Lafontant v. Johnson & Johnson et al

MOTION to Dismiss for Lack of Jurisdiction

E.D.N.Y.February 3, 2017

Case 2:16-cv-06362-LDW-ARL Document 12 Filed 02/03/17 Page 1 of 2 PageID #: 85 Case 2:16-cv-06362-LDW-ARL Document 12 Filed 02/03/17 Page 2 of 2 PageID #: 86 152517-1 Mark K. Silver COUGHLIN DUFFY LLP 350 Mount Kemble Avenue Morristown, NJ 07962 (973) 267-0058 Attorneys for Defendant Imerys Talc America, Inc. f/k/a Luzenac America Inc. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------------X Case No. 2:16-CV-06362 MARIE LAFONTANT, (LDW)(ARL) Plaintiff, - against - JOHNSON AND JOHNSON, JOHNSON & JOHNSON DEFENDANT IMERYS TALC CONSUMER COMPANIES, INC., and AMERICA, INC.’S NOTICE IMERYS TALC AMERICA, INC. OF RULE 12(b)(2) MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION Defendants. ----------------------------------------------------------------X To: Jonathan M. Sedgh, Esq. Weitz & Luxenburg, P.C. 700 Broadway New York, New York 10003 Attorneys for American Airlines COUNSEL: PLEASE TAKE NOTICE THAT at a date and time to be set by the Court, Defendant Imerys Talc America, Inc., by its attorneys, Coughlin Duffy LLP, shall move before the Honorable Leonard D. Wexler, U.S.D.J., at the United States District Court, Eastern District of New York, 225 Cadman Plaza East, Brooklyn, NY 11201, for an Order dismissing this action pursuant to Rule 12(b)(2) for lack of personal jurisdiction and for such other and further relief as may be warranted. Case 2:16-cv-06362-LDW-ARL Document 12-1 Filed 02/03/17 Page 1 of 2 PageID #: 87 152517-1 PLEASE TAKE FURTHER NOTICE THAT in support of their motion Defendants will rely on the attached Memorandum of Law and Declaration of Mark K. Silver with accompanying exhibits. Respectfully submitted, Dated: February 3, 2017 By: /s/ Mark K. Silver Mark K. Silver COUGHLIN DUFFY LLP 350 Mount Kemble Avenue Morristown, NJ 07962 (973) 267-0058 Attorneys for Defendant Imerys Talc America, Inc. f/k/a Luzenac America Inc. Case 2:16-cv-06362-LDW-ARL Document 12-1 Filed 02/03/17 Page 2 of 2 PageID #: 88 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------------------X MARIE LAFONTANT, No. 2:16-cv-06362-LDW-ARL Plaintiff, MEMORANDUM IN SUPPORT OF RULE 12(b)(2) MOTION TO DISMISS FOR LACK OF -against- PERSONAL JURISDICTION JOHNSON & JOHNSON, JOHNSON & JOHNSON CONSUMER COMPANIES, INC., and IMERYS TALC AMERICA, INC. Defendants. --------------------------------------------------------------------------X Defendant Imerys Talc America, Inc. (“Imerys”), by its attorneys, pursuant to Federal Rule of Civil Procedure 12(b