U.S. District Court for the Eastern District of Louisiana, April 22, 2021
In this asbestos action, Lynne Roy (the decedent) contended that she developed mesothelioma after using various talc products throughout her life. She filed a complaint in the Civil District Court for the Parish of Orleans where she alleged several state law based claims, including strict liability, negligence, professional vendor liability, failure to warn, breach of warranty, defective design, and civil conspiracy. The complaint only named one in-state defendant, K&B. With regard to K&B, the complaint specifically alleged that “upon information and belief, the K&B Defendant repackaged, rebranded and/or sold the Johnson & Johnson Defendants’ talcum powder products and sold them as its own, which Plaintiff purchased from K&B pharmacy stores in Orleans Parish.”
Following her passing, the decedent’s two daughters (Melissa Kaiser and Melanie Roy) brought survival and wrongful death actions. During her deposition on November 10, 2020, Kaiser testified that her mother did not use the K&B brand talc powder. After the deposition, Johnson & Johnson (J&J) removed this matter to federal court.
Thereafter, the plaintiffs moved to remand this matter to state court. The plaintiffs argued that K&B is properly joined as a defendant, and that the complaint alleges sufficient facts against K&B. Plaintiffs also argued that J&J’s removal is untimely. Specifically, the plaintiffs asserted that if they could not state a cause of action against K&B, J&J should have removed the matter after the decedent’s deposition in May 2020. J&J contended that K&B was improperly joined as there were no facts that would support a cause of action against K&B. In support, J&J submitted two affidavits which “refute the allegations in the state-court Petition that K&B labeled and repackaged other talc products and sold them as its own.” J&J also believed that the motion was timely as Kaiser’s deposition was the first paper that made “unequivocally clear and certain” that the decedent did not use a K&B product.
With regard to the improper joinder issue, the court undertook a Rule 12(b)(6) analysis to determine whether there was a “reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant.” The court set forth that the determinative question “is whether there is no possibility of recovery by Plaintiffs against K&B.” In order to do so, the court turned to the 1988 Louisiana Products Liability Act. After examining the pleadings and the plaintiffs’ evidence, the court found that there was sufficient evidence to show that “sufficient evidence by which a fact-finder could find that K&B was a professional vendor,” and that K&B “should have known of the defects in the talc powder.”
J&J argued that the court should not consider the additional evidence such as studies submitted by the plaintiffs in connection with their motion. Instead, J&J contended that the court should only consider affidavits and testimony in support of an improper joinder argument, as the court understood J&J’s argument to be. The court noted that not only was such evidence considered in other Fifth Circuit cases, but that J&J also submitted evidence that would fall outside of their supposed standard. Further, Fifth Circuit case law also addressed the issue of improper joinder as it relates to K&B. In Rousseau, the court determined that K&B was properly joined. Specifically, the Rousseau court was unable to “conclude with any degree of certainty that Plaintiff has nopossibility of recovery against K&B.” Further, the affidavits of K&B officers did not persuade the Rousseau court to reach a different conclusion as “the plaintiff would require discovery to flesh out claims dealing with facts from decades past.”
Since the court determined that K&B was properly joined, the court did not address the timeliness issue. Therefore, K&B was properly joined and no diversity jurisdiction existed. Thus, the plaintiffs’ motion to remand was granted.