Ferrar et al v. Johnson & Johnson et al

Filing 39

MEMORANDUM AND ORDER OF REMAND. (See Full Order.) IT IS HEREBY ORDERED that plaintiffs' motion for remand 23 is granted, and this case is remanded to the 22nd Judicial Circuit Court of the City of St. Louis, Missouri. IT IS FURTHER ORDERED that all pending motions are denied without prejudice to being refiled in state court. Signed by District Judge Catherine D. Perry on 9/14/2015. (Order and certified docket sheet sent to St. Louis City Circuit Court this date.)(CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TENESHA FERRAR, et al.,

)
)
Plaintiffs,
)
)
vs.
) Case No. 4:15 CV 1219 CDP
)
JOHNSON & JOHNSON CONSUMER )
COMPANIES, INC.,
)
)
Defendants.
)
MEMORANDUM AND ORDER OF REMAND
This is the second time this removed case has been before me on a motion
for remand. Plaintiffs in this case are 98 individuals (or their spouses and/or
personal representatives) who allege that they developed ovarian cancer from using
Johnson & Johnson baby powder and shower products. Defendant Johnson &
Johnson designed, developed, manufactured, marketed and sold the products, and
defendant Imerys Talc mined the talc contained in the products. Plaintiffs filed
this action on October 31, 2014, in the Circuit Court for the City of St. Louis,
Missouri seeking to recover damages from defendants under state law claims for
failure to warn, negligence, breach of warranty, wrongful death, civil conspiracy,
and concert of action. Johnson and Johnson removed this case the first time on
November 18, 2014, alleging diversity jurisdiction under 28 U.S.C. § 1332.

(Cause Number 4: 14 CV 1933 CDP). I subsequently remanded the case on
December 12, 2014, based on a concession from Johnson & Johnson that remand
was appropriate. (Id. at Docket # 29).
After the case was remanded, a second set of 71 plaintiffs filed a lawsuit in
the same state court against the same defendants for injuries related to their use of
the same baby powder and shower products. That case is styled Dysart, et al. v.
Johnson & Johnson, et al., and was assigned Cause Number 1522-CC00167 by the
state court. On May 21, 2015, a third set of 68 plaintiffs filed a lawsuit against the
same defendants in the same state court for the same type of injuries allegedly
caused by the same products. That case is styled Young, et al. v. Johnson &
Johnson, et al., and was assigned Cause Number 1522-CC09728 by the state court.
The same attorneys represent the plaintiffs in all three cases.
The Circuit Court for the City of St. Louis, Missouri, where all three cases
were filed, assigns multi-plaintiff cases to Division 17 for initial pre-trial
management. Then, the judge in Division 17 assigns cases to a trial judge for
further pre-trial management and disposition. The Farrar case was assigned to
Division 10 for “disposition, including trial” by the Division 17 presiding judge by
Order dated June 9, 2015. [1-4]. On June 23, 2015, the plaintiffs in the Dysart
case filed a motion to transfer their case to Division 10 “for pre-trial management”
“so as to manage the pre-trial proceedings of this action, promote judicial
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economy, and maintain consistency in management of the Court’s docket.” [1-5].
The reason cited by plaintiffs was “other multi-plaintiff pharmaceutical and
medical device cases have been assigned to Division 10 for pre-trial management.”
Id. The Young plaintiffs filed an identical motion to transfer in their case. [1-6].
Neither the Dysart nor the Young plaintiffs requested assignment to Division 10 for
trial. Despite this, the Division 1 judge who received the motions ordered the
motions granted on June 23, 2015, but he also included a handwritten notation on
each motion transferring the cases to Division 10 for “pre-trial management and
trial . . . .” Farrar was set for trial in state court on a September 19, 2016, trial
docket. [1-10 at 167]. Dysart and Young were not assigned trial dates by the state
court.
On August 8, 2015, plaintiffs’ counsel sent defense counsel proposed
scheduling plans for all three cases. These proposals are attached as Exhibit A to
the Notice of Removal and form the basis for the second removal of this case. The
proposed scheduling plans follow a format suggested by defendants and are three
separate documents, each with its own case caption and case number. However,
they propose using the same deadlines for all three cases. Under the “Trial”
heading, plaintiffs’ counsel suggested November 29, 2016, for all three cases.
These proposals were never filed or submitted to the state court, and the state court
never approved any of these schedules. Relying on these proposed schedules,
3

