Judge: Adding Walgreens as defendant can beat try by J&J to take talc cases out of Cook County courts

By Jonathan Bilyk | Apr 23, 2018

A Chicago federal judge has granted a tactical victory to a group of five plaintiffs suing Johnson & Johnson over claims talc powder caused cancer, saying the plaintiffs’ move to also aim their legal actions at Walgreens is enough to keep the lawsuits in Cook County court, rather than federal court, even though J&J and Walgreens assert the pharmacy chain was named as co-defendant just to keep the lawsuits on relatively friendlier legal turf for the plaintiffs.

Amid a wave of thousands of similar lawsuits flooding courts across the country, five plaintiffs – identified as Shawntell Frye, Barbara Busch, Diane Thompson, Sharon Wildman and Kevin Carter – each filed separate lawsuits in Cook County Circuit Court earlier this year. The lawsuits, all filed by attorney Robert Clifford and others at the Chicago-based Clifford Law Offices, targeted both New Jersey-based Johnson & Johnson and Deerfield-based Walgreen Co., asserting the companies should be held liable for failing to warn of the cancer risk allegedly posed by using talc powder.

Locally, the five lawsuits were among a batch of about two dozen other such product liability lawsuits filed against J&J and Walgreens by the Clifford firm on behalf of individual plaintiffs since February.

J&J then removed the cases to federal court, asserting they belonged there, along with many among the thousands of other cases a federal judicial panel has sent to a federal court in New Jersey to be considered in bulk.

Robert Clifford   Clifford Law

However, shortly after J&J took the cases to federal court, the Clifford lawyers asked the court to send them back to Cook County Circuit Court, arguing the presence of Walgreens defeats the bid to send the case to federal court, because there is not “complete diversity” among the litigants – meaning, in this case, the plaintiffs and at least one of the defendants are based in Illinois.

In response, Walgreens asked the federal judge to dismiss them from the cases, arguing the plaintiffs had no real case against them, as the chain does nothing more than sell the products manufactured and tested by pharmaceutical makers like J&J, and so is protected by Illinois’ “innocent seller” law.

J&J responded in a separate motion responding directly to the plaintiffs’ motion to remand, asserting the plaintiffs merely added Walgreens as a tactic to sidestep J&J’s expected move to lump these five cases in with the others pending in federal court, noting Walgreens does nothing more than provide “shelf space” from which to sell J&J’s products.

“… The Court should not disregard the circumstances surrounding Plaintiff’s purposeful decision to name Walgreens as a jurisdictional hook in an attempt to deprive Defendants of their right to a federal forum,” J&J wrote in their filing opposing the plaintiffs’ motion to remand.  “In the thousands of talc claims that have been filed in courts across this country, retailers like Walgreens have been named in only a very small handful, and nearly always as a mechanism to attempt to defeat diversity jurisdiction. Moreover, and specific to Walgreens, despite the fact that Walgreens is a nationwide retailer of (J&J’s) products, Walgreens has only been named in a very small number of talc cases, and almost exclusively in Illinois. It is not a coincidence that plaintiffs in Illinois have attempted to name Walgreens (an Illinois citizen) in almost every talc case filed in Illinois.”

U.S. District Judge Jorge L. Alonso, however, said these assertions aren’t enough to defeat the plaintiffs’ request to send the cases back to Cook County, even though he noted the plaintiffs’ addition of Walgreens as a defendant was “an apparent attempt” to sidestep J&J’s move to send the cases to federal court.

In support of his finding, Judge Alonso cited a 2011 decision from the U.S. Seventh Circuit Court of Appeals, docketed as Walton v. Bayer Corp., which found defendants, to defeat such jurisdictional questions, need to prove the claims against them are “utterly groundless.”

And in this case, the judge said, the defendants failed to meet that standard.

“Defendants must show not just that plaintiffs fail to state a claim but also that plaintiffs’ claims are utterly groundless such that they do not engage the jurisdiction of federal courts,” Alonso said. “Defendants have not attempted to do so.”

J&J and Walgreens are both represented in the action by attorneys Beth A. Bauer, of the firm of HeplerBroom LLC, of Edwardsville, and Stephen R. Kaufmann and Jessica L. Galanos, of Springfield.


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Clifford Law HeplerBroom Johnson & Johnson U.S. District Court for the Northern District of Illinois Walgreen Co.

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