IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TRUDY KURTEN,
Plaintiff,
C.A. No. N17C-05-314 TAL

Vv.

JOHNSON & JOHNSON, et al.,

Defendants.

 

LAURA JACOBS, Imdividually and
as Personal Representative of the
Estate of SHERRI WRIGHT,
Plaintiffs,
v. C.A. No. N17C-05-337 TAL

JOHNSON & JOHNSON, et al.,

Defendants.

 

PATRICIA POOLE,
Plaintiff,
Vv. C.A. No. N17C-05-357 TAL

JOHNSON & JOHNSON, et al.,

Defendants.

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DORIS T. POWELL,
Plaintiff,
V. C.A. No. N17C-05-390 TAL

JOHNSON & JOHNSON, et al.,

Defendants.

 

CYNTHIA STARR, Individually,
And as Power of Attorney for
IZETTA STARR,

Plaintiffs,
C.A. No. N17C-05-295 TAL

V.

JOHNSON & JOHNSON, et al.,

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Defendants.

ORDER
This 14" day of April, 2020, the Court makes the following findings.

1. In 2016-17, some 200 lawsuits were filed against multiple defendants
that were involved in the manufacture and distribution of tale products. Each
claimed that talc, mixed in baby powder, had caused them to contract ovarian cancer.

a The plaintiffs were residents of many states. The biggest defendant
named was Johnson & Johnson (“J & J”), which moved to dismiss the complaints
on grounds that the Court did not have specific jurisdiction over J & J for the claims

of non-residents of Delaware as J & J is incorporated in New Jersey and has its

2
principal place of business in New Jersey. On September 10, 2018, the Court issued
its Opinion and Order dismissing the claims for lack of specific jurisdiction over J
& J.

3h Another defendant in the talc complaints was Imerys Talc America, Inc.
(“Imerys”). Imerys sought federal bankruptcy protection in February, 2019. By the
terms of 11 U.S.C. §362, all legal proceedings against Imerys, including the talc
lawsuits, were automatically stayed.

4. Rule 41 of the Delaware Rules of Civil Procedure governs “Dismissal
of Actions.” Its subparagraphs define the circumstances under which an action may
be dismissed, by agreement of the parties, (Rule 41(a)) or upon a failure to prosecute,
(Rule 41(b)). Under Rule 41(g), in cases where a party declares bankruptcy, the
Rule directs that the case will be placed on a “dormant docket” where it will remain
for two years at which time it will be dismissed, unless a party shows good cause to
extend the period.

5. By Order of the Bankruptcy Court dated, July 29, 2019, these cases
were remanded to the Superior Court. The Plaintiffs in these actions are residents
of Delaware and thus apparently unaffected by the Court’s specific jurisdiction
Opinion as to non-resident plaintiffs.

6. Plaintiffs styled this motion as one to sever their actions against Imerys

from the remaining defendants. But severance was effectively granted already by
the Bankruptcy Court when it remanded these matters to the Superior Court, leaving
Imerys in bankruptcy court. As made clear at oral argument, Plaintiffs are essentially
asking the Court to remove the actions from the dormant docket. The only action
necessary for the action to resume on the active docket is for the case to be moved
from the dormant docket to the active docket.

7. J & J has interceded with a somewhat novel argument. J & J says that
the Court cannot remove the cases from the dormant docket because the Court is
prohibited from doing so by Rule 41(g), the very rule that put the cases on the
dormant docket in the first place. J & J points to the language of the rule that upon
the filing of a bankruptcy, “the action shall be stayed” and it “shall” remain on the
dormant docket for two years unless it is extended by request of a party. J & J is
unable to cite any cases to support this reading, and indeed it appears there are
virtually no opinions written on the effect of the dormant docket of Rule 41.

8. In the Court’s view, J & J reads too much into the directives of a court
rule. For example, the Rule’s mandate that upon the filing of a bankruptcy, the
action shall be stayed is merely a restatement of the law of bankruptcy. It is not —
and nothing suggests it was ever intended to be — an independent right of non-
bankrupt co-defendants to enjoy the stay of the bankrupt entity. For example, J &
J’s reading would effectively immunize non-bankrupt co-defendants where the

bankrupt estate liquidates entirely. J & J would remain stayed for eternity. The
language of what “shall” be done is rather a set of directives to the Prothonotary as
to where a file should reside when a bankruptcy is filed. While the Rule clearly
intends to align the Court’s clerical practice with federal bankruptcy law, it cannot
be read to expand the rights of the non-bankrupt. Such a reading is not logical and
would actually thwart the purposes of remanding the case to state court in the first
place.

Based upon the foregoing, the Plaintiff's motion to “sever” is GRANTED
and this matter will be removed from the dormant docket.

IT IS SO ORDERED.

Judge Charles E Butler
