In Re: TALC Product Liability Litigation

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN RE:
C.A. No. Nl 7C-O3-054 TAL
TALC PRODUCT
LIABILITY LITIGATION
Submitted: July 30, 2018
Decided: September 10, 2018
OPINION
Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc. ’s
Motion to Dz'smiss Based on Lack ofPersonal Jurisdiction.
GRANTED.
Defena’ants Johnson & Johnson and Johnson & Johnson Consumer Inc. 's
Motionfor a Protective Order to Quash Jurisdictional Discovery Requests.
GRANTED.
R. Joseph Hrubiec, Esquire and W. Steven Berman, Esquire, NAPOLI SHKOLNIK,
LLC, Wilmington, Delaware. Hunter J. Shkolnik, Esquire, NAPOLI SHKOLNIK,
PLLC, Melville, NeW York. Attorneys for Plaintiffs.
Raeann Warner, Esquire, JACOBS & CRUMPLAR, P.A., Wilmington, Delaware.
Attorney for Plaintiffs.
Michael P. Kelly, Esquire and Daniel J. Brown, Esquire, McCARTER & ENGLISH,
LLP, Wilmington, Delaware. Jessica D. Miller, Esquire, SKADDEN, ARPS,
SLATE, MEAGHER & FLOM, LLP, Washington, D.C. (argued). Attorneys for
Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc. (f/k/a
Johnson & Johnson Consumer Companies, Inc.).
BUTLER, J.
INTRODUCTION
The Court is here presented with a host of Complaints, all to the same effect.
Each alleges that Defendants, in various capacities, Were involved in the production,
marketing, and sale of talc, specifically in the form of baby powder. It is alleged
that this product, advertised as smooth and soothing to babies, causes cancer in adult
Women. While multiple Defendants are named, only Johnson & Johnson and its
subsidiary, Johnson & Johnson Consumer Inc. (f/k/a Johnson & Johnson Consumer
Companies, Inc.) (collectively, “JNJ”), have moved to dismiss the claims brought
by nonresident Plaintiffs for lack of personal jurisdiction JNJ also moves for a
protective order, seeking to foreclose the nonresident Plaintiffs from taking
“jurisdictional discovery.” After careful consideration, the Court finds that it is
Without personal jurisdiction over JNJ as to the claims of the nonresident Plaintiffs.
The Court further finds that the nonresident Plaintiffs have not set forth a plausible
basis to believe that limited jurisdictional discovery Will establish the requisite
jurisdiction, and the Court Will therefore also grant JNJ’s Motion for a Protective
Order.
BACKGROUND
These complaints allege that women who use talcum powder in their perineal
area over a period of time contracted ovarian cancer. Talc was manufactured,
marketed, and sold by the defendants as baby powder.
Lawsuits making similar allegations have been filed in multiple jurisdictions
across the United States. l In one such case in Missouri, Johnson & Johnson moved
to dismiss a claim brought by a nonresident of Missouri on personal jurisdiction
grounds. The motion to dismiss was denied by the trial court. But after a jury
awarded the plaintiff $72 million in damages, a Missouri appellate court reversed
the trial court’s personal jurisdiction ruling, effectively wiping out the verdict.2
Over 200 talc lawsuits have been filed in Delaware. The Plaintiffs in these
suits hail from all over the country.3 Two law firms represent all of the Plaintiffs in
l See Tiffany Hsu, Risk on All Sides as 4,800 Women Sue Over Johnson’s Baby Powder and
Cancer, N.Y. Times (Sept. 28, 2017), illlp.~_~':t“/w\-v\-\-'.iwliliies.com;"£lll?fU‘J!ES»’busincssz"|ohnson-
iind-ioIm.~;mi-bailw»lalc.'un'\-|)owclcr-Iaiw:»‘uitz~'.hlm|; Wornan Gets $417 Million Verdict From
Johnson & Johnson in Baby Powder Cancer Suit, NBCNews.com (Aug. 22, 2017),
Ii| l|)s:t_fi\-'\\-".-v.nbcnews.co\n!hcaill|ifhci-i|1Ii-no\-v.~';;’\-voman-gcl.~';-=l l 7~million-vci'tlici-iohnson~
iohnsol1~baby-po\-\»dcr-ciinccr-ii?‘~}¢l??``1; In re Johnson & Johnson Talcum Powder Cases, No.
BC628228, 2017 WL 4780572 (Cal. Super. Ct. Oct. 20, 2017).
2 See Estate ofFox v. Johnson & Johnson, 539 S.W.3d 48 (Mo. Ct. App. 2017), rev ’g and vacating
2016 WL 799325 (Feb. 26, 2016), reh ’g and/or transfer denied (Dec. 19, 2017), transfer
denied (Mar. 6, 2018).
3 See, e.g., Compl. 11 1, Weldon v. Johnson & Johnson, C.A. No. N18C-01-137 (Del. Super. filed
Jan. 12, 2018) (Trans. I.D. 61563601) (Michigan); Compl. 11 1, Chappell v. Johnson & Johnson,
C.A. No. N17C-12-294 (Del. Super. filed Dec. 21, 2017) (Trans. I.D. 61494847) (New York);
Compl. 1[ 1, Anderson v. Johnson & Johnson, C.A. No. N17C-10-338 (Del. Super. filed Oct. 26,
2017) (Trans. I.D. 61288868) (Louisiana); Compl. 11 1, Chubb v. Johnson & Johnson, C.A. No.
3
these Delaware cases. The Complaints are substantively quite similar in their factual
allegations and legal theories.