Johnson & Johnson removed this case (along with Dysart and Young)1 a second
time, arguing that under the Class Action Fairness Act (CAFA), 28 U.S.C. §
1332(d), Ferrar, Dysart and Young constitute a “mass action” as defined in 28
U.S.C. § 1332(d)(11)(B). Because Ferrar, Dysart, and Young do not constitute a
mass action subject to removal under CAFA, this case will again be remanded to
state court.
Discussion
“A defendant may remove a state law claim to federal court only if the
action originally could have been filed there.” In re Prempro Products Liability
Litigation, 591 F.3d 613, 619 (8th Cir. 2010). “The defendant bears the burden of
establishing federal jurisdiction by a preponderance of the evidence.” Altimore v.
Mount Mercy College, 420 F.3d 763, 768 (8th Cir. 2005). A case must be
remanded if, at any time, it appears that the district court lacks subject matter
jurisdiction. 28 U.S.C. § 1447(c).
Under CAFA, the federal district courts have original jurisdiction over
“mass actions,” which are defined as a civil action “in which monetary relief
claims of 100 or more persons are proposed to be tried jointly on the ground that
the plaintiffs’ claims involve common questions of law or fact . . . .” 28 U.S.C. §
1332(d)(11)(B)(i) (emphasis added). CAFA excludes from the definition of mass
1

The Young and Dysart cases have been assigned to the Honorable E. Richard Webber (Case
Nos. 4:15CV1221 and 4:15CV1222).

