of the Parties.

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Current Status of This Action
4.

On July 8, 2016, Plaintiff Dolores Gould filed her Complaint and Demand for Jury

Trial (“Complaint”) against the Johnson & Johnson Defendants (Dkt. #1).
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On July 28, 2016, the Parties filed a joint Stipulation to Extend Time for the Johnson

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& Johnson Defendants to respond to the Complaint (Dkt. # 7), extending Defendants’ time to

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respond to September 27, 2016.

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6.

The Johnson & Johnson Defendants’ deadline to answer, move, or otherwise respond

to Plaintiff’s Complaint is currently September 27, 2016.
7.

In addition, the following early case deadlines currently exist: (1) the Parties’ last

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day to meet-and-confer regarding ADR process, file ADR Certifications, and file either Stipulation

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to ADR Process or Notice of Need for ADR Phone Conference is currently September 28, 2016; (2)

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STIPULATED REQUEST FOR STAY PENDING MDL TRANSFER DECISION
CASE NO. 4:16-CV-03838-HSG

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an initial Case Management Conference in this matter is set for October 18, 2016; and (3) the

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attendant Joint CMC Statement is currently due October 11, 2016.

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Stipulated Stay
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For the reasons stated herein, the Parties stipulate to and request a stay of this action

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for all purposes, including without limitation all responsive pleading, discovery, hearings, and other

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deadlines, to permit a ruling on the Motion for Transfer currently pending before the Judicial Panel

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on Multidistrict Litigation, which ruling the Parties expect to receive during the first two weeks of

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October 2016. The Parties agree that this stay shall remain in full force and effect until lifted by

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court order upon motion of one or more Parties or as otherwise ordered by this Court or the MDL

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Court following transfer to an MDL.
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To the extent that this action is not transferred to an MDL by November 18, 2016, the

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Parties agree to provide the Court with a joint status report on or before that date to apprise the Court

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of the status of the Motion for Transfer.

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10.

No previous time modification has been requested by the Parties or ordered by the

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Court in this case. As described above, the Parties stipulated to an extension of the Johnson &

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Johnson Defendants’ deadline for responding to Plaintiff’s Complaint, and no other modifications

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have been sought or agreed to among the Parties. Granting this request will have no adverse effect

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on future proceedings in this matter.

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Dated: September 20, 2016

PRATT & ASSOCIATES

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By: /s/ Ben F. Pierce Gore
BEN F. PIERCE GORE

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Attorneys for PLAINTIFF
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STIPULATED REQUEST FOR STAY PENDING MDL TRANSFER DECISION
CASE NO. 4:16-CV-03838-HSG

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Dated: September 20, 2016

SHOOK, HARDY & BACON L.L.P.

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By: /s/ _G. Gregg Webb_________________
G. GREGG WEBB

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Attorneys for Defendants
JOHNSON & JOHNSON and
JOHNSON & JOHNSON CONSUMER
INC. formerly known as JOHNSON &
JOHNSON CONSUMER
COMPANIES, INC.

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STIPULATED REQUEST FOR STAY PENDING MDL TRANSFER DECISION
CASE NO. 4:16-CV-03838-HSG

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ORDER
PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED: September 21, 2016

________________________________________
HONORABLE HAYWOOD S. GILLIAM, JR.
UNITED STATES DISTRICT JUDGE

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STIPULATED REQUEST FOR STAY PENDING MDL TRANSFER DECISION
CASE NO. 4:16-CV-03838-HSG

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SIGNATURE ATTESTATION

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I, G. Gregg Webb, am the ECF User whose ID and password are being used to file this

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STIPULATED REQUEST FOR STAY PENDING MDL TRANSFER DECISION;

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DECLARATION OF G. GREGG WEBB, AND [PROPOSED] ORDER. In compliance with Local

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Rule 5-1(i), I hereby attest that counsel for all parties named have concurred in this filing.

