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Cebulske v. Johnson & Johnson, Johnson & Johnson Consumer Companies, Inc.

United States District Court, S.D. Illinois

March 25, 2015

LYNNE CEBULSKE, Plaintiff,
v.
JOHNSON & JOHNSON, JOHNSON & JOHNSON CONSUMER COMPANIES, INC., IMERYS TALC AMERICA, INC., f/k/a LUZENAC AMERICA, INC., and PERSONAL CARE PRODUCTS COUNCIL f/k/a COSMETIC, TOILETRY, AND FRAGRANCE ASSOCIATION (CTFA), Defendants.

MEMORANDUM & ORDER

DAVID R. HERNDON, District Judge.

This matter is before the Court on Personal Care Products Council's (hereinafter "PCPC") motion to dismiss for lack of personal jurisdiction pursuant to FEDERAL RULE OF CIVIL PROCEDURE 12(b)(2) (Doc. 24). Plaintiff Lynne Cebulske has filed her response (Doc. 48) to which PCPC replied (Doc. 53). For the reasons stated below, the Court GRANTS defendant's motion to dismiss.

I. Introduction and Background

On May 14, 2012 plaintiff Lynne Cebulske was diagnosed with ovarian cancer. Plaintiff alleges the cause of the cancer was the result of her using Johnson & Johnson Baby Powder and Shower to Shower (hereinafter "J&J products") to "dust her perineum for feminine hygiene purposes from approximately 1992 to 2014" (Doc. 3-1, ¶ 16). Plaintiff further alleges that her prolonged use of the J&J products caused her ovarian cancer, as she did not possess any of the risk factors commonly associated with the disease. Additionally, plaintiff asserts that women face an increased risk of ovarian cancer due to prolonged use of these talc based products in the genital area. Plaintiff supports her allegations by citing to various national studies dating back to the 1960s, many of which plaintiff contends defendants were aware (Doc. 3-1, ¶ 18-23).

On May 14, 2014, plaintiff filed a complaint before the Circuit Court of St. Clair County alleging eight counts of tort liability recognized under the laws of Illinois (Doc. 3-1). As to PCPC, Count VI alleges civil conspiracy against all defendants; Count VII alleges concert of action against all defendants; and Count VIII seeks a punitive damages award against all defendants.

PCPC is the successor of the Cosmetic, Toiletry, and Fragrance Association (hereinafter "CTFA") and is a District of Columbia corporation with its principle place of business also located within the District (Doc 3-1, ¶8). Plaintiff argues that jurisdiction is proper in Illinois because PCPC is "legally responsible for all liabilities incurred when it was known as CTFA, " including plaintiff's injuries that occurred within the state following the actions perpetrated through the Talc Interested Party Task Force (TIPTF) ( Id. ). CTFA formed the Talc Interested Party Task Force (TIPTF), with the purpose of "pool[ing] financial resources of [member] companies in an effort to collectively defend talc use at all costs and to prevent regulation of any type over this industry" (Doc 3-1, ¶22). In doing so, plaintiff alleges Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc. (hereinafter collectively "J&J"), Imerys, and PCPC suppressed information about the risks of ovarian cancer posed by these talc based products (Doc. 3-1 ¶66).

On June 3, 2014, defendants J&J removed the case to this Court based on diversity jurisdiction (Doc. 3). Thereafter, PCPC filed the instant motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) arguing this Court lacks personal jurisdiction with a supporting affidavit from Senior Executive Vice President for Strategic Initiatives for PCPC, Mark Pollak (Doc. 24-1). Defendant PCPC maintains that it has no direct continuous ties with Illinois and at no time purposely directed PCPC business at Illinois (Doc. 24). Plaintiffs argue that the conspiracy theory' provides the basis for personal jurisdiction (Doc. 48). Defendant contests its applicability (Doc. 53)

II. Motion to Dismiss

A district court has personal jurisdiction over a defendant "who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located." Fed.R.Civ.P. 4(k)(1)(A). In diversity cases, an out-of-state defendant must have "minimum contacts" with the forum state to properly assert personal jurisdiction. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

The minimum contacts analysis requires the court to determine whether a nonresident defendant "has purposefully avail[ed] itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protection of its laws." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) (citation omitted). Illinois' long-arm statute allows the exercise of jurisdiction to the full extent permitted under the Due Process Clause. 735 ILL. COMP. STAT. 5/2-209(c); Tamburo v. Dworkin, 601 F.3d 693, 700 (7th Cir.2010). Thus, an Illinois district court must inquire whether the "defendant has certain minimum contact with [the State] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'" Daimler AG v. Bauman, 134 S.Ct. 746, 754 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846, 2853 (2011)).

The plaintiff bears the burden of establishing personal jurisdiction, but where, as here, the issue is raised on a motion to dismiss, the plaintiff need only make a prima facie showing of jurisdictional facts. Purdue Research Found v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir.2003). The Court therefore accepts as true all well-plead facts alleged in the complaint and resolves any factual disputes in favor of the plaintiff. Id.

III. Analysis

a. Plaintiff Established a Prima Facie Case for Conspiracy

In this case, plaintiff asserts personal jurisdiction solely under the the conspiracy theory of jurisdiction (Doc. 48). A plaintiff asserts the "conspiracy theory of personal jurisdiction" against a non-resident defendant, who, although did not himself commit a tort in Illinois, did conspire with others to do so. See Cleary v. Phillip Morris Inc., 726 N.E.2d 770, 773 (Ill.App.Ct. 2000). However, the conspiracy theory of jurisdiction has only been properly asserted if (1) the defendant is part of an actionable conspiracy and (2) a co-conspirator performed a substantial act in furtherance of the conspiracy. Textor v. Bd. of Regents of Northern Illinois Univ., 711 F.2d 1387, 1392-93 (7th Cir.1983). The Court noted in its March 17, 2015 order that plaintiff made a prima facie showing of the existence ...


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