A. Plaintiffs’ Allegations
Plaintiffs allege that JNJ and the other named Defendants produced, marketed,
sold, and shipped talc-based products over a number of years. They claim that this
production and marketing persisted despite convincing evidence developed by
studies that talc was associated with ovarian cancer when used by women on the
perineum. Plaintiffs allege that JNJ and the other Defendants, acting individually,
collectively and through industry councils and related lobbying efforts, mounted a
concerted effort to avoid warning the public of the dangers associated with the use
of talc. According to Plaintiffs, JNJ continued its sales and marketing campaign of
talc products despite being explicitly advised of its dangers from several creditable
sources.
B. JNJ’s Motion to Dismiss
JNJ has not filed an answer to the Complaint, arguing instead that the Court
should dismiss the Complaints of nonresident plaintiffs because the Court has
neither “general” nor “specific” jurisdiction over JNJ. Plaintiffs also served JNJ
N17C-04-102 (Del. Super. filed Apr. 11, 2017) (Trans. I.D. 60455438) (Tennessee); Compl. 11 1,
Gordon v. Johnson & Johnson, C.A. No. N16C-10-237 (Del. Super. filed Oct. 28, 2016) (Trans.
I.D. 59762614) (North Carolina); Compl. 11 1, Worth v. Johnson & Johnson, C.A. No. N16C-10-
239 (Del. Super. filed Oct. 28, 2016) (Trans. I.D. 59762787) (Mississippi).
4
with a number of “jurisdictional discovery” requests intended to support the Court’s
exercise of personal jurisdiction over JNJ. Rather than responding to the discovery,
JNJ has filed a Motion for a Protective Order, seeking exemption from responding
to the discovery demand because, as JNJ sees it, discovery will not yield facts that
would support jurisdiction in Delaware.
C. Procedural History
At the Court’s request, Plaintiffs’ counsel first filed their opposition to JNJ’s
Motion for a Protective Order. While this issue was under consideration, the United
States Supreme Court handed down its decision in Bristol-Myers Squibb Co. v.
Superior Court of California, San Francz'sco Coanty.4 The Court then invited the
parties to file supplementary briefs on the impact of that decision.
After reviewing the briefing at that stage, it became clear that the jurisdictional
discovery issue was completely intertwined with the question of jurisdiction itself.
Plaintiffs then obliged the Court’s request to respond to the Motion to Dismiss as
well.5
4137 S. Ct. 1773 (U.S.) 2017.
5 Of the roughly 200 cases that have been filed in Delaware, a scant few_ approximately 12_-
originally named an additional entity, OMJ Pharmaceuticals, lnc. (“OMJ”). This entity is a
Johnson & Johnson subsidiary that is incorporated in Delaware. Shortly after it was named as a
Defendant for the first time in 2016, OMJ moved to dismiss the case against it, but not for lack of
jurisdiction. Rather, OMJ sought dismissal on grounds that it had simply been improperly named.
Plaintiffs did not respond to the motion to dismiss. Much later, after the filing of many additional
5
STANDARD OF REVIEW
Allegations in a complaint may be made broadly and need not describe the
basis upon which the Court has jurisdiction.6 But on a motion to dismiss for lack of
personal jurisdiction under Superior Court Civil Rule 12(b)(2), the plaintiff bears the
burden to make out a prima facie case establishing jurisdiction over a nonresident
defendant.7 A prima facie case requires the “production of enough evidence to allow
the fact-trier to infer the fact at issue and rule in the party’s favor.”8 The burden of
establishing a defendant’s amenability to suit is not merely restricted to the
allegations contained in the complaint.9 Rather, extra-pleading material may be used
to supplement the complaint and establish jurisdiction.l° Therefore, in considering
Complaints and Amended Complaints, OMJ was ultimately named as a Defendant in a larger
number of the cases that are currently pending before the Court.
As discussed below, because OMJ is incorporated in Delaware, it is subject to the general
jurisdiction of the Court. OMJ’s arguments for dismissal are fundamentally different from JNJ’s
jurisdictional arguments, and the Court believes that disposition of one is not dependent upon
disposition of the other. The Court will therefore address OMJ’s pending motion to dismiss only
after it is fully briefed.
6 See Super. Ct. Civ. R. 8(a).
7 Republic Bus. Credit, LLC v. Metro Design USA, LLC, 2016 WL 3640349, at *4 (Del. Super.
June 29, 2016) (citing Crescent/Mach 1 Partners, L.P. v. Turner, 846 A.2d 963, 974 (Del. Ch.
2000)).
8 Baier v. Upper New York Inv. Co, 2018 WL 1791996, at *5 (Del. Ch. Apr. 16, 2018) (citing
Prz``ma facie case, Black’s Law Dz``ctionary (10th ed. 2014)).
9 Yu v. GSM Nation, LLC, 2018 WL 2272708, at *5 (Del. Super. Apr. 24, 2018) (citing Hart
Holding Co. v. Drexel Burnharn Lambert Inc., 593 A.2d 535, 538-39 (Del. Ch. 1991)).
10 Id. (citing Hart Holdz'ng Co., 593 A.2d at 53 8-39.)
6
a motion to dismiss under Rule 12(b)(2), the Court is not bound by the pleadings and
may consider other matters such as affidavits and briefs of the parties in making
determinations regarding personal jurisdiction.1l
Ordinarily, when jurisdiction is questioned, the Court will permit
jurisdictional discovery.12 But when the record plainly shows that such discovery
will yield nothing to substantiate jurisdiction in the forum, discovery will be
foreclosed.13 A plaintiff is not entitled to jurisdictional discovery where the assertion
of personal jurisdiction “lacks the minimal level of plausibility needed to permit
discovery to go forward.”14
ANALYSIS
I. JNJ’s Motion to Dismiss Based on Lack of Personal Jurisdiction
The due process concerns relating to the law of personal jurisdiction have
been evolving in recent years. Because of the importance of this evolution in this
analysis, a close examination of the recent jurisprudence is warranted.
