Lack of Personal Jurisdiction Leads to Dismissal for Talc Defendants in Meso Matter U.S. District Court, N.D. Alabama, Southern Division, February 25, 2019
ALABAMA — The plaintiff Billie Smith filed suit against the defendants alleging she developed mesothelioma from the use of talcum powder on herself and son from the 1950’s through 2015. The defendants included Cyprus Amax Minerals Company (Amax), Cyprus Mines Corporation (Cyprus), Imerys Tac America Inc. (Imerys) and Johnson and Johnson (J and J). The defendants moved for dismissal based on lack of jurisdiction.
In addition to allegations of negligence, wantoness and breach of warranty, the plaintiff claimed that the Imerys defendants (Amax, Cyprus and Imerys), owned and operated a talc mine in Alpine, Alabama from 1979-2000. Imerys was registered with the state of Alabama to do business but was a Delaware corporation with its principal place of business in California. J and J was a New Jersey corporation and contracted with Cyprus to make cosmetic grade talc from the Windsor mine until 2003. J and J took the position that its separate entity JJCI exclusively sold baby powder after 1979 in Alabama.
The court started its analysis with an overview on personal jurisdiction. General and specific jurisdiction are recognized modes of jurisdiction according to the Supreme Court. A three-part test to determine specific jurisdiction include: 1) that the plaintiff’s claims must arise out of the defendant’s contacts with the forum state 2) the nonresident defendant must purposefully avail itself to the forum state and 3) The defendant may still assert unfairness under “fair play and substantial” justice should the first two prongs be established. The court quickly found that the plaintiff had not established the first prong. Here, Imerys submitted an affidavit from its engineer that Imerys never directly sold talc to J and J and never mined talc in Alabama. The plaintiff unsuccessfully attempted to retrace Imerys’ talc operations to establish the first prong. The court was also not persuaded by the argument that Imerys consented to jurisdiction by registering for business in Alabama because that argument is reserved for general jurisdiction arguments. Here, the plaintiff had already conceded that there is no general jurisdiction. As for J and J, the plaintiff argued that it is subject to specific jurisdiction because of its involvement with baby powder after 1979 and because JJCI’s contacts with Alabama should be imputed to J and J through piercing of the corporate veil. J and J sought a defense by asserting Alabama specific rules of accrual in response. The Court determined that post 1979 conduct relating to J and J’s baby powder does not create personal jurisdiction. The plaintiff continued her argument that J and J’s involvement with talc after 1979 should establish specific jurisdiction. However, the court pointed out that none of the arguments evidenced any J and J conduct within Alabama. The plaintiff also argued that the court should pierce the corporate veil to establish personal jurisdiction of J and J for JJCI’s activity within Alabama. The Court refused to do so because it found J and J and JJCI sufficiently maintained separate corporate entities. Essentially, J and J did not have complete control and domination over JJCI or misused any control to cause harm. Here, J and J utilized another affidavit establishing that and J and J and JJCI separate legal entities.The plaintiff countered with testimony from a prior talc case whereby a representative stated that JJCI had “a leadership team, not a sort of independent board.” According to the court, these “semantics” did not change the” true separation of the corporate entities. In fact, JJCI has been a separate corporate entity since 1979 according to the court. Finally, the plaintiff submitted several exhibits to illustrate that J and J and JJCI had a common branding or marketing scheme. The court was equally unpersuaded as prior precedent has clearly established that such a scheme is not a basis for corporate veil piercing. Consequently, the motions to dismiss were granted.