Talc Meso Case Remanded After Fraudulent Joinder Theory Fails U.S. District Court, S.D. New York, February 26, 2019

NEW YORK — The plaintiff Laura Shanahan sued Kolmar Laboratories, Inc. (Kolmar), Johnson & Johnson (J&J), and seven other defendants in state court in New York, alleging that her use of their asbestos-containing talc products led to the development of mesothelioma. While the plaintiff and Kolmar were both residents of New York, J&J nonetheless removed the matter to federal court and invoked the doctrine of fraudulent joinder to establish diversity jurisdiction. J&J argued that the plaintiff failed to plead specific facts showing what role Kolmar had in producing the talcum powder to which the plaintiff was allegedly exposed. J&J further claimed that Kolmar was immune from liability in New York as a “contract manufacturer” of J&J’s products. Under New York law, a “contractor is justified in relying upon the plans and specifications which he has contracted to follow, unless they are so apparently defective that an ordinary [contractor] of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury.” The plaintiff moved to remand the matter to state court.

The court granted the plaintiff’s motion to remand. While the court conceded that the plaintiff’s pleadings may have been insufficient to meet federal standards, the plaintiff’s pleadings adequately gave the plaintiff a possibility of success against Kolmar in state court, the proper analysis at this stage. The court further agreed with the plaintiff that Kolmar had failed to raise a contract-specifications affirmative defense in their responsive pleading, and that unresolved factual questions existed as to whether Kolmar had manufactured talc products to someone else’s plans and specifications. The court denied the plaintiff’s request for attorneys’ fees, finding that J&J did not lack an objectively reasonable basis for removal given the circumstances.

Only the Westlaw citation is currently available at 2019 WL 935164.

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