A Pennsylvania federal judge agreed that Johnson & Johnson had improperly tried to boot claims over allegedly carcinogenic talcum powder out of state court on the day jury selection in the case, which was set to be Philadelphia County’s first talc trial, was set to begin.
U.S. District Judge Michael Baylson rejected arguments from J&J that attorneys for ovarian cancer patient Ellen Kleiner had acted in bad faith by pursuing claims against two affiliates of the Pennsylvania-based Rite Aid Corp. in order to keep the case in state court, only to drop the retailer as a defendant on the night before jury selection.
While J&J alleged that Rite Aid’s presence in the case was nothing but a ruse to defeat diversity jurisdiction, Judge Baylson found that there was substantial evidence that Kleiner’s legal team had seriously pursued claims against the company only to opt to dismiss it as a strategic move after settlement talks proved fruitless.
Kleiner and her husband had been prepared to begin presenting claims to a Philadelphia jury on Aug. 2 in what was set to be the city’s first-ever trial on allegations that J&J talcum powder could be linked to cases of ovarian cancer.
But J&J removed the case to federal court July 29 — the day jury selection was set to begin — after Kleiner agreed to drop her claims against Rite Aid the night before.
Kleiner had claimed that she purchased J&J talc from a handful of Rite Aid locations near her home over the years that she used the product.
Pointing to what it said was scant evidence about Kleiner’s purchase history, J&J has since claimed that Rite Aid was only kept in the case in order to defeat diversity jurisdiction and to keep the case in state court.
Kleiner, meanwhile, said J&J’s removal of the case and its accusations of bad faith were a “desperate step” to avoid having the case go to trial as scheduled in January, after being pushed back a year as a result of the COVID-19 pandemic.
In the end, however, Judge Baylon said that such a delay was not on its own an indicator of bad faith, stating, “A distinction must be drawn between legitimate strategy in high-stakes litigation as opposed to bad faith,” he said. “Plaintiffs may have had a legitimate strategy in pre-trial brinksmanship with Rite Aid — waiting for the pressure of trial to convince Rite Aid to pay to settle. That this strategy did not ultimately succeed does not mean that it was undertaken in bad faith.”