11 See Crescent/Mach 1 Partners, L.P. , 846 A.2d at 974 (Del. Ch. 2000); Haisfz``eld v. Cruver, 1994
WL 497868, at *3 (Del. Ch. Aug. 25, 1994).
12 Hart Holding Co., 593 A.2d at 539.
13 Id.; see also T ell v. Roman Catholic Bishops of Diocese of Allentown, 2010 WL 1691199, at *7
(Del. Super. Apr. 26, 2010) (“A court may also deny jurisdictional discovery when it is apparent
that the requested discovery will add nothing to the jurisdictional analysis.”).
14 In re Asbestos Litig. , 2016 WL 7404547, at *2 (Del. Super. Oct. 17, 2016) (quoting Hart Holding
Co., 593 A.2d at 539) (internal brackets omitted).
7
A. The United States Supreme Court’s Recent Rulings on Personal
Jurisdiction
In 2011, the United States Supreme Court decided Goodyear Danlop Tires
Operations, S.A. v. Brown.15 Goodyear was a suit in a North Carolina court filed by
North Carolina residents who were injured in a bus accident in France, alleging a
failure of tires manufactured by an Ohio company and sold by its European
subsidiaries The European subsidiaries of Goodyear moved to dismiss for want of
personal jurisdiction; Goodyear USA did not join in the motion.
The Court differentiated between general jurisdiction_jurisdiction unrelated
to the conduct complained of_and specific jurisdiction--jurisdiction specifically
arising out of the conduct complained of. The Court held that general jurisdiction
could only be had where a defendant is “essentially at home” in the forum state.16
While a corporation is certainly “at home” in its place of incorporation or its
principal place of business,17 the Court did not further refine what “continuous and
systematic activities” would qualify a corporation as being “essentially at home” in
a forum and thus appropriate for the assertion of general jurisdiction. But the Court
did specifically repudiate any “stream of commerce” theory of general jurisdiction:
“Flow of a manufacturer’s products into the forum . . . may bolster an
15 564 U.s. 915 (2011).
161¢1. at 919.
171d. at 924.
affiliation germane to specific jurisdiction. . . But ties serving to bolster the
exercise of specific jurisdiction do not warrant a determination that, based on
those ties, the forum has general jurisdiction over a defendant.”18
On the other hand, specific jurisdiction is limited to adjudication of “issues
deriving from, or connected with, the very controversy that establishes
jurisdiction.”19 The only substantial relationship of North Carolina to the
controversy was that the plaintiffs resided there. According to the Court, this was
an insufficient basis to support specific jurisdiction.
Then in 2014, the Court decided two personal jurisdiction cases: Daimler AG
v. Bauman20 and Walden v. Fiore.21
In Daimler, Argentinian residents brought tort claims in a California court,
alleging that an Argentinian Daimler subsidiary (MB Argentina) conspired with
Argentinian security forces to kidnap and kill employees of MB Argentina. The
plaintiffs named only the Daimler parent compan -- Daimler, AG -- not l\/[B
Argentina or its U.S. subsidiary, MBUSA. No plaintiff resided in California and all
of the tortious activities occurred in Argentina. Nevertheless, plaintiffs argued that
181d. at 927.
19 Ia’. at 919 (citing Arthur T. von Mehren & Donald T. Trautman, Jurisdiction to Adjudz'cate.' A
SuggestedAnalysis, 79 Harv. L. Rev. 1121, 1136 (1966)).
20 571 U.s. 117 (2014).
21 571 U.S. 277 (2014).
because MBUSA sold many automobiles in California and had a regional office
there, those activities should be imputed to the parent, Daimler AG, which, it was
argued, used agents to conduct substantial business in California. The Supreme
Court rejected this argument.
Daimler gave the Court an opportunity to review and expand on what it had
said previously about general jurisdiction in Goodyear:
Goodyear did not hold that a corporation may be subject to general
jurisdiction only in a forum where it is incorporated or has its principal
place of business; it simply typed those places paradigm all-purpose
forums. Plaintiffs would have us look beyond the exemplar
bases Goodyear identified and approve the exercise of general
jurisdiction in every State in which a corporation “engages in a
substantial, continuous, and systematic course of business.” That
formulation, we hold, is unacceptably grasping.22
Although MBUSA had multiple facilities and sales in California, those
activities were not enough to support general jurisdiction over the parent company
under an agency theory. Neither Daimler nor MBUSA were incorporated or
headquartered in California. According to the Court, the Ninth Circuit erred in
concluding “that Daimler, even with MBUSA’s contacts attributed to it, was at home
in California, and hence subject to suit there on claims by foreign plaintiffs having
nothing to do with anything that occurred in or had its principal impact in
22 Daimler, 571 U.S. at 137-38 (citation omitted).
10
California.”23
Less than two months after Daimler, the Court decided Walden v. Fiore.24 In
Walden, a DEA agent working at a Georgia airport seized a large amount of cash
from a couple that was passing through Georgia on their way home to Nevada. The
couple eventually got their money back, but nonetheless filed suit against the agent
in federal court in Nevada. The Supreme Court held that Nevada could not assert
jurisdiction over the Georgia DEA agent.
