ST. LOUIS — U.S. Magistrate Judge John M. Bodenhausen could not be convinced by Johnson & Johnson's federal subject-matter jurisdiction argument in talcum powder-related litigation involving 74 individuals from 32 states.
Earlier this month, Bodenhausen granted the plaintiffs' motion to remand Raymond Schmitz v. Johnson & Jonson et al to St. Louis City Circuit Court for further proceedings, finding that the defendants' argument that the landmark ruling in Bristol-Myers Squibb v. Superior Court of California and the resulting abrupt mistrial in Valerie Swann et al. v. Johnson & Johnson were not sufficient because removal was "untimely on its face."
"Even assuming... the outcomes in Bristol-Meyers and Swann were sufficient to trigger a new 30-day removal period for some cases, this case would still not be eligible for removal due to the one-year-from-commencement limitation under 28 U.S.C. §1446(c)," Bodenhausen wrote in a decision filed on Aug. 10. "The case was initiated in September 2015. Removal was not attempted until June 2017."
St. Louis City Circuit Court, or the 22nd Circuit Court, has been a magnet for plaintiffs from all over the country who claim that their use of talcum powder caused ovarian cancer.
Jury verdicts in St. Louis, which are currently under challenge, have totaled more than $300 million.
In his ruling, Bodenhausen also found the defendants' argument that a bad-faith exception to a one-year limitation should apply to be "unavailing."
Johnson & Johnson had claimed that the plaintiffs' bad faith was "apparent" in the "continued filing by the same plaintiffs' counsel of sprawling lawsuits involving out-of-state plaintiffs in Missouri state court in an attempt to concentrate the overwhelming majority of talcum powder lawsuits in a single, plaintiff-friendly state court based on a theory of personal jurisdiction that lacked merit from the outset and has not been expressly rejected by the Supreme Court in Bristol-Myers."
Bodenhausen noted a number of other recent decisions by other courts in the Eastern District of Missouri to remand similar cases on the same basis, writing that, "the state of the law before Bristol Myers was that such multi-state groupings were permissible."
"It is difficult to say that a party has acted in bad faith when the action was consistent with the jurisprudence then in force," Bodenhausen said in the decision. "[The] defendants operated under the same reasoning in choosing not to attempt removal at the start of the case because such an act would have been futile under the case law of the time."