Plaintiffs suing over claims linking talcum powder to ovarian cancer failed in a bid to consolidate the cases in federal court in southern Illinois.
Nearly a dozen cases will be transferred to federal court in New Jersey, the home of a number of defendants, including Johnson & Johnson, the Judicial Panel on Multidistrict Litigation (MDL) ruled Tuesday.
Nine of the plaintiffs wanted the cases sent to the U.S. District Court for the Southern District of Illinois, while others suing argued for them to be dealt with individually.
Don Barrett, attorney for one of the plaintiffs, argued that the “the Southern District of Illinois is the transportation hub of the country” with various hotels and restaurants, according to a report in the journal Law360.
J&J and other defendants asked for the cases to be consolidated in New Jersey, or in the Western District of Oklahoma. The defendants argued that a case is pending in Oklahoma, and that its current case load would allow it to handle the MDL.
Apart from Johnson & Johnson, the other defendants are Sanofi US, Imerys Talc, Valeant Pharmaceuticals and Chattem.
The plaintiffs claim products such as Johnson & Johnson Baby Powder, Shower to Shower and Gold Bond caused ovarian cancer.
State courts in St. Louis delivered two major verdicts against J&J this year, including a $72 million award.
Travis Akin, executive director of Illinois Lawsuit Abuse Watch, said he is not sure why some of the plaintiffs wanted to consolidate the cases in southern Illinois.
But he said that “perhaps a motivating factor” might be because of the “close proximity” to St. Louis. “Juries are going to tend to be the same,” Akin told the Record.
He added, “I do not know that the federal court here in southern Illinois is necessarily pro-plaintiff or pro-defendant. In general federal courts tend to do their job.”
However, Akin said he is not surprised the lawyers wanted the cases heard in southern Illinois, even if it is federal court.
Madison and St. Clair counties have consistently been declared “judicial hellholes” by the American Tort Reform Association, which accuses those courts of being over friendly to plaintiff lawyers, particularly in class actions.
More generally, Akin said of the talc litigation that the “science in these cases is iffy to say the least.”
“A cottage industry has grown up to go after Johnson & Johnson, even though there is no direct link between talc use and ovarian cancer,” Akin argued. “Attorneys are going all out to find people to file these lawsuits.”
In arguments over where the MDL should be heard, attorneys for some of the plaintiffs wanted to keep them individualized, arguing some of the women have less than “a couple of years” to live.
“The only ways women such as this get their day in court is if there are multiple courts to deal with (the lawsuits),” attorney Henry G. Garrard told the Judicial Panel.
Garrard also argued consolidation was inappropriate because the only major issue left in the case deals with individual causation, as general causation has been litigated three times in court, according to Law360.
The lawsuits allege that J&J and others misrepresented the safety and reliability of the company's talcum powder products and claim violations of state consumer protection laws, negligence, failure to warn, wrongful death and other causes of action, the journal reported.