Estrada v. Johnson & Johnson et al
Filing
24
TRANSFER ORDER re: pldg. ( 1 in MDL No. 2738) Transferring 10 action(s) to Judge Freda L. Wolfson in the District of New Jersey.Signed by Judge Sarah S. Vance, Chair, PANEL ON M ULTIDISTRICT LITIGATION, on 10/4/2016. Associated Cases: MDL No. 2738, CAE/2:14-cv-01051, CAN/3:16-cv-03838, ILN/1:16-cv-06847, ILS/3:14-cv-00600, ILS/3:16-cv-00741, LAM/3:16-cv-00447, MSN/1:16-cv-00121, NJ/3:14-cv-07079, OKW/5:16-cv-00620, PAE/2:16-cv-02866, TNM/1:16-cv-00055 (dn)
UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION
IN RE: JOHNSON & JOHNSON TALCUM POWDER
PRODUCTS MARKETING, SALES PRACTICES
AND PRODUCTS LIABILITY LITIGATION
MDL No. 2738
TRANSFER ORDER
Before the Panel:* Plaintiff in the Lumas action listed on Schedule A and pending in the
Southern District of Illinois moves under 28 U.S.C. § 1407 to centralize pretrial proceedings in this
litigation in the Southern District of Illinois. This litigation consists of eleven actions pending in ten
districts, as listed on Schedule A. The Panel also has been notified of forty-three related actions
pending in twenty-three districts.1
Plaintiffs in nine actions and potential tag-along actions support centralization in the
Southern District of Illinois. Plaintiffs in four of these actions alternatively propose centralization
in the Southern District of Mississippi, while plaintiffs in two of the actions alternatively suggest
centralization in the Middle District of Louisiana. Defendants Johnson & Johnson, Johnson &
Johnson Consumer Companies, Inc., Imerys Talc America, Inc., and Personal Care Products Council
propose centralization in either the District of New Jersey or the Western District of Oklahoma.
Plaintiffs in twelve actions and potential tag-along actions oppose centralization.2 Should
the Panel centralize this litigation, plaintiffs in ten of these actions variously suggest that the Panel
select either the Southern District of Illinois or the Middle District of Georgia as the transferee
district.
On the basis of the papers filed and hearing session held, we find that these actions involve
common questions of fact, and that centralization in the District of New Jersey will serve the
convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.
The majority of the actions are personal injury or wrongful death actions brought by plaintiffs who
allege that they or their decedents developed ovarian or uterine cancer following perineal application
*
One or more Panel members who could be members of the putative classes in this docket
have renounced their participation in these classes and have participated in the decision.
1
These and any other related actions are potential tag-along actions. See Panel Rules 1.1(h),
7.1, and 7.2.
2
Counsel for plaintiffs in the Western District of Oklahoma Robb action informed the Panel
at oral argument that the Robb plaintiffs now oppose centralization.
-2of Johnson & Johnson’s talcum powder products (namely, Johnson’s Baby Powder and Shower to
Shower body powder). Two of the actions are consumer class actions brought on behalf of putative
classes of women who allege that defendants deceptively marketed the talcum powder products for
feminine hygienic use without disclosing talc’s carcinogenic properties. Regardless of the type of
claims involved, all the actions share common factual questions arising out of allegations that
perineal use of Johnson & Johnson’s talcum powder products can cause ovarian or uterine cancer
in women. All the actions involve factual questions relating to the risk of cancer posed by talc and
talc-based body powders, whether the defendants knew or should have known of this alleged risk,
and whether defendants provided adequate instructions and warnings with respect to the products.
These common factual issues are sufficiently complex to merit centralized treatment. Centralization
will eliminate duplicative discovery; prevent inconsistent pretrial rulings (including with respect to
discovery, privilege, and Daubert motion practice); and conserve the resources of the parties, their
counsel, and the judiciary.
The plaintiffs opposing the motion raise a number of arguments against centralization, but
none is persuasive. For instance, the opposing plaintiffs argue that centralization is unnecessary
because thousands of claims against Johnson & Johnson relating to its talc-based body powders have
been pending in state courts for several years and, thus, the common discovery in these actions is
already complete. It is telling, though, that many of the state court actions are themselves proceeding
in coordinated or consolidated fashion in their respective state courts.3 To the extent that common
discovery obtained in the state court actions can be used in the federal litigation, it is far more
efficient to determine the applicability of this discovery once for all the federal actions rather than
multiple times in multiple districts. Similarly, regardless of the advanced procedural postures of
some of the state court actions, rulings on dispositive and Daubert motions will be necessary in the
federal actions. It is far more convenient for the parties and witnesses and more efficient for the
courts to litigate such pretrial motions one time for all the federal actions. And, coordination with
the state court actions will be enhanced if only one federal judge needs to communicate with the
multiple state court judges overseeing the talcum powder litigation. See In re Plavix Mktg., Sales
Practices & Prods. Liab. Litig. (No. II), 923 F. Supp. 2d 1376, 1378-79 (J.P.M.L. 2013) (observing
that centralization “likely will facilitate coordination among all courts with Plavix cases, simply
because there will now be only one federal judge handling most or all federal Plavix litigation.”).
