Hogans et al v. Johnson & Johnson et al
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Motion to Remand, (ECF No. 13), is GRANTED, and this matter is REMANDED to the Circuit Court of the City of St. Louis, State of Missouri. 13 Signed by District Judge Jean C. Hamilton on 9/24/14. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
TIFFANY HOGANS, et al.,
JOHNSON & JOHNSON, et al.,
Cause No. 4:14-cv-1385 (JCH)
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs Motion to Remand, which Plaintiffs filed on
August 15, 2014. (ECF No. 13). The Motion has been fully briefed and is ready for disposition.
Plaintiffs filed their Petition in the Circuit Court for the City of St. Louis, Missouri on
June 23, 2014. (Petition, ECF No. 6). There are 65 plaintiffs in this action. Each plaintiff claims
that she used talcum powder products and that she “developed ovarian cancer, and suffered
effects attendant thereto, as a direct and proximate result of the unreasonably dangerous and
defective nature of talcum powder . . . .”1 (Petition ¶¶ 2-66). These claims are alleged to be the
“direct and proximate result of Defendants’ and/or their corporate predecessors [sic] negligent,
willful, and wrongful conduct in connection with the design, development, manufacture, testing,
packaging, promoting, marketing, distribution, labeling, and/or sale of the products known as
Johnson & Johnson Baby Powder and Shower to Shower . . . .” (Petition ¶ 1). The link between
talcum powder and ovarian cancer was allegedly first suggested by a study conducted in 1971.
(Petition ¶ 79). Defendants are alleged to have had a duty to know of the carcinogenic properties
One of the 65 plaintiffs brings a wrongful death claim on behalf of the estate of a woman who allegedly
developed ovarian cancer as a result of using talcum powder. (Petition ¶ 20).
of talcum powder and to have “procured and disseminated false, misleading, and biased
information regarding the safety of the PRODUCTS to the public and used influence over
governmental and regulatory bodies regarding talc.”2 (Petition ¶¶ 89, 91). The claims brought
against Defendants based on these activities include failure to warn, negligence, breach of
warranty, and civil conspiracy. (Petition at 51-58).
Defendants Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc.
(collectively the “J&J Defendants”) removed the action to this Court on August 8, 2014, despite
the lack of complete diversity on the face of the Petition. (Notice of Removal, ECF No. 1).
Plaintiffs filed this Motion to Remand on August 15, 2014, and the J&J Defendants have filed a
Response to the Motion. The J&J Defendants assert that removal is appropriate under the
fraudulent misjoinder doctrine despite the lack of complete diversity.
“Removal statutes are strictly construed, and any doubts about the propriety of removal
are resolved in favor of state court jurisdiction and remand.” Manning v. Wal-Mart Stores East,
Inc., 304 F. Supp. 2d 1146, 1148 (E.D. Mo. 2004) (citing Transit Cas. Co. v. Certain
Underwriters at Lloyd’s of London, 119 F.3d 619, 625 (8th Cir. 1997)). The party invoking
federal jurisdiction and seeking removal has the burden of establishing jurisdiction by a
preponderance of the evidence. Central Iowa Power Co-op. v. Midwest Indep. Transmission Sys.
Operator, Inc., 561 F.3d 904, 912 (8th Cir. 2009); see also Nicely v. Wyeth, Inc., 2011 WL
2462060 at *2 (E.D. Mo. Jun. 17, 2011).
A civil action brought in state court may be removed to the proper district court if the
district court has original jurisdiction over the action. 28 U.S.C. § 1441(a). “Federal district
courts have original jurisdiction in all civil actions between citizens of different states if the
“Talc is the main substance in talcum powders.” (Petition ¶ 72).
amount in controversy exceeds $75,000.00, exclusive of interest and costs.”3 Manning, 304 F.
Supp. 2d at 1148 (citing 28 U.S.C. § 1332(a)(1)). Actions where jurisdiction is predicated solely
on diversity are “removable only if none of the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b). The
diversity jurisdiction statute has also been interpreted to require complete diversity, which means
that “diversity jurisdiction does not exist unless each defendant is a citizen of a different state
from each plaintiff.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978)
(emphasis in original). The J&J Defendants assert that this situation falls within the contours of
the fraudulent misjoinder doctrine, which, where it has been adopted, is an exception to the
requirement of complete diversity.
“Courts have long recognized fraudulent joinder as an exception to the complete diversity
rule.” In re Prempro Products Liability Litigation, 591 F.3d 613, 620 (8th Cir. 2010) (citing 14B
Charles Alan Wright et al., Federal Practice and Procedure § 3723 (4th ed. 2009)). “Fraudulent
joinder occurs when a plaintiff files a frivolous or illegitimate claim against a non-diverse
defendant solely to prevent removal.” Id. Fraudulent misjoinder is a more recent exception to the
complete diversity rule. Id. “Fraudulent misjoinder ‘occurs when a plaintiff sues a diverse
defendant in state court and joins a viable claim involving a nondiverse party, or a resident
defendant, even though the plaintiff has no reasonable procedural basis to join them in one action
because the claims bear no relation to each other.’” Id. (quoting Ronald A. Parsons, Jr., Should
the Eighth Circuit Recognize Procedural Misjoinder?, 53 S.D. L. Rev. 52, 57 (2008)).