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action a case where “the claims are joined upon motion of a defendant,” or where
“the claims have been consolidated or coordinated solely for pretrial proceedings.”
§ 1332(d)(11)(B)(ii)(II,IV) (emphasis added). Even where “plaintiffs concede that
their respective individual claims involve common questions of law or fact, 28
U.S.C. § 1332(d)(11)(B)(i), state court plaintiffs with common claims against a
common defendant may bring separate actions, each with fewer than 100 plaintiffs,
to avoid federal jurisdiction under CAFA—unless their claims are proposed to be
tried jointly.” Atwell v. Boston Scientific Corp., 740 F.3d 1160, 1162-63 (8th Cir.
2013) (internal quotation marks and citations omitted). The critical issue here, as
in many “mass action” cases, is if plaintiffs proposed a joint trial. The proposal for
a joint trial may be explicit or implicit. See id. at 1163 (citing Koral v. Boeing Co.,
628 F.3d 945, 947 (7th Cir. 2011)). “The determination of whether claims in a
putative mass action have been proposed to be tried jointly is necessarily a fact
intensive inquiry that requires examination of both the ‘initial pleading’ and, if the
case was not initially removable on that basis, any ‘pleading, motion, order or
other paper from which it may first be ascertained that the case is one which is or
has become removable.’” Smith v. Medtronic, Inc., 4:14CV1636 CEJ, 2014 WL
5489301, at *2 (E.D. Mo. Oct. 30, 2014) (quoting 28 U.S.C. § 144b(b)(3)).
In Atwell, three groups of plaintiffs brought product liability actions in the
St. Louis Circuit Court, claiming that they were injured by the defendants’
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transvaginal mesh devices. Each group consisted of fewer than 100 plaintiffs.
Each group of plaintiffs filed motions asking that all of the cases be assigned to a
single judge for purposes of discovery and trial. Id. at 1161. The cases were
removed to federal court as a mass action, and two were remanded. In determining
whether remand was appropriate, the Eighth Circuit Court of Appeals framed the
issue as follows:
[T]he critical issue becomes whether the three groups of plaintiffs
proposed that their claims be “tried jointly,” in which case §
1332(d)(11)(B)(i) applies and the cases are removable, or simply
asked that their respective claims be ‘consolidated or coordinated
solely for pretrial proceedings,’ in which case § 1332(d)(11)(B)(i)(IV)
applies and the cases are not removable. The answer to this question
requires careful review of the proceedings in the City of the St. Louis
Circuit Court.
Id. at 1163. As instructed by Atwell, I have examined the voluminous state court
record to determine whether the plaintiffs here, in Dysart, or in Young either
explicitly or implicitly proposed that their claims be tried jointly. See id. Based on
that review, I find that no such request was expressly made or can be inferred.
This case is easily distinguishable from Atwell because plaintiffs here did not
request assignment to the same judge for trial. Instead, plaintiffs requested
assignment to the same judge for pretrial proceedings only, and such a request is
expressly excluded from CAFA’s definition of mass action. See id. at 1163 (noting
that if plaintiffs “simply asked that their respective claims be consolidated or
coordinated solely for pretrial proceedings,” then § 1332(d)(11)(B)(i)(IV) applies
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and “the cases are not removable.”) (internal quotation marks omitted). Moreover,
unlike Atwell, plaintiffs here never argued that the same judge should hear all the
so-called “talc cases” because “the same legal issues arise over and over . . . and . .
. it doesn’t make sense to have inconsistent rulings . . . .” Id. at 1164. In fact, the
Dysart and Young motions for transfer do not refer to each other, the Ferrar case,
or other “talc cases.” Instead, the motions only request assignment to Division 10
because “other multi-plaintiff pharmaceutical and medical device cases have been
assigned to Division 10 for pre-trial management.” Here, unlike Atwell, the Court
cannot infer that the “true purpose” of the plaintiffs’ motions was a “joint
assignment in which the inevitable result will be that their cases are tried jointly.”
Id. at 1165 (internal quotation marks omitted). Atwell does not support removal in
this case.
To the extent Johnson & Johnson argues that the state court’s sua sponte
assignment of all three cases to the same trial judge somehow constitutes a
“proposal for joint trial” by plaintiffs, I find this argument unpersuasive and agree
with the Seventh Circuit Court of Appeals that “the state court’s deciding on its
own initiative to conduct a joint trial would not enable removal . . . That would not
be a proposal . . . .” Koral v. Boeing Co., 628 F.3d 945, 946-47 (7th Cir. 2012).

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The Eighth Circuit relied on Koral in deciding Atwell, and I apply the same
reasoning here.2
Here, Johnson & Johnson argues that this case became removable on August
8, 2015, when plaintiffs’ counsel emailed proposed scheduling plans for all three
cases to defense counsel. According to Johnson & Johnson, this amounted to a
“proposal” for joint trial under the mass action provision of CAFA because
plaintiffs suggested November 29, 2016 under the “Trial” heading in all three
scheduling plans. The parties spend a great deal of time in their briefs arguing
about what constitutes a “proposal” under CAFA as the term is not defined in the
statute. Even if I assume for purposes of this motion only that the email
communication in question constitutes a “proposal” for purposes of CAFA, the
proposed scheduling plans here do not amount to a proposal for joint trial.
Similar to this Court, the Circuit Court for the City of St. Louis, Missouri,
designates cases on particular tracks when they are filed to indicate when the case
should be ready for trial. Under that court’s Local Rule 31.5, products liability

2

This argument would not support removal in any case because if such an event were sufficient
to trigger the mass action provision of CAFA, then removal would be untimely. Dysart and
Young were assigned to Division 10 on June 23, 2015, and Johnson & Johnson did not remove
this case until August 8, 2015, which is outside the 30-day window for removal. See 28 U.S.C. §
1446(b)(3) (“[I]f the case stated by the initial pleading is not removable, a notice of removal may
be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of
an amended pleading, motion, order or other paper from which it may first be ascertained that the
case is one which is or has become removable.”).