The pendency of the state court litigation thus demonstrates the need for centralization of this
litigation.
The opposing plaintiffs also argue that unique factual questions regarding plaintiffs will
overshadow any common questions of fact, particularly in light of the discovery already conducted
in the state court litigation. We do not agree. Though the actions may present individual issues, this
generally is true of product liability cases. See In re Power Morcellator Prods. Liab. Litig., 140 F.
Supp. 3d 1351, 1353 (J.P.M.L. 2015). These actions will involve common factual questions
3
Indeed, the California state court recently took steps to create a coordinated proceeding for
the many actions pending in that state.
-3regarding the alleged carcinogenic properties of talc and defendants’ knowledge of those properties.
Discovery and pretrial motion practice will overlap with respect to these common issues.
The opposing plaintiffs insist that informal cooperation among the parties and coordination
among the courts is preferable to centralization. To the contrary, there are now fifty-four related
actions (including the potential tag-along actions) in this litigation, pending in more than twenty
districts. Coordination among so many courts and parties does not appear practicable in this
instance, particularly given the limited overlap among plaintiffs’ counsel.
We likewise are not convinced that the actions are too procedurally disparate to benefit from
centralization. All but three of the actions were filed within the past six months and are in their
infancy. The two putative class actions have been pending since 2014, but have not advanced
significantly past the pleading stage due to multiple rounds of dismissal motions. Only the Chakalos
action pending in the District of New Jersey has advanced significantly, and even there discovery
disputes remain and dispositive motions have yet to be filed. We are sympathetic to arguments
regarding the potential prejudice that delay could have on plaintiffs whose illness has reached an
advanced stage. Such arguments, though, are best addressed by the transferee judge. If the
transferee judge determines that Chakalos or any other transferred action either is sufficiently
advanced and ready for trial or, for other reasons, will no longer benefit from inclusion in the
centralized proceedings, then we encourage her to promptly suggest that the Panel remand such
action to the transferor court. See Panel Rule 10.1(b).
We select the District of New Jersey as the appropriate transferee district for this litigation.
The district is a convenient and accessible forum for this nationwide litigation, and is located in close
proximity to a large number of state court actions pending in New Jersey and other jurisdictions on
the East Coast of the United States. As Johnson & Johnson is headquartered in New Jersey, relevant
evidence and witnesses likely are located in the District of New Jersey. The Honorable Freda L.
Wolfson is an experienced MDL judge with the willingness and ability to manage this litigation
efficiently. Further, as Judge Wolfson is presiding over the most procedurally-advanced action
(Chakalos), she is well situated to structure this litigation so as to minimize delay and avoid
unnecessary duplication of discovery and motion practice.
-4IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside
the District of New Jersey are transferred to the District of New Jersey and, with the consent of that
court, assigned to the Honorable Freda L. Wolfson for coordinated or consolidated pretrial
proceedings.
PANEL ON MULTIDISTRICT LITIGATION
__________________________________________
Sarah S. Vance
Chair
Marjorie O. Rendell
Lewis A. Kaplan
R. David Proctor
Charles R. Breyer
Ellen Segal Huvelle
Catherine D. Perry
IN RE: JOHNSON & JOHNSON TALCUM POWDER
PRODUCTS MARKETING, SALES PRACTICES
AND PRODUCTS LIABILITY LITIGATION
MDL No. 2738
SCHEDULE A
Eastern District of California
ESTRADA v. JOHNSON & JOHNSON, ET AL., C.A. No. 2:14-01051
Northern District of California
GOULD v. JOHNSON & JOHNSON, ET AL., C.A. No. 3:16-03838
Northern District of Illinois
MUSGROVE v. JOHNSON & JOHNSON, ET AL., C.A. No. 1:16-06847
Southern District of Illinois
MIHALICH v. JOHNSON & JOHNSON, ET AL., C.A. No. 3:14-00600
LUMAS v. JOHNSON & JOHNSON, ET AL., C.A. No. 3:16-00741
Middle District of Louisiana
ANDERSON v. JOHNSON & JOHNSON, ET AL., C.A. No. 3:16-00447
Northern District of Mississippi
RICH-WILLIAMS v. JOHNSON & JOHNSON, ET AL., C.A. No. 1:16-00121
District of New Jersey
CHAKALOS v. JOHNSON & JOHNSON, ET AL., C.A. No. 3:14-07079
Western District of Oklahoma
ROBB, ET AL. v. JOHNSON & JOHNSON, ET AL., C.A. No. 5:16-00620
Eastern District of Pennsylvania
BORS v. JOHNSON & JOHNSON, ET AL., C.A. No. 2:16-02866
Middle District of Tennessee
KUHN v. JOHNSON & JOHNSON, ET AL., C.A. No. 1:16-00055
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