The Court further clarified the proper focus of specific jurisdiction:
For a State to exercise jurisdiction consistent with due process, the
defendant’s suit-related conduct must create a substantial connection
with the forum State First, the relationship must arise out of contacts
that the “defendant himself’ creates with the forum State Second,
our “minimum contacts” analysis looks to the defendant’s contacts with
the forum State itself, not the defendant’s contacts with persons who
reside there [And, finally,] [d]ue process requires that a defendant
be haled into court in a forum State based on his own affiliation with
the State, not based on the “random, fortuitous, or attenuated” contacts
he makes by interacting with other persons affiliated with the State.”25
The Court made clear that for purposes of determining specific jurisdiction, “it is the
defendant, not the plaintiff or third parties, who must create contacts with the forum
State.”26
22 Id. a1139.
24 571 U.S. 277 (2014).
25 Walden, 571 U.S. at 284-86 (intemal citations omitted).
26 Id. at 291.
11
This brings us to the Supreme Court’s June 2017 ruling in Bristol-Myers
Squibb C0. v. Superior Court of California, San Francisco Coanty.27 But first, a
brief history may be helpful.
More than 600 plaintiffs filed suit in California against Bristol-Myers Squibb
(“Bristol-Myers”), alleging injuries caused by ingestion of a Bristol-Myers drug
called Plavix. Only a few of the plaintiffs were California residents. Bristol-Myers
is a Delaware corporation with headquarters in New York. Bristol-Myers moved to
dismiss the complaints of the nonresident plaintiffs, arguing that California courts
had no jurisdiction over the tort claims of nonresident plaintiffs
In the United States Supreme Court, the majority first held that the California
Supreme Court correctly concluded that there could be no general jurisdiction
because, despite Bristol-Myers’s activities in California, it was incorporated in
Delaware and headquartered in New York with a major research and development
presence in New Jersey. The fact that Bristol-Myers sold a lot of Plavix in California
27137 S. Ct. 1773 (2017).
12
and had a large presence there via a distribution contract with McKesson was
insufficient to move the Court to consider Bristol-Myers “at home” there.
As to specific jurisdiction, the Court, citing to Goodyear, stated that the
Court’s settled jurisdictional principles controlled the case:
In order for a court to exercise specific jurisdiction over a claim, there
must be an “affiliation between the forum and the underlying
controversy, principally, [an] activity or an occurrence that takes place
in the forum State.” When there is no such connection, specific
jurisdiction is lacking regardless of the extent of a defendant’s
unconnected activities in the State. (“[E]ven regularly occurring sales
of a product in a State do not justify the exercise of jurisdiction over a
claim unrelated to those sales”).28
The Court rejected the California Supreme Court’s reasoning that specific
jurisdiction could be relaxed or mollified by a defendant’s activities in the forum
that were unrelated to the conduct giving rise to the complaint.29 It likewise rejected
the notion that the similarity between the California residents’ complaints and the
nonresident complaints should factor into the determination of specific jurisdiction,
B. General Jurisdiction: JNJ is not “at home” in Delaware
The “paradigmatic” forum for general jurisdiction is the place of
incorporation or the principal place of business. Delaware is neither to JNJ. It is
28 137 S. Ct. at 1781 (internal citations omitted).
29 Id (“Nor is it sufficient_or even relevant_that [Bristol-Myers] conducted research in
California on matters unrelated to Plavix. What is needed-and what is missing here-is a
connection between the forum and the specific claims at issue.”).
13
certainly true that the Supreme Court left open the possibility that there could be
other fora that were “exceptional”30 and therefore “almost like home.” But if the
term “exceptional” was left only ill-defined, the Court has made clear that merely
engaging in a “substantial, continuous and systematic course of business” unrelated
to the lawsuit is not exceptional.31
In this case, Plaintiffs appended the annual statements of Johnson &
Johnson_a company with some 127,000 employees and worldwide reach-but
have pointed to nothing therein that would suggest that the company has such
“exceptional” ties to Delaware as to warrant a finding that it is “at home” here.
Plaintiffs argue that because JNJ “intentionally distributed talcum products in
Delaware as part of a national distribution plan,” Plaintiffs may establish jurisdiction
under a “stream of commerce” theory.32 But we have seen that the Supreme Court
has repudiated any “stream of commerce” theory to support general jurisdiction,
Nor can the Court agree that Johnson & Johnson’s creation of other
subsidiaries in Delaware, unrelated to this lawsuit, somehow infects Johnson &
Johnson and its non-Delaware subsidiaries with general jurisdiction in Delaware.
General jurisdiction is heavily related to how the defendant has chosen to organize
30 Daimler AG v. Bauman, 571 U.S. 117, 139 n.l9 (2014).
31Id. at 137-38.
32 Pls.’ Opp. to Def.’s Mot. for Protective Order, Trans. I.D. 60414353, at 8.
14
itself and where it has chosen for its principal place of business. Other Defendants
named in the caption chose to organize in Delaware, JNJ did not. Plaintiffs’
arguments favoring general jurisdiction in Delaware are unpersuasive
C. Specific Jurisdiction
We know that an analysis of specific jurisdiction requires inquiry into whether
the lawsuit “aris[es] out of or relate[s] to the [corporation’s] contacts with the
forum.”33 To this end, we are further instructed that a defendant’s unrelated forum
activity is just that_unrelated to the jurisdictional determination From the
decisions above, we are directed to consider a defendant’s forum-related activity and
the relationship of that activity to the underlying controversy.
It is worth recalling that the dispute before the Court is not a class action.
Rather, each lawsuit represents the claims of individual Plaintiffs from various
states. So what may be true of a Delaware Plaintiff may not be true of an Ohio
Plaintiff. JNJ does not dispute specific jurisdiction in this Court for the claims
brought by Delaware residents, whose injuries allegedly resulted from INJ’s forum-
33 Genuine Parts Co. v. Cepec, 137 A.3d 123, 130 (Del. 2016) (quoting Helicopteros Nacl``onales
de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984)).
