Products Liability Law Reporter

A U.S. district court held that defendants in an asbestos products liability suit did not meet their burden of showing that the plaintiff had fraudulently joined one of the defendants in the lawsuit.

Here, the personal representative of the estate of Elsie Louise Graham sued multiple defendants in Oregon state court, alleging claims for strict liability, negligence, reckless conduct, and alter ego/veil piercing. The plaintiff asserted that the defendants had manufactured, distributed, or sold products containing asbestos, which Graham used and which led to her death from mesothelioma. Defendants Johnson & Johnson, Janssen Pharmaceuticals, Inc., Johnson & Johnson Holdco (NA) Inc., LTL Management, Inc., and Kenvue, Inc. (J&J defendants) filed a notice of removal based on diversity of citizenship. These defendants argued that another defendant, Young Suk Chang—who was named individually and doing business as Woodvillage Market & Deli and allegedly sold asbestos-containing talcum products to Graham—had not been properly served and had been joined to defeat removal. The plaintiff moved to remand on the basis that the federal court lacked subject matter jurisdiction.

Granting the motion, the district court found that Chang is the owner and authorized representative of Woodvillage Market and that service was made at the same address as the business’s principal place of business. The evidence indicates that Woodvillage Market is Chang’s office, the court said, noting that Chang’s spouse had been served at the business they operated together. Thus, the court concluded that nothing in the record undermined the presumption of adequate service on Chang, who was a properly joined and in-forum defendant when the J&J defendants filed their notice of removal.

Turning to the issue of fraudulent joinder, the court noted that in determining whether there is complete diversity, courts may disregard the citizenship of a non-diverse defendant who has been fraudulently joined. Citing case law, the court found that to establish fraudulent joinder, one must prove actual fraud in the pleading of jurisdictional facts or the plaintiff’s inability to establish a cause of action against the non-diverse party in state court. The court concluded that the defendants had not met their burden of showing that Chang had been fraudulently joined. The court said there was a possibility that an Oregon state court would find that the plaintiff could state a claim against Chang. Moreover, the court found, the alleged vagueness of the pleading is not a basis to find fraudulent joinder. The defense arguments that Woodvillage Market was not in operation when Graham purchased the asbestos-containing products and that the market allegedly did not sell any talcum products raised fact questions about the viability of the plaintiff’s claims against Chang, the court found. However, such fact questions were not appropriately resolved during the fraudulent joinder determination.

Consequently, the court held that the defendants had not met their burden of showing Chang had been fraudulently joined.

Citation: Chatfield v. Brenntag N. Am., 2023 WL 8947928 (D. Or. Dec. 28, 2023).

Comment: In Corin v. Arkema, Inc., 2024 WL 53005 (C.D. Cal. Jan. 4, 2024), Paula Corin alleged that she developed mesothelioma from her use of asbestos-containing products. She filed a complaint in Los Angeles County Superior Court against 43 different business entities, asserting state law claims. One of the defendants, Colgate-Palmolive Co., removed the case to federal court on the basis of diversity jurisdiction. The plaintiff moved to remand. Granting the motion, the district court found that to remove a case, a defendant must file a notice of removal containing a short and plain statement of the grounds for removal. To assert diversity jurisdiction, the court added, a party must allege facts as to the citizenship of each party and must assert more than a mere legal conclusion that the parties are diverse. Here, the court found, Colgate’s notice is deficient in that the defendant alleges no facts concerning the citizenship of any of the other defendants and alleges the plaintiff’s citizenship based on information and belief, which is insufficient to confer jurisdiction. Thus, the court held that the defendant’s notice was defective and that remand to state court was therefore warranted. AAJ members Marc I. Willick, Lisa Barley, and Stuart Purdy, all of Long Beach, Calif., represented the plaintiff.

See also Sason v. Dykes Lumber Co., 221 A.D.3d 491 (N.Y. App. Div. 2023). Uziel Sason operated a woodworking shop from approximately 1967 to 1980. During this time, he frequently used asbestos-containing Durham Rock Hard putty, which allegedly was supplied by Dykes Lumber Co. and others. Sason later developed mesothelioma and died. His brother sued Dykes Lumber, which moved for summary judgment. The trial court denied the motion. Affirming, the appellate court noted that the defendant offered the affidavit of an industrial hygienist, who calculated Sason’s lifetime cumulative exposure of approximately 0.7 fiber years from all sources, establishing—prima facie—the absence of specific causation. In response, however, the plaintiff raised an issue of fact by submitting affidavits from experts who opined that Sason’s approximate exposure range exceeded known causal levels for mesothelioma. These expert opinions cited studies demonstrating that Sason’s work mixing and sanding joint compound and putty would have released and exposed him to toxic concentrations of asbestos fibers, the court said. In light of the parties’ competing causation evidence, the court concluded, the trial court’s denial of summary judgment for the defense was proper. Pierre A. Ratzki, New York City, represented the plaintiff.