Blaes v. Johnson & Johnson et al

Filing 97

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion to Compel Entry Upon Land (ECF No. 91 ) is DENIED. Signed by District Judge Ronnie L. White on April 2, 2015. (BRP)

MICHAEL BLAES,

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
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Plaintiff,
v.
JOHNSON & JOHNSON, et al. ,
Defendants.

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No. 4:14-CV-213 RLW

MEMORANDUM AND ORDER
This matter is before the court on Plaintiffs Motion to Compel Entry Upon Land
("Motion to Compel"; ECF No. 91). This matter is fuily briefed and ready for disposition.

BACKGROUND
In this case, Plaintiff alleges that his wife, Shaun Blaes ("the decedent"), developed
ovarian cancer as a result of applying talcum powder to her genital area for almost thirty years.
(Plaintiffs Petition, ECF No . 6, ififl , 23)). Plaintiff alleges that the Defendants did not warn
about an ovarian cancer risk associated with consumer talc cosmetic powders when the products
are applied to the genital region. (Petition, ifif41 , 4 7, 48 , 49 (discussing application of talcum
powder to perinea! area)). Plaintiff alleges that Johnson & Johnson manufactured and sold talc
cosmetic powders to the decedent, and that Imerys, a bulk supplier, supplied the talc that Johnson
& Johnson used in the talc cosmetic powders. (Petition, ifif4-5, 7, 41 , 43).

STANDARD OF REVIEW
Pursuant to Fed.R.Civ.P. 26(b)(l), the parties are entitled to "obtain discovery regarding
any matter, not privileged, which is relevant to the subject matter involved in the pending
action .. .." Rule 34(a)(2) provides that " [a] party may serve on any other party a request within

the scope of Rule 26(b) to permit entry onto designated land or other property. possessed or
controlled by the responding party, so that the requesting party may inspect, measure, survey,
photograph, test, or sample the property or any designated object or operation on it."
DISCUSSION

On January 13 , 2015, Plaintiff served his Rule 34(a)2) request on the Johnson & Johnson
Defendants, asking that they "permit Plaintiff enter onto the premises where the Johnson &
Johnson Defendants received their supply of talc used in making Johnson' s Baby Powder and
Shower to Shower at the time said supply of talc is being delivered in order to inspect,
photograph and video the delivery process and the manufacturing process of Johnson' s Baby
Powder and Shower to Shower." (ECF No. 91-1). On January 13, 2015, Plaintiff served his
Rule 34(a)(2) request on Defendant Imerys, asking it "permit Plaintiff enter onto the premises
where the talc supplied to the Johnson & Johnson [Defendants] is processed and prepared for
distribution in order to inspect, photograph and video the said process." (ECF No. 91-2).
In response, Defendants first claims that Plaintiffs request for entry upon land fails to
comply with the reasonable specificity and particularity requirements of Rule 34, including the
particular item or category of items to be inspected as well as the time, place, and manner for the
inspection. (ECF No. 94 at 3-4). In addition, Defendants maintain that Plaintiffs Rule 34
request does not seek information that is relevant or reasonably calculated to the lead to the
discovery of admissible evidence. Defendants claim that occupational standards and protections
provided to workers who handle talc are irrelevant to the instant action. (ECF No. 94 at 8).
Likewise, Plaintiff has not alleged any manufacturing claims so documenting the manufacturing
process is not relevant to Plaintiffs wrongful death claims. (ECF No. 94 at 10). Furthermore,
the product at issue in the wrongful death claim is the ultimate product manufactured by Johnson

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& Johnson, not the raw talc. (ECF No. 94 at 11). Defendants also contend that inspection is not

necessary to learn the contents of information provided by Imerys to Johnson & Johnson because
such information can be obtained through less burdensome means and has already been
requested through interrogatories and requests for production of documents. (ECF No. 93 at 8;
ECF No. 94 at 9). In addition, Imerys has already provided Material Safety Data Sheet forms to
Plaintiffs counsel pursuant to litigation in the Missouri state court case. (ECF No. 94 at 9).
Finally, Defendants assert that the burden of an inspection is outweighed by any potential
benefit. (ECF No. 94 at 12-13). Talc is manufactured at Imerys' Houston facility. The facility
overseen by the Mine Safety and Health Administration, which sets guidelines regarding
visitors' inspection of the plant. Defendants maintain that the manufacturing equipment utilized
Imerys' Houston facility is "proprietary and highly classified," and an inspection would pose a
significant risk to Imerys' trade secrets.
The Court agrees that Plaintiffs Rule 34 request seeks irrelevant information that is not
reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs allegations
stem from a wrongful death as a result of the decedent's use of a product on her perineal area.
These allegations have little to do with workplace protections or manufacturing protocol. See

Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904, 908 (4th Cir. 1978); DUSA Pharm. , Inc.
v. New England Compounding Pharmacy, Inc., 232 F.R.D. 153, 154 (D. Mass. 2005)(denying
motion to compel inspection where "alternative and reasonably adequate methods of discovery
are available to plaintiffs").

Likewise, the Court believes that any relevant information can

obtained through less burdensome means, including discovery requests and deposition testimony.

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Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Motion to Compel Entry Upon Land (ECF

No. 91) is DENIED.

Dated this 2nd day of April, 2015.

~/.M!ih
RONNIE L. WHITE
UNITED ST ATES DISTRICT JUDGE

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