Johnson & Johnson has lost its bid to transfer 2,400 talcum powder lawsuits from state courts to federal court in Delaware, where supplier Imerys Talc America filed for Chapter 11 bankruptcy earlier this year.

In a July 19 decision first reported by CNBC, U.S. District Judge Maryellen Noreika of the District of Delaware said Johnson & Johnson was “patently forum shopping.” 

The ruling is significant because verdicts against Johnson & Johnson in cases alleging its baby powder caused cancer have come from juries in state courts, not federal courts. Plaintiffs attorney Ted Meadows of Beasley Allen said talc trials alleging Johnson & Johnson's talcum powder products caused ovarian cancer already are scheduled in state courts in Georgia, Pennsylvania and Illinois. 

“Over the past couple of months, the plaintiffs' bar was able to get probably around 1,000 of those cases remanded already, so cases are starting to get back on trial dockets or discovery dockets,” Meadows told ALM. “With this ruling, over the course of the next couple of days, you'll see all removed cases will be remanded back to state court.”

Johnson & Johnson's motion seeking a federal forum for talc cases piggybacked on the bankruptcy petition filed by Imerys, a supplier of talc used in J&J's products.

According to the opinion, Johnson & Johnson argued venue for the roughly 2,400 tort cases should be in the District of Delaware under U.S. Bankruptcy Code § 1334(b), which provides the district court with “related to” jurisdiction over the many state law claims because they affect debtors' estates and that the federal court should not abstain because the talc caseload is “overwhelming nationwide state courts.”

Noreika said Johnson & Johnson did not meet its burden to establish that “related-to” subject matter jurisdiction exists over talc claims currently in state court, and, even if it had, the district court would exercise its discretion to abstain from hearing the tort cases.

She reasoned that the possibility of indemnification provided by J&J to Imerys was not enough to establish “related-to” jurisdiction.

“Here, Johnson & Johnson fails to make a cogent argument supporting a clearly established and accrued right to indemnification or defense from the Debtors, rather than potential third party claims for such,” Noreika said, finding the argument presented by the consumer products company failed to show that Imerys had a vested right to indemnification.

Steven Kortanek, Patrick Jackson and Joseph Argentina Jr. of Drinker Biddle & Reath in Wilmington; along with Diane Sullivan, Marcia Goldstein and Ronit Berkovich of Weil, Gotshal & Manges in New York were listed as attorneys for Johnson & Johnson and Johnson & Johnson Consumer Inc.

“We are disappointed in this decision, which would have streamlined the process for reviewing current cases and increased overall efficiency for all parties involved,” said a spokeswoman for Johnson & Johnson. “Our position that Johnson's Baby Powder is safe and does not cause cancer has not changed. Johnson & Johnson will continue to vigorously defend the safety of Johnson's Baby Powder in the courtroom.”

Among the teams on the side of claimants were the attorneys to the official committee of tort claimants, composed of Natalie Ramsey, Mark Fink, Davis Lee Wright and Laurie Krepto of Robinson & Cole in Wilmington; Michael Enright of Robinson & Cole in Hartford, Connecticut; as well as Rachel Strickland, Jeffrey Korn and Tariq Mundiya of Willkie Farr & Gallagher in  New York.

Lead counsel for the committee could not be immediately reached for comment.

Michael Riccardi contributed to this report.