15
related activities. lt is only the nonresident Plaintiffs’ Complaints that are vulnerable
to JNJ’s Motion to Dismiss.
Plaintiffs must distinguish the Bristol-Myers Squibb case, and to this task they
have put forth great effort. Unfortunately, some of that effort predated the U.S.
Supreme Court’s Opinion and predicted-incorrectly_-that the California Supreme
Court’s ruling finding jurisdiction in California would ultimately prevail. In any
event, there are a few arguments that have potentially survived. The Court will
address these arguments in the sections that follow.
1. JNJ’s Sales and Marketing of Talc in Delaware
Plaintiffs allege “upon information and belief’ that JNJ “marketed and
distributed talc to hospitals to patients with newborn babies including Delaware
hospitals and clinics and may have also utilized Delaware newspapers and
periodicals for marketing and sales purposes.”34 For purposes of this ruling, the
Court must, and does, assume the truth of these allegations.
The Court accepts that forum-specific activities such as sales and marketing
in Delaware, to Delawareans, may form a basis for a Delawarean to make a claim
against JNJ. But as to a nonresident Plaintiff, even if a defendant’s activity is forum-
specific, it is not germane to the nonresident Plaintiff s claim, The nonresident
34 Pls.’ Suppl. Mem. Opposing Mot. for Protective Order in light of Brz'stol-Myers Squibb, Trans.
I.D. 61068513, at 9.
16
presumably was subj ect to sales and marketing forces in her own jurisdiction, not in
Delaware. Thus, JNJ’s sales and marketing of products in Delaware to resident
Plaintiffs is not forum-related conduct by JNJ that is related to the specific claims at
issue_the claims being asserted by nonresident Plaintiffs.
lt is thus incorrect to say that JNJ’s sales and marketing in Delaware, or
representations made in connection therewith, are forum-related activities that give
rise to the liability sued on, at least as far as the nonresident Plaintiffs are concerned.
If nonresident Plaintiffs are to establish specific jurisdiction over JNJ as to their
claims, they gain little by referencing JNJ’s sales and marketing of products in
Delaware to Delaware residents.
2. T he Confidentiality Agreement
Plaintiffs point to an unspecified confidentiality agreement between
Defendant Luzenac (now Imerys Talc America, Inc.) and JNJ. According to
Plaintiffs, the agreement included a provision stating that it would be governed by
Delaware law.35 However, this is not a lawsuit concerning a breach of the
confidentiality agreement. The fact that an unrelated contract is governed by
Delaware law is, in every sense, conduct unrelated to the specific claims asserted in
the Complaints.
35 ld-
17
3. The Testing of Talc Samples by DuPont
The only forum-related conduct concerning the sale and distribution of talc to
nonresident Plaintiffs is an allegation that in 1974, JNJ “began sending talc samples
for analysis to DuPont in Wilmington, Delaware, which is no doubt a consequence
of the initial reports associating talc with ovarian cancer.”36
To persuade the Court that the talc testing done by DuPont is somehow
relevant to the jurisdictional analysis, Plaintiffs direct the Court to an Illinois case
against a drug manufacturer in which plaintiffs alleged birth defects caused by
ingestion of the psychiatric drug Paxil during pregnancy. An Illinois appellate court
found the drug manufacturer’s clinical trials in Illinois to be sufficient forum-related
conduct to vest Illinois with jurisdiction over the manufacturer as to the claims of
nonresident plaintiffs concerning the safety of the drug involved in the clinical
trials.37 Because, in that court’s view, the nonresident plaintiffs’ claims arose from
acts or omissions during the clinical trials and the resulting inadequate warning
labels, the nonresident plaintiffs had made a prima facie showing of jurisdiction_
i.e., plaintiffs had alleged a sufficient connection between the drug manufacturer,
the forum, and the specific claims at issue.
36 Pls.’ Suppl. Mem. Addressing Personal Jurisdiction for Defs., Trans. I.D. 61813834, at 13.
37 MM. ex rel. Meyers v. GlaxoSmithKline LLC, 61 N.E.3d 1026 (Ill. App. Ct.), appeal denied sub
nom. M.M. v. GlaxoSmithKline LLC, 65 N.E.3d 842 (Ill. 2016), and cert. denied, 138 S. Ct. 64(2017).
18
Such a result may be justified given the drug manufacturer’s deployment of
Illinois citizens in its clinical trials and the Illinois Court’s view of the centrality of
those clinical trials to the nonresident plaintiffs’ complaints. Of similar effect are
two trial court decisions in California involving another allegedly harmful drug that
was subject to clinical trials in California.38
All of this is of largely academic interest here, because talc is not a
pharmaceutical drug subject to clinical trials. Rather, it appears that some quantity
of talc Was shipped to a lab in Delaware, and DuPont analyzed it_perhaps for its
purity or foreign substance content_and DuPont presumably informed JNJ of its
findings. Even if the Court were inclined to agree with the California and Illinois
courts that conducting clinical trials in a jurisdiction established a sufficient nexus
between the forum and the specific claims at issue to vest the Court with specific
jurisdiction, it does not follow that analyzing talc privately in a lab in Delaware
would confer specific jurisdiction over JNJ as to the nonresident Plaintiffs’ claims
in a Delaware courtroom. Assuming this was indeed some forum-related conduct
directed by JNJ, it falls far short of the connection required between the forum and
the specific claims at issue_i.e., those claims being asserted by each nonresident
38 Dubose v. Bristol-Myers Squibb Co., 2017 WL 2775034 (N.D. Cal. June 27, 2017); Cortina v.
Bristol-Myers Squibb Co., 2017 WL 2793808 (N.D. Cal. June 27, 2017). If it appears that there
may be a “clinical trial” basis for specific jurisdiction developing in certain jurisdictions, that may
very well be the case, or it may simply be that no appellate court has tackled the question just yet.
