Johnson's baby talcum powder on a supermarket shelf. Credit: Muhamad Norairin Ngateni/Shutterstock
A bankruptcy judge has ordered that all talcum powder lawsuits be stayed for 60 days, pending a Johnson & Johnson subsidiary's Chapter 11 filing that he transferred from North Carolina to New Jersey.
Both decisions occurred during a Wednesday hearing in the Oct. 14 bankruptcy of LTL Management, which Johnson & Johnson created to absorb talc liabilities tied to more than 38,000 lawsuits alleging is baby powder caused ovarian cancer or mesothelioma.
"What I believe at the moment is that I need to stop the litigation against the would-be protected parties, including J&J, for a short time period. Sixty days is what I have in mind," said U.S. Bankruptcy Judge J. Craig Whitley of the Western District of North Carolina at the hearing. "My thinking is we need to stop to give an opportunity to get the case to New Jersey and in the hands of another judge and for that person to get acquainted with the case."
The stay is a boost for Johnson & Johnson, which lost an earlier ruling that allowed most of the cases to move forward on a limited basis. But the New Jersey-based conglomerate had hoped to keep LTL Management's case in North Carolina, where numerous other companies have used the bankruptcy court to set up compensation trusts for tort liabilities.
"Although we believe this case was properly venued in North Carolina, we will continue to work with all parties to seek an efficient and equitable resolution," wrote John Kim, chief legal officer of LTL Management and former assistant general counsel of Johnson & Johnson. "We maintain our position that Johnson's baby powder is safe, does not contain asbestos and does not cause cancer. However, we believe resolving this matter is in the best interest of all our stakeholders, and any current and future claimants. We hope to soon bring that resolution and certainty to all parties involved."
As part of the LTL Management bankruptcy, Johnson & Johnson plans to create a potential $2 billion compensation program for cancer victims while avoiding continued defense costs in trials that have landed big verdicts, including one for $4.7 billion in 2018 that was lowered to $2.1 billion but upheld on appeal. But plaintiffs lawyers have fought back against the bankruptcy plan.
"Any justice delayed is justice denied," wrote plaintiff attorney Andy Birchfield, of Beasley Allen in Montgomery, Alabama, whose fellow partner, Leigh O'Dell, is a member of the official committee of talc claimants, approved Monday, in the LTL Management bankruptcy. "However, we appreciate that the judge has called a 60-day 'time out' to allow a succeeding judge to get up to speed on the issues. Today's action by the court is just the first step in resolving one of the many issues in this misguided attempt by J&J to avoid responsibility through the bankruptcy system."
LTL Management, formed from a "Texas Two Step" merger, filed for bankruptcy last month, citing an "unrelenting assault by the plaintiff trial bar" against Johnson & Johnson.
On Oct. 21, LTL filed an adversary complaint seeking a temporary restraining order, and a motion for preliminary injunction against tort claimants, insurance firms and indemnified companies such as retailers, insisting that allowing talc lawsuits to go forward would pull resources away from the bankruptcy proceeding.
Whitley, who heard arguments Oct. 22, did not immediately side with Johnson & Johnson.
His initial order last month temporarily suspended lawsuits against Johnson & Johnson's former subsidiary, Johnson & Johnson Consumer Inc., and LTL Management, but did not extend the stay to include other related entities, including parent company Johnson & Johnson. That propped the door open for most lawsuits because, although Johnson & Johnson Consumer Inc. has sold the product since 1979, the majority of lawsuits have named Johnson & Johnson as an additional defendant.
He also ordered LTL Management to show why its bankruptcy case should not be transferred to New Jersey from his courtroom in the Western District of North Carolina. That stemmed from an Oct. 25 motion filed by U.S. Bankruptcy Administrator Shelley Abel to transfer the LTL Management case "in the interest of justice or for the convenience of the parties."
She noted LTL Management's principal place of business was in New Brunswick, New Jersey, and nearly all its assets and employees were in New Jersey, where Johnson & Johnson was based. Further, two related bankruptcies were in nearby Delaware, and about 35,000 of the lawsuits were in multidistrict litigation in New Jersey.
"I will tell you, it's hard for me personally to turn loose of a case that's this interesting, and I would have looked forward to dealing with you all in this," Whitley said at Wednesday's hearing, "but I really believe we need to be elsewhere."
Many plaintiff attorneys had supported such a transfer.
"We're grateful the court recognizes that this matter logically belongs in New Jersey where J&J is headquartered and where more than 30,000 victims seek justice," Birchfield said. "Nevertheless, a $500 billion company should not be able to manipulate the bankruptcy system—in any state—to avoid liability for decades of corporate negligence, and the resulting deaths and disease suffered by thousands of victims. We look forward to the opportunity to raise these objections in a different and more appropriate venue."

