J&J’s partial motion to dismiss Ga. talcum powder suit goes unanswered; proceedings stayed until Judicial Panel decides on possible MDL
Sept. 20, 2016 – San Diego, CA — 
A federal judge in Georgia ordered a stay on a talcum powder case that is set to be considered for consolidation by the Judicial Panel on Multidistrict Litigation this month, but remained silent on Johnson & Johnson’s motion to dismiss some of the suit’s claims.
Back in July, Johnson & Johnson asked a federal judge to dismiss five claims in a lawsuit that alleged its heritage baby powder caused a Georgia woman’s ovarian cancer, saying at least one of the claims was a “legal impossibility.”
In a motion filed July 21 in a district court in Georgia, Johnson & Johnson maintained the plaintiffs had not provided enough evidence to support their claims of fraud against the corporation and argued plaintiffs’ conspiracy claims were a “legal impossibility.”
U.S. District Judge Clay D. Land did not rule on Johnson & Johnson’s motion to dismiss; instead, Judge Land granted the company’s Aug. 8 request to stay all proceedings until the Judicial Panel meets to decide whether or not to consolidate all federal talcum powder lawsuits into a multidistrict litigation.
The Judicial Panel is scheduled to meet regarding the talcum powder suits next week on Sept. 29; also slated for consideration are lawsuits related to Monsanto Company’s weed killer Roundup, French pharmaceutical giant Sanofi’s breast cancer drug Taxotere, and Bristol-Myers Squibb’s antipsychotic Abilify.
A ‘Legal Impossibility’
Johnson & Johnson asked U.S. District Judge Land to throw out more than half of the claims made in a lawsuit filed this past June by plaintiffs Cammy and Michael Marchetti in the U.S. District Court for the Middle District of Georgia.
The lawsuit alleges claims of fraud, fraudulent concealment and conspiracy, among others, against J&J and its wholly owned subsidiary, Johnson & Johnson Consumer Inc..
In regard to the conspiracy claims, Johnson & Johnson argued it is a “legal impossibility” for a company to conspire with itself, just as it is impossible to conspire with oneself, according to the July 21 motion.
Johnson & Johnson also argued it could not conspire with its wholly owned subsidiary, Johnson & Johnson Consumer Inc., citing a 1984 Supreme Court decision that maintained a parent corporation and its wholly owned subsidiary were incapable of conspiring with each other.
J&J: Fraud claims lack ‘sufficient particularity’
In addition to conspiracy claims, Johnson & Johnson asked for plaintiffs’ claims of fraud and fraudulent concealment to be dismissed in its July 21 motion, as well.
J&J argued the plaintiffs failed to identify any specific act of misconduct, instead suggesting plaintiffs provide merely a “possibility of misconduct.”
According to the motion, J&J suggested plaintiffs’ claims of fraud failed to meet the necessary criteria under Rule 9, which requires any party alleging fraud to “state with particularity the circumstances constituting fraud.” This includes providing specific times, places and names of people related to the fraud, showing how the fraud misled the plaintiffs and demonstrating how the defendant benefited from the fraud.
Johnson & Johnson argued the plaintiffs’ allegations of fraud and fraudulent concealment did not satisfy the stringent requisites of Rule 9 and moved the judge to dismiss those claims.
Other claims J&J moved to dismiss in the talcum powder lawsuit include defective and negligent manufacturing, breach of implied warranty, and Georgia Fair Business Practice Act violations.
Judge grants motion to stay
U.S. District Judge Land did not decide on J&J’s partial motion to dismiss, but did grant the company’s Aug. 8 motion to stay all proceedings until the Judicial Panel decides whether or not to consolidate all federal talcum powder lawsuits into one MDL.
If consolidated, all talcum powder lawsuits currently pending in federal court would be sent to one single district court. While each lawsuit in an MDL is heard individually, the earliest verdicts generally have an impact on each new case that is brought forward. Early verdicts in favor of the plaintiffs may prompt Johnson & Johnson to settle the remaining suits instead of allowing each case to go before a jury.
The Judicial Panel on Multidistrict Litigation is scheduled to consider the talcum powder suits on September 29.