The Eighth Circuit has acknowledged the fraudulent misjoinder doctrine but has declined
to either adopt or reject it. See Prempro, 591 F.3d at 622. When presented the opportunity to
adopt the doctrine in Prempro, the court concluded that the facts of the case did not warrant
There is no dispute in this case that the amount in controversy exceeds $75,000.
application of the doctrine even if it were to be adopted. Id. The court began its reasoning with
the observation that the Eighth Circuit uses “a very broad definition for the term ‘transaction[,]’”
as that term applies in the context of permissive joinder under Fed. R. Civ. P. 20. Specifically,
the term may be understood to “comprehend a series of many occurrences, depending not so
much upon the immediateness of their connection as upon their logical relationship.” Id. The
Prempro court then took account of the second requirement for permissive joinder under Rule
20—the existence of “common questions of law and fact.” Id. at 623. The court also observed
that the question of whether joinder is proper under Rule 20 is distinct from that of whether a
party has been fraudulently misjoined, i.e., that something more than a mere procedural
impropriety is required for fraudulent misjoinder to apply. See id. at 623-24 (finding that despite
the inapplicability of fraudulent misjoinder, “[i]t may be that the plaintiffs’ claims are not
properly joined”). Fraudulent misjoinder can only be applied where there is evidence of bad faith
and “evidence that plaintiffs’ misjoinder borders on a sham.” See id. at 623, 624 (internal
quotation marks omitted). For instance, fraudulent misjoinder may be applicable where there is
“‘no real connection’” between plaintiffs’ claims. See id. at 621 (quoting Tapscott v. MS Dealer
Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996)).
The Prempro plaintiffs all claimed that “they or a decedent family member had
developed breast cancer from taking [hormone replacement therapy (“HRT”)] medications.” Id.
at 617. A link between HRT drugs and breast cancer was allegedly discovered in a study
conducted by the Women’s Health Initiative, the results of which were published in 2002 in The
Journal of the American Medical Association. Id. The plaintiffs brought claims against several
manufacturers of HRT drugs. Id. The claims included “state law claims for negligence, strict
liability, breach of implied warranty, breach of express warranty, fraud, negligent
misrepresentation, and statutory violations of the False and Misleading Advertising Act, the
Prevention of Consumer Fraud Act, and the Uniform Deceptive Trade Practices Act.” Id.
The Prempro court found that the plaintiffs’ claims all arose from a series of transactions
between the HRT manufacturers and the HRT users because the plaintiffs alleged that “the
manufacturers conducted a national sales and marketing campaign to falsely promote the safety
and benefits of HRT drugs and understated the risks of HRT drugs.” Id. at 623. This finding was
further supported by the plaintiffs’ allegation that each “developed breast cancer as a result of the
manufacturers’ negligence in designing, manufacturing, testing, advertising, warning, marketing,
and selling HRT drugs.” Id. The court also found that there was likely to be common questions
of law and fact between the claims, such as the causal link between HRT drugs and breast
cancer. Id. Based on these findings, the Prempro court was unable to conclude that the plaintiffs’
claims had “‘no real connection’ to each other such that they [were] egregiously misjoined.” Id.
This was true despite the fact that “[s]ome of the plaintiffs allege[d] to have taken several HRT
drugs made by different manufacturers.” Id.
The facts here are substantially indistinguishable from Prempro. Plaintiffs have alleged
joint action between the Defendants in the manufacturing, testing, promoting, warning,
marketing, and selling of products containing talcum powder. They claim that the main
substance in talcum powder has long been linked with an increased risk of ovarian cancer, that
Defendants at least should have known about that increased risk, and that Defendants acted in
concert to conceal the information from consumers. Plaintiffs have all allegedly used talcum
powder in a similar manner, albeit for different periods of time, and they have all allegedly
developed ovarian cancer as a result. While the J&J Defendants are correct that there may be
some differences between each of the Plaintiffs’ claims, the similarity to the facts in Prempro
requires the conclusion that there is a logical connection between the claims such that the
fraudulent misjoinder doctrine, even if it were adopted, is inapplicable.
The J&J Defendants contend, for the following reasons, that the Eighth Circuit would
reconsider Prempro if given the opportunity: (1) that Prempro effectively eliminated the “same
transaction” prong of the joinder inquiry; (2) that a showing of mere procedural impropriety
rather than egregiousness or bad faith is more fitting for the application of procedural misjoinder;
and (3) that cases such as this, which are carefully structured to avoid diversity jurisdiction, are
egregious per se. (J&J Response, ECF No. 22, at 13-14). In support of their contention, the J&J
Defendants cite several post-Prempro cases, all of which are from districts outside the Eighth
None of the reasons given is persuasive. The first rests on misreading of Prempro; the
second on a misunderstanding of the nature of federal jurisdiction; and the third on an inadequate
appreciation of a plaintiff’s right to select a forum. Moreover, decisions calling into question
Prempro’s persuasiveness in the Eastern District of New York, the District of New Jersey, the
District of Nevada, and the Southern District of West Virginia are not sufficient indicators that
the Eighth Circuit Court of Appeals is likely to alter a precedent that has been applied
consistently in the Eighth Circuit.
Complete diversity does not exist, and the facts of this case do not warrant application of
the fraudulent misjoinder doctrine.
IT IS HEREBY ORDERED that Plaintiffs Motion to Remand, (ECF No. 13), is
GRANTED, and this matter is REMANDED to the Circuit Court of the City of St. Louis, State
Dated this 24th day of September, 2014.
/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
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