19
Plaintiff.
The relevant JNJ conduct that forms the basis of nonresident Plaintiffs’ claims
against JNJ is the continued production, packaging, marketing, and sale of talc
despite knowing that it was harmful to women, and the concerted efforts that JNJ
allegedly engaged in to prevent the public from finding out about the dangers
associated with the use of talc in JNJ’s products. lfJNJ had talc analyzed by DuPont
and learned or confirmed by the analysis that the talc was indeed dangerous, that
evidence would surely be damaging to JNJ. But that knowledge did not advance the
sale or marketing of talc to the public. It was not even a link in the production chain
of talc’s eventual sale to the public. Plaintiffs have not alleged any fact linking
DuPont’s testing of talc samples in Delaware to the nonresident Plaintiffs’ claims.
The bare fact that JNJ contracted with DuPont to have some kind of testing
performed on talc samples in a lab in Delaware is not enough to vest Delaware courts
with jurisdiction over JNJ as to the nonresident Plaintiffs’ claims.39
Sending talc samples to DuPont for analysis is, in the Court’s view, at best
tangentially related to the claims in this lawsuit in that they both involve talc.
Moreover, the fact that the situs of the analysis was a lab in Delaware is at best
39 See Bristol-Myers Squibb, 137 S. Ct. at 1783 (“The bare fact that [Bristol-Meyers] contracted
with a California distributor [to distribute Plavix] is not enough to establish personal jurisdiction
in the State.”).
20
happenstance; it could have been a lab anywhere, and it was not the sort of
purposeful availment of the privilege of conducting business in a state that would
lead JNJ to “reasonably anticipate being hauled into court there.”40 Thus, assuming
Plaintiffs’ allegations of forum-related lab analysis of talc are true, the Court does
not find that conduct to be sufficiently significant or related to the specific claims at
issue in the lawsuits before the Court to justify the exercise of specific jurisdiction
over JNJ.
4. T he Parent-Subsidiary, Principal-Agent, and
Coconspirator Arguments
Plaintiffs make additional claims related to the relationship between JNJ and
other forum Defendants, including parent-subsidiary, principal-agent, and
coconspirators All three use a similar, “attributive” approach to establishing
jurisdiction.
a. JN.I’s Delaware Subsidiaries
Plaintiffs argue that nearly 50% of Johnson & Johnson’s 75 American
subsidiaries are incorporated in Delaware and such ties to the forum militate in favor
of a finding of specific jurisdiction here. In addition, Plaintiffs urge that JNJ
transacts business in Delaware and may employ sales representatives or distributors
here. Both of these arguments are essentially foreclosed by Bristol-Myers Squibb,
40 World- Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
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where the defendant had substantial business ties to California, none of them related
to the claims brought by the nonresident plaintiffs Indeed, Bristol-Myers Squibb
teaches that these unrelated relationships to the forum do not form a basis for the
exercise of specific jurisdiction,
b. Agency Theory
Plaintiffs argue that JNJ “contracted with distributors in Delaware to
disseminate its talcum products, thus establishing jurisdiction because Defendants
contracted to supply goods in Delaware.”41 We need not labor long over this
argument. JNJ does not contest jurisdiction in Delaware as to resident claims The
residents’ claims are intimately involved with JNJ’s conduct in the forum, thus
satisfying specific jurisdiction, So whether JNJ acted as principal or through agents
is largely irrelevant to jurisdiction as to resident Plaintiffs. As to the nonresident
Plaintiffs, however, it is equally irrelevant how JNJ distributed goods to Delaware
Plaintiffs with the opposite result: regardless whether JNJ marketed to Delaware as
a principal or through an agent, its forum-related conduct did not cause injury to
nonresident Plaintiffs.
c. Conspiracy Theory
Plaintiffs allege that “both the Delaware suppliers and the foreign sellers of
41 Pls’ Opp. to Def.’s Mot. for Protective Order, Trans. I.D. 60414353, at ll.
22
talc engaged in a civil conspiracy.”42 Just how far the conspiracy theory of
jurisdiction goes after the Supreme Court’s rulings in Daimler, Walden, and Bristol-
Myers Squibb is not an answer that jumps off the page when looking at the state of
the case law in this area. Indeed, whether the doctrine of conspiracy jurisdiction has
even survived the Supreme Court’s recent rulings on jurisdiction has been
questioned.43
In a pre-Daimler case, the conspiracy theory of jurisdiction was recognized
by the Delaware Supreme Court in Istituto Bancario Italiano SpA v. Hunter
Engineering Company. 44 There, the Court recognized that this type of jurisdiction
could be found where there was alleged (1) a conspiracy, (2) of which the defendant
was a member, (3) a substantial act or effect in furtherance of the conspiracy that
occurred in the forum, (4) that the defendant knew or had reason to know of the act
in the forum or that acts outside the forum would have an effect in the forum, and
(5) that the act in, or effect on, the forum was a direct and foreseeable result of the
42 Id. at 13.
43 See Cockrum v. Donald.[ T ramp for President, Inc. , _ F.Supp.3d. _ , _ , 2018 WL 3250445,
at *19-20 (D.D.C. July 3, 2018); In re Dental Supplies Antitrust Litig., 2017 WL 4217115(E.D.N.Y. Sept. 20, 2017); Reading the Tea Leaves of Early Post-Bristol-Myers Personal
Jurisdiction Decisions, [18 CLASS 1131] Class Action Litig. Rep. (BNA) 2-3 (Dec. 8, 2017).
