Johnson & Johnson's baby powder. Photo Credit: Flickr

A Los Angeles judge has tentatively cleared the way for a Johnson & Johnson motion to toss out about 100 out-of-state plaintiffs from the coordinated talcum powder litigation in California in light of the U.S. Supreme Court's jurisdictional decision last year in Bristol-Myers Squibb v. Superior Court of California.

At a hearing on Thursday, Los Angeles Superior Court Judge Maren Nelson tentatively rejected a motion by lead plaintiffs attorneys Mark Robinson and Helen Zukin to conduct discovery to address jurisdiction questions they face under Bristol-Myers, which made it harder for out-of-state plaintiffs to sue out-of-state defendants in state courts. In court, Johnson & Johnson attorney G. Gregg Webb, a San Francisco partner at Shook, Hardy & Bacon, told the judge that about 600 plaintiffs in the California cases had already voluntarily dismissed their claims since the decision in Bristol-Myers.

On Monday, Nelson allowed New Jersey-based Johnson & Johnson to file motions to quash by June 29, and set a discovery hearing for Sept. 21. She also allowed the plaintiffs to amend their master complaint to include facts from discovery. But she made it clear that she didn't want the jurisdictional battle to slow down the claims of the remaining 430 plaintiffs, indicating that she would like to “tee up some bellwether trials” for 2019.

“I really would like us to get past this jurisdictional issue as promptly as possible,” she said. “It does not affect what now seems to be the majority of the cases that are left.”

Bristol-Myers has had a big impact on cases in Missouri alleging that Johnson & Johnson's baby powder and Shower to Shower products caused women to get ovarian cancer. The high court's June 19 decision found that plaintiffs who sued over injuries attributed to blood thinner Plavix had failed to establish specific jurisdiction in California, where they brought their case, because there wasn't enough of a link between their claims and the Golden State. The high court also found that a California distributor, McKesson Corp., didn't have enough connection to the claims.

The ruling prompted a mistrial in a case in Missouri, followed by reversal of a $72 million verdict. Rex Burlison, the St. Louis judge who has overseen all the Missouri trials, allowed plaintiffs to pursue discovery of a Missouri talc manufacturer in light of Bristol-Myers.

Now, plaintiffs want to do the same thing in California, where they insist there is a local connection to named defendants. They insist that Johnson & Johnson has “engaged in relevant acts together” with California-based Imerys Talc America Inc., another defendant in the cases, for which it is “derivatively liable.”

“Here, unlike the plaintiffs in BMS, the talc used in the subject products originated from a California source—Imerys Talc America Inc., a California corporation,” they wrote.

In a court filing last month, Webb and another Johnson & Johnson attorney, Michael Zellers, a partner at Tucker Ellis in Los Angeles, called the discovery request a “dilatory tactic to postpone the dismissal of their claims.”

They cited several rulings by federal judges in Missouri that granted motions under Bristol-Myers to dismiss several plaintiffs in Johnson & Johnson baby powder and Essure birth control cases against Bayer. In those cases, judges found that clinical trials and marketing activities in Missouri didn't establish specific jurisdiction.

But Robinson, of Robinson Calcagnie Inc. in Newport Beach and Zukin, of Kiesel Law in Beverly Hills insisted that the connection to Imerys goes much deeper.

“These relevant acts and occurrences, particularly those in concert with Imerys, go far beyond any of the business activities in the cited cases,” they wrote in a reply. “They are directly related to the nonresident plaintiffs' claims and were causal factors in the harm they suffered.”

The first California talc trial involved a California woman whose lawsuit jumped ahead of the other cases due to her declining health. A Los Angeles Superior Court jury awarded a record $417 million last year. But Nelson vacated the award after finding “serious misconduct” on the part of the jury and insufficient evidence.