A New York federal judge has sent back to state court a lawsuit by a woman alleging Johnson & Johnson’s baby powder she bought at Rite Aid, Walgreens and CVS stores contained asbestos that gave her cancer, finding the New York-based defendants were not wrongly named in the suit.
U.S. District Judge Jed S. Rakoff remanded Amy Resnik’s suit, which names J&J, Rite Aid of New York Inc., Walgreen Eastern Co. Inc., CVS Pharmacy Inc., Duane Reade Inc. and Kolmar Laboratories Inc. as defendants, after J&J had removed it earlier this year.
Resnik alleges she bought the baby powder and other products sold by J&J at the stores between 1960 and 2016, and that Kolmar “processed, compounded, tested and distributed” the talcum powder used by J&J in the 1980s.
Johnson & Johnson removed the case to federal court, alleging New York Rite Aid, Walgreens and Kolmar were fraudulently joined and that Resnik’s allegations don’t go far enough to link their conduct with her cancer diagnosis by failing to specify which products she purchased from which stores, and how she relied on the defendants’ advertising.
Judge Rakoff, however, said that pleading standards under New York state law are less strict than under federal law, and that Resnik’s allegations stating that each of the retailers engaged in the distribution of the products and advertised them as safe for human use are enough to survive dismissal under state law.
Regarding Kolmar, J&J in its argument had pointed to deposition testimony indicating Kolmar only processed a limited amount of talc, and it was unknown whether its products were ever released, but the judge said anything outside of Resnik’s complaint could not be considered in this analysis.