44 449 A.2d 210 (Del. 1982). While much of the litigation over conspiracy or agency jurisdiction
has centered itself in the Delaware Court of Chancery, the doctrine has been recognized in the
Superior Court as well.
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conduct in furtherance of the conspiracy.45
In order to harmonize the conspiracy theory of jurisdiction with the United
States Supreme Court’s restructuring of personal jurisdiction, we must presume that
the requirement that the conspiracy accomplish a “substantial act or effect” in the
forum correlates with the Supreme Court’s mandate that the defendant engage in
forum-related conduct that is directly related to the specific claims at issue in the
lawsuit.46
Here, Plaintiffs make no effort at all to articulate a substantial act committed
in furtherance of the alleged conspiracy that was carried out in Delaware. Nor does
even a generous reading of the Complaints and supplemental briefing remotely
suggest one.
The conspiracy theory of jurisdiction is narrowly construed,47 and Plaintiffs
must allege specific facts tending to show that JNJ was a conspirator in acts in
43 Id. at 225.
40 To the extent Plaintiffs would argue that the conspiracy only need have had an effect on
Delaware Plaintiffs_such as by sales of talc in the forum_the Court rejects the notion that the
effect on resident Plaintiffs satisfies the “act or effect” needed to vest the Court with specific
jurisdiction over nonresident Plaintiffs’ claims Such a rule would essentially render the forum-
related activity requirement meaningless and vitiate the strictures of specific jurisdiction. While
effects may satisfy a resident Plaintiffs burden, an effect on a forum Plaintiff has nothing
whatsoever to do with the effects on nonresident Plaintiffs.
47 Werner v. Miller Tech. Mgmt., L.P., 831 A.2d 318, 330 (Del. Ch. 2003) (citing Computer
People, Inc. v. Best Int’l Grp., Inc., 1999 WL 288119, at ?“5 (Del. Ch. Apr. 27, 1~999));
Crescent/Mach IPartners, L.P. v. Turner, 846 A.2d 963, 976 (Del. Ch. 2000).
24
Delaware and such pleadings must be more than “a facile way for [P]laintiffs to
circumvent the minimum contacts requirement.”48
While Plaintiffs’ Complaints are long on the history of talc and its regulation,
or lack thereof, the studies showing its dangers to women, and the Defendants’
efforts to repudiate or suppress the evidence, they are short on references to
Delaware. Not only is JNJ not mentioned in connection with conspiratorial acts in
Delaware, no other Defendant is either. Incorporation in Delaware serves only to
establish Delaware as “home” for purposes of general jurisdiction; it is essentially
irrelevant for purposes of specific jurisdiction and does nothing to advance the
nonresident Plaintiffs’ claims in that respect.
II. JNJ’s Motion for a Protective Order to Quash Jurisdictional
Discovery Requests
Upon a defendant’s motion to dismiss under Rule 12(b)(2), a plaintiff is on
notice that personal jurisdiction is contested and the plaintiff thereupon has a duty
to present facts or arguments demonstrating a basis to hold the defendant to account
in the forum,
Here, Plaintiffs have filed numerous pleadings with the Court, both in
response to JNJ’s Motion for a Protective Order to preclude jurisdictional discovery
and to INJ’s Motion to Dismiss the nonresident Plaintiff Complaints under Rule
48 Compu¢er People, 1999 wL 288119, at *6.
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12(b)(2) for want of personal jurisdiction Despite multiple briefs from able counsel
for the Plaintiffs, the allegations supporting personal jurisdiction remain anemic at
best. While the Court appreciates Plaintiffs’ many and creative arguments the Court
must also recognize that other than a passing reference to some talc samples being
analyzed by DuPont in Delaware, there is essentially no connection between JNJ,
the forum, and the nonresident Plaintiffs’ claims as alleged in the pleadings and
supplemental briefing.
Plaintiffs’ counsel are well schooled in mass tort litigation and the pleadings
needed to establish jurisdiction. In their briefing, counsel have specifically
referenced information obtained under a protective order in the MDL, which
indicates that Plaintiffs have access to that discovery, The Court believes that
Plaintiffs’ pleadings and supplemental briefing have presented the best case they
could for establishing jurisdiction in Delaware. The Court has, as it must, given
Plaintiffs every benefit of any doubt, construing all of the pleadings and
supplemental materials in a light most favorable to sustaining Plaintiffs’
jurisdictional claims and permitting discovery to go forward.
The question becomes: are Plaintiffs’ claims to personal jurisdiction in
Delaware lacking because the facts are simply not there, or are they lacking because
26
the Plaintiffs have not been afforded discovery in light of JNJ’s Motion for a
Protective f)rder?
First, we know Plaintiffs will be unable to prove any facts that will support
general jurisdiction in Delaware. As noted by Justice Breyer in Daimler, general
jurisdiction is a straightforward inquiry in the post-Daimler world.49 Delaware is
not the place of incorporation or principal place of business for JNJ. There is not a
fact that Plaintiffs could somehow pull out of discovery that would have a realistic
chance of changing these realities General jurisdiction over JNJ is simply not
available to Plaintiffs.
As to specific jurisdiction, certainly JNJ has engaged in much activity in the
forum unrelated to these talc lawsuits And certainly JNJ’s acknowledged forum
related activity (sales and marketing of talc to Delawareans) is activity related to or
arising out of the resident Plaintiffs’ claims of toxic results The nonresident
Plaintiffs’ real difficulty is finding facts to support the argument that JNJ engaged
in some “substantial” activity in the forum that would establish the requisite causal
link in the chain from such forum-related activity to not only the subject matter of
the lawsuits but to the specific claims by the nonresident plaintiffs here. When we
consider the Supreme Court’s admonition that a defendant’s forum activity be
49 Daimler AG v. Baurnan, 571 U.S. 117, 139 n.20 (2014) (“[I]t is hard to see why much in the
way of discovery would be needed to determine where a corporation is at home.”).