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cases such as this one are designated as Track 2 cases, which “shall be ready for
trial 370 days from the date of filing.” The court’s local rules do not require
parties to submit proposed scheduling orders unless the parties are requesting a
redesignation from Track 2 to Track 3, which are complex cases. Local Rule 31.3
provides that “a case cannot be redesignated as a Track 3 case on motion of a party
unless the party has submitted a proposed scheduling order.” Here, the court did
not specifically order the parties to submit proposed scheduling plans for any of the
cases, and this case was already set for trial, although Dysart and Young were not.
Nevertheless the parties do not dispute that they were working on proposed
scheduling plans for all three cases and intended to present them to the Division 10
judge at some point. However absent either a local rule, a standing order, or a
specific one directing which proposed deadlines should be provided (such as the
typical Order Setting a Rule 16 conference used in this Court),3 I am left to
speculate as to what the plaintiffs meant when they suggested the same date for all
three cases under the heading “Trial.” Plaintiffs assert that they provided these
proposed dates in response to, and in a format proposed by, Johnson & Johnson.
Although Johnson & Johnson could have provided the initial email
communications between the parties in opposition to remand, which could have

3

For example, in this Court the parties are typically instructed to provide “the earliest date by
which this case should reasonably be expected to be ready for trial,” which is not a request for a
specific trial date.

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provided some insight into what the parties meant by a proposed date for “trial,” it
chose not to do so. This absence of evidence works to the detriment of Johnson &
Johnson, which bears the burden of proof in this case.
Here, Johnson & Johnson has not demonstrated by a preponderance of the
evidence that the proposed scheduling plans amount to a request for a joint trial.
Initially, there is the obvious point that plaintiffs submitted three separate
documents (one for each case), with three separate case captions and cause
numbers, to defendants. Apart from this, the mere fact that plaintiffs used
November 29, 2016, as the date under a heading called “Trial” on all three
proposed scheduling plans does not prove that plaintiffs’ “true purpose” was a
“joint assignment in which the inevitable result will be that their cases are tried
jointly.” Atwell, 740 F.3d at 1165. At most, this proves only that plaintiffs
believed that all three cases could be set on the same trial docket, which is entirely
different than suggesting that the cases be tried jointly. Equally likely, however,
these suggested dates signal only that the cases would all be ready for trial as of
that date, not that they should even be set on the same trial docket, let alone tried
jointly or even in the same division, as there is also the possibility that plaintiffs
would ask for reconsideration of the decision to assign Dysart and Young to
Division 10 for trial.

