Talc Case Remanded as Defendant Fails to Establish Improper Joinder United States District Court, E.D. Louisiana, May 17, 2018
LOUISIANA — The plaintiff, Marilyn Rousseau, sued defendants Johnson & Johnson (J&J) and K&B Louisiana Corporation (d/b/a Rite Aid Corporation), among others, claiming that her mesothelioma was caused in part by her use of their allegedly asbestos-contaminated talc products. Plaintiff, who was a Louisiana citizen, originally brought the suit in state court in Orleans Parish. J&J removed the case to federal court, claiming diversity jurisdiction and contending that K&B Louisiana, the only non-diverse defendant entity, was improperly joined.
Noting that the improper joinder doctrine constituted a narrow exception to complete diversity with a heavy burden of proof on the removing party, the court granted the plaintiff’s motion to remand. “Improper joinder can be established in two ways: 1) actual fraud in the pleading of jurisdictional facts, or 2) the inability of the plaintiff to establish a cause of action against the non-diverse party in state court.” Focusing on the second prong, J&J had claimed that the factual allegations of the plaintiff’s petition specific to K&B Louisiana were not sufficient to establish professional vendor liability under Louisiana law, which holds that the duties of a seller found to be a professional vendor are the same as a manufacturer, who is charged with knowledge of the potential defects in its products. In support of its decision to remand, the court disclaimed these “technical deficiencies,” and pointed to the need for discovery for the plaintiff to develop her claims against K&B Louisiana, and others given that the facts leading to the plaintiff’s suit occurred forty to seventy years ago. As it could not conclude with any certainty that the plaintiff had no possibility of recovery against K&B Louisiana, the case was remanded to state court.