27
“based on his own affiliation with the State, not based on the ‘random, fortuitous, or
attenuated’ contacts he makes by interacting with other persons affiliated with the
State,”50 we must conclude that such facts are not alleged in any of the papers
submitted to the Court.
The Court acknowledges the apparent brewing tension in the case law with
respect to forum-related activity that will satisfy the “arising from or relating to”
requirement for specific jurisdiction, On the one hand, the Courts in California and
Illinois found sufficient forum-related contact when a drug maker used the forum to
conduct clinical trials for a drug later used by nonresident plaintiffs that allegedly
caused them injury outside the forum.51 On the other hand, at least one District Court
in Missouri found the forum-related activity insufficient in a talc case despite
allegations that Johnson & Johnson controlled a manufacturer in Missouri who, at
JNJ’s direction, discarded warning labels on talc packaging shipped to the plant.52
It is understood that at the initial pleading stage, there is much about the
dispute that a plaintiff may surmise but does not yet know. As a result, a Plaintiff s
50 Walden v. Fiore, 571 U.S. 277, 286 (2014) (quoting Burger King Corp. v. Rudzewicz, 471 U.S.
462, 475 (1985)).
51 Dubose v. Bristol-Myers Squibb Co., 2017 WL 2775034 (N.D. Cal. June 27, 2017); Cortina v.
Bristol-Myers Squibb Co., 2017 WL 2793808 (N.D. Cal. June 27, 2017); MM ex rel. Meyers v.
GlaxoSmithKline LLC, 61 N.E.3d 1026 (Ill. App. Ct.), appeal denied sub nom. MM. v.
GlaxoSmithKline LLC, 65 N.E.3d 842 (Ill. 2016), and cert. denied, 138 S. Ct. 64 (2017).
52 Jinright v. Johnson & Johnson, Inc., 2017 WL 3731317, at *4 (E.D. Mo. Aug. 30, 2017).
28
allegations of jurisdiction need only be minimally plausible.53 And our discovery
rules are intended to help the parties flesh out their suspicions But we must also
eschew discovery “fishing expeditions” that unfairly put defendants to time and
expense while offering virtually no possibility of a resolution finding jurisdiction.54
Even taking the position advocated by Plaintiffs_that clinical trials would
satisfy the “arising from or related to” requirement_the Court is not satisfied that
Plaintiffs have made any allegation regarding JNJ’s conduct in the forum “arising
from or related to” the specific claims at issue that would merit jurisdictional
discovery. Indeed, Plaintiffs’ extensive briefing is essentially limited to the legal
arguments of whether stream of commerce or perhaps an agency or conspiracy
theory of jurisdiction should apply-not the essential facts Without those facts,
Plaintiffs have not made the requisite showing, minimal as it may be, to warrant
jurisdictional discovery. Plaintiffs burden is low but is it not nothing. Plaintiffs
must, at the very least, chart out a course that sets forth a plausible theory by which
this Court could obtain jurisdiction over JNJ. Plaintiffs are unable to articulate any
discoverable facts that, if true, would support a finding of jurisdiction in the forum,
And if not clear enough already, this is not a routine tort case. As discussed
53 see ln re Asbesros Litig., 2016 wL 7404547, at *2 (Del. super. oci. 17, 2016),
54 See In re Asbestos Litig., 2012 WL 1409397, at *2 (Del. Super. Jan. 10, 2012) (denying
additional jurisdictional discovery to further a claim of general jurisdiction).
29
above, talc litigation is ongoing in any number of jurisdictions not the least of which
is the MDL in New Jersey. Extensive discovery has already been requested and
disgorged in support of those cases At oral argument, Plaintiffs’ counsel was quick
to point out that much of that discovery is subject to a protective order. But counsel
did not urge that such protective orders kept them from revealing what evidence
establishes that Delaware has some kind of significant relationship to the nonresident
Plaintiffs’ claims Indeed, as discussed above, Plaintiffs did put forward some
evidence from the MDL, a fact which strongly suggests that more was not put
forward because more does not exist. lt would seem obvious that at a minimum, if
such evidence did exist, Plaintiffs would have sought relief from any confidentiality
agreement or protective order.
The Court cannot agree that jurisdictional discovery is an automatic right of
Plaintiffs. Plaintiffs have not made the requisite showing, minimal as it may be, to
warrant jurisdictional discovery. Because Plaintiffs have failed to articulate any
discoverable facts that, if true, would support a finding of jurisdiction in the forum,
the Court can come to only one conclusion-the discovery sought by Plaintiffs will
add nothing to the jurisdictional analysis55 Under such circumstances the Court
will grant JNJ’s Motion for a Protective Order.
55 See T ell v. Roman Catholic Bishops of Diocese of Allentown, 2010 WL 1691199, at *7 (Del.
Super. Apr. 26, 2010).
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§_(_MIM
JNJ’s Motion to Dismiss the nonresident Plaintiffs’ claims for lack of personal
jurisdiction is GRANTED. The nonresident Plaintiffs’ claims against JNJ are
therefore DISMISSED.
JNJ’s Motion for a Protective Order to Quash Jurisdictional Discovery
Requests is GRANTED.
IT IS SO ORDERED.
a
~ _____ \
Judge Charle§‘E\,Mler_)
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