10

To accept Johnson & Johnson’s argument (that this “constituted an express
proposal to commence trial for multiple plaintiffs in Farrar, Dysart, and Young, on
the same date, in the same courtroom, and before the same judge”) would be to
ignore the realities of the state court’s – or for that matter, any court’s – trial
docketing system. I take judicial notice that, for the week of September 28, 2015,
the Division 10 docket shows eight jury trials set to begin on September 28, 2015,
plus a dismissal hearing. For the week of October 13, 2015, eight different jury
trials are set to begin on October 13, 2015, in Division 10. Of course, this does not
mean that all of the cases will actually be reached on those dates, or possibly even
within the week or weeks following. Absent some special setting (and the parties
have not argued that such is the case here), the same docketing system presumably
applies to the November 29, 2016, Division 10 trial docket. This means that even
if the state court had adopted the proposed scheduling plans, at best Ferrar,
Dysart, and Young would be set on November 29, 2016, with an undetermined
number of other cases, any number of which could go to trial interspersed between
these three cases. In short, there can be no presumption that these cases would go
to trial even close together, let alone on a serial basis, even if they were all actually
set on the same trial docket.
Despite this reality, Johnson & Johnson would have me conclude that
plaintiffs’ “true purpose” here was to seek a joint trial of their cases based on
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nothing more than parallel dates submitted in three separate proposed scheduling
plans without any explanation of what these proposed dates actually mean. This I
cannot do. Here, the parties never had a conference with the Division 10 judge
about these proposed scheduling plans because Johnson & Johnson rushed to this
courthouse with its removal papers immediately upon receiving the email from
plaintiffs’ counsel. Had it waited to hear what plaintiffs’ counsel would actually
say at the scheduling conference about the proposed trial dates, there might have
been a record sufficient to conclude that they were in effect seeking a joint trial
like the plaintiffs in Atwell. But this is not the case here. Unlike Atwell, plaintiffs’
counsel has not suggested selecting “bellwether” or exemplar cases to try, which
the Eighth Circuit found persuasive in deciding that plaintiffs really wanted a joint
trial in that case. See Atwell, 740 F.3d at 1165-66.4 To the extent Johnson &
Johnson argues it is possible that plaintiffs will claim in subsequent trials that the
results of the first trial should be given preclusive effect, I agree with this Court’s
decision in Medtronic that such a possibility is insufficient to demonstrate an
implicit proposal for joinder. See Medtronic, 2014 WL 5489301, at *3. As in
Medtronic, if the 237 plaintiffs in Ferrar, Dysart, and Young had instead brought
4

That the state court chooses to coordinate pretrial matters in these and other talc cases by
assigning them to the same Special Master does not amount to a proposal by plaintiffs for joint
trial as required to find a mass action under CAFA. The same is true even if the Special Master
issues identical rulings on identical motions filed in these cases. It bears repeating that cases
coordinated for pretrial proceedings only are expressly excluded from CAFA’s definition of
“mass action.” See 28 U.S.C. § 1332(d)(11)(B)(ii)(IV).

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individual actions against the defendants, “the fact that [236] of them might benefit
from rulings made in the first trial would not support an argument for joinder.” Id.
at *3. Moreover, plaintiffs have made no such arguments here. All we are left
with, then, at most is the fact that plaintiffs think that Ferrar, Dysart, and Young
could be set on the same trial docket. As shown from Division 10’s trial docket,
this does not even come close to a proposal that their claims be tried jointly under
the mass action provision of CAFA. Johnson & Johnson has provided no other
evidence that plaintiffs either explicitly or implicitly requested a joint trial of their
claims, and there is nothing in this record to suggest that this Court has subject
matter jurisdiction over this action.5 See Hendrich v. Medtronic, Inc., 4:14CV1635
AGF, 2014 WL 5783013, at *3 (E.D. Mo. Nov. 5, 2014); Anders v. Medtronic,
Inc., 4:14 CV 1637 ERW, 2014 WL 5320391, at *4 (E.D. Mo. Oct. 17, 2014).
Because this case is brought by fewer than 100 plaintiffs, it is not a mass action
and does not meet the jurisdictional requirements of CAFA. Thus remand is
required.

5

Johnson & Johnson and Imerys Talc have also filed motions to dismiss for lack of personal
jurisdiction and urge me in those motions to decide the issue of personal jurisdiction first.
Defendants acknowledge, as they must, that it is within my discretion to determine whether to
decide issues of personal or subject matter jurisdiction first. I decline to rule on issues of
personal jurisdiction first, as the inquiry regarding subject-matter jurisdiction is not “arduous.”
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 587-88 (1999) (recognizing that where, as here,
the issue of subject matter jurisdiction is straightforward, “expedition and sensitivity to state
courts’ coequal stature should impel the federal court to dispose of that issue first.”). I also note
that the state court considered and denied their motions to dismiss for lack of personal
jurisdiction on May 4, 2015.

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Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion for remand [23] is
granted, and this case is remanded to the 22nd Judicial Circuit Court of the City
of St. Louis, Missouri.
IT IS FURTHER ORDERED that all pending motions are denied without
prejudice to being refiled in state court.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 14th day of September, 2015.

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