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Friday, December 6, 2019

Yandle remands J&J baby powder case back to St. Clair against argument Walgreens added to defeat diversity


By John Sammon | Oct 30, 2018


BELLEVILLE – The U.S. District Court for the Southern District of Illinois on Oct. 15 remanded a case back to the 20th Judicial Circuit Court of St. Clair County saying the federal court lacked jurisdiction in a woman’s alleged wrongful death from the use of Johnson & Johnson baby powder.

Plaintiff Colleen Cadigan originally sued Johnson & Johnson under the Illinois Wrongful Death Act in St. Clair County as executor for Elizabeth Driscoll. A resident of Smithton, Driscoll claimed to have used the baby powder for more than 40 years and purchased the product from two Walgreens stores in Belleville. 

On Feb 25, 2015, Driscoll was diagnosed with ovarian cancer and died from the disease on Sept. 4, 2016.

In addition to Walgreens and Johnson & Johnson, Imerys Talc America, a San Jose-based supplier of talc powder to J&J, was also named as a defendant in the suit.

Walgreens has its corporate headquarters in Illinois.

Cadigan alleged in the suit that Driscoll’s long-time application of the Johnson & Johnson baby powder and a product for adults called Shower to Shower in the vaginal area caused the disease and brought about her death.

The lawsuit cited studies showing an alleged link between the use of talc in baby powder and the development of ovarian cancer.

“In 1993, a U.S. National Toxicology Study published a study on non-asbestiform talc and found clear evidence of carcinogenic activity,” the suit alleged. “Talc was found to be a carcinogen with or without the presence of asbestos-like fibers.”

The plaintiff contended the defendants had a duty to know and warn and failed to do so concerning the hazards of using J&J products.

The suit asserted 18 causes of action including alleged negligence and breach of warranty in that the defendants had marketed the baby powder products as pure and safe for use. In addition the suit alleged “conspiracy,” the defendants knowingly conspired to market a dangerous substance even though they knew it was potentially deadly, and also engaged in negligent misrepresentation of the product.

Attorneys for Johnson & Johnson with the consent of Imerys Talc America on Oct. 5 filed for removal of the case to a multi-district litigation (MDL) court, a federal court designed to handle complex litigation. The defendant asked the U.S. District Court for the Southern District of Illinois to stay all proceedings in the case pending transfer.

On Oct. 8, the plaintiff moved to remand the case to state court.

A civil action in a state court may be removed to a federal court if the district court has jurisdiction, if the amount in controversy exceeds $75,000 and if there is “diversity,” none of the opposing parties are citizens of the same state.

The Southern Illinois District Court concluded the diversity did not exist in the case because Walgreens and the plaintiff Driscoll were both citizens of Illinois. While attorneys for J&J admitted that complete diversity was lacking, they contended Walgreens had been added to the suit to defeat diversity jurisdiction.

“The J&J defendants contended Walgreens was just a ‘pass-through’ retailer and the plaintiff’s claims against it failed under ‘innocent seller’ laws,” District Judge Staci Yandle wrote. “Under Illinois law all entities in a chain of distribution for an allegedly defective product (baby powder) are subject to strict liability in tort.”

Yandle concluded J&J’s arguments ignored the existence of the plaintiff’s negligence and breach of warranties claims against Walgreens, which were not subject to dismissal under Illinois law.

“The plaintiff alleges that based on studies going back to the 1960’s, Walgreens knew or should have known that the use of talcum powder in the perineal (vaginal) area significantly increased the risk of ovarian cancer,” she wrote.

Yandle determined the plaintiff’s case against Walgreens for negligence and breach of warranty was viable and that Walgreens would remain in the lawsuit as a defendant even if it has a valid defense against the liability claim.         

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Twentieth Judicial Circuit of IllinoisJohnson & Johnson

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