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DATED: September 20, 2016

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SHOOK, HARDY & BACON, L.L.P.
By: /s/

G. Gregg Webb
______
G. GREGG WEBB
Attorneys for Defendants
JOHNSON & JOHNSON and
JOHNSON & JOHNSON CONSUMER
INC. formerly known as JOHNSON &
JOHNSON CONSUMER
COMPANIES, INC.

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STIPULATED REQUEST FOR STAY PENDING MDL TRANSFER DECISION
CASE NO. 4:16-CV-03838-HSG

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DECLARATION OF G. GREGG WEBB

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I, G. Gregg Webb, hereby declare:

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1.

I am an attorney licensed to practice before all Courts of the State of California and

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am an attorney with Shook, Hardy & Bacon LLP, counsel of record for Defendants Johnson &

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Johnson and Johnson & Johnson Consumer Inc., formerly known as Johnson & Johnson Consumer

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Companies, Inc., (together, the “Johnson & Johnson Defendants,” and collectively with Plaintiff,

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“the Parties”).

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2.

On July 15, 2016, plaintiff Tanashiska Lumas, whose case is pending in the Southern

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District of Illinois, filed a Motion for Transfer before the Judicial Panel on Multidistrict Litigation,

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requesting creation of an MDL proceeding to centralize eleven talcum powder cases filed in federal

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court, including this case. (See In re Johnson & Johnson Talcum Powder Marketing, Sales Practices

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and Products Liability Litigation, MDL No. 2738 (MDL Dkt. # 1).) There are presently at least 38

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individual actions pending in federal courts across the country in which Plaintiffs allege that perineal

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use of cosmetic talc products manufactured and marketed by Defendant Johnson & Johnson

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Consumer Inc. caused them to suffer ovarian cancer.

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3.

The Johnson & Johnson Defendants did not oppose the creation of an MDL.

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4.

On August 11, 2016, the JPML set the hearing on the Motion for Transfer for its next

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Hearing Session on September 29, 2016, in Washington, D.C., and a ruling on whether this case and

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others will be centralized is anticipated shortly thereafter.

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5.

On July 8, 2016, Plaintiff Dolores Gould filed her Complaint and Demand for Jury

Trial (“Complaint”) against the Johnson & Johnson Defendants (Dkt. #1).
6.

On July 28, 2016, the Parties filed a joint Stipulation to Extend Time for the Johnson

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& Johnson Defendants to respond to the Complaint (Dkt. #7), extending Defendants’ time to respond

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to September 27, 2016.

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7.

The Johnson & Johnson Defendants’ deadline to answer, move, or otherwise respond

to Plaintiff’s Complaint is currently September 27, 2016.

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STIPULATED REQUEST FOR STAY PENDING MDL TRANSFER DECISION
CASE NO. 3:16-CV-04619-MMC

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8.

In addition, the following early case deadlines currently exist: (1) the Parties’ last

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day to meet-and-confer regarding ADR process, file ADR Certifications, and file either Stipulation

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to ADR Process or Notice of Need for ADR Phone Conference is currently September 28, 2016; (2)

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an initial Case Management Conference in this matter is set for October 18, 2016; and (3) the

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attendant Joint CMC Statement is currently due October 11, 2016.

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9.

No previous time modification has been requested by the Parties or ordered by the

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Court in this case. As described above, the Parties stipulated to an extension of the Johnson &

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Johnson Defendants’ deadline for responding to Plaintiff’s Complaint, and no other modifications

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have been sought or agreed to among the Parties. Granting this request will have no adverse effect

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on future proceedings in this matter.

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I declare under penalty of perjury under the laws of the State of California and of the United

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States of America that the foregoing is true and correct, and this Declaration is executed on

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September 20, 2016, in Menlo Park, CA.

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___/s/ __G. Gregg Webb_______
G. GREGG WEBB

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STIPULATED REQUEST FOR STAY PENDING MDL TRANSFER DECISION
CASE NO. 4:16-CV-03838-HSG