Plaintiff Can Serve Jurisdictional Disclosure Demands Regarding Potential Successor Liability in Talc Case New York Supreme Court for New York County, February 20, 2018
NEW YORK — Plaintiff Richard Arazosa alleged that he was injured as a result of exposure to asbestos-containing cosmetic talcum powder products. Defendant Imerys SA filed a pre-answer motion to dismiss claims against it, arguing a lack of jurisdiction given its existence as a French holding company with no assets or presence in the United States. The plaintiff asked the Special Master for permission to serve jurisdictional disclosure demands on Imerys SA with the intent of proving that Imerys SA was the successor to Talco e Grafite, an Italian company that mined talc to be used in cosmetic talcum powder products. The Special Master granted the request. Imerys SA contended that the disclosure demands were stayed by their motion to dismiss, and they further objected to the Special Master’s recommendation as unduly burdensome and overbroad.
The court found that Imerys SA’s motion to dismiss did not stay disclosures, noting that the Case Management Order (CMO) authorized the Special Master to supervise disclosures, and rule on disclosure disputes. The court further found that Imerys SA did not timely move to vacate the Special Master’s recommendations per the CMO, but still allowed Imerys SA’s objections to the jurisdictional disclosure demands, which the plaintiff subsequently attempted to narrow. The court finally noted that any questions related to parent-subsidiary liability are not within the scope of the Special Master’s ruling. “The rationale for this limitation is that parent liability for a subsidiary is much more difficult to establish than successor liability for a predecessor and therefore much less likely to form the basis for jurisdiction over a parent premised on jurisdiction over a subsidiary than jurisdiction over a successor premised on jurisdiction over a predecessor,” the court explained. “A successor corporation may be liable for its predecessor’s conduct if the successor assumed that liability, the predecessor consolidated or merged with the successor, the successor was a mere continuation of the predecessor, or the predecessor sold its asserts to the successor to escape the predecessor’s obligations. A parent corporation is not liable for its subsidiary’s conduct unless the parent corporation has intervened directly in the subsidiary’s management in disregard of its separate corporate form.”