FORT LAUDERDALE — Johnson & Johnson and Publix, defendants in a lawsuit alleging talcum powder products caused a woman's mesothelioma, have requested the case against them be moved from a state court to a U.S. District Court.
Teresa and Robert Birch filed a lawsuit June 13 against GlaxoSmithKline LLC, Johnson & Johnson, Johnson & Johnson Consumer and Publix Super Markets Inc., claiming talcum powder products manufactured and sold by the companies are responsible for the wife's illness.
As part of the complaint, Teresa Birch alleges she was exposed to asbestos through such products from the defendants between 1957 and 2000.
“She further alleges that she developed malignant mesothelioma as a result of such exposures,” according to the court record.
Johnson & Johnson and Publix filed a Notice of Removal for the case to be moved from the Circuit Court for the 17th Judicial Circuit in Broward County to the U.S. District Court for the Southern District of Florida.
The request states that Teresa Birch is a citizen of the United Kingdom and Northern Ireland. While the citizenship of her husband, Robert, is not obvious in this file, the defendants noted, there is a similar court filing by the couple in New York State that indicates he too is from the UK.
In the court filing, the defendants claim that the "case is removable because Publix has been fraudulently joined. The Court must disregard the citizenship of a fraudulently joined resident defendant. Plaintiffs’ only Publix-specific allegation is that Teresa Birch purchased asbestos-contaminated talcum powder products, including Johnson’s Baby Powder, from 'various supermarkets owned and/or operated' by Publix."
The defendants noted that based on Florida Statutes section 774.208: “Plaintiffs can prevail on an asbestos claim against a non-manufacturing retailer such as Publix only if Plaintiffs establish negligence, breach of warranty, or intentional misconduct.”
They further argue that retailers cannot be expected to test every product they sell.
“As a matter of law, Plaintiffs cannot establish constructive knowledge, or unreasonable conduct, by asserting that Publix had an obligation to test or investigate the products at issue by inspecting them for latent defects or conducting research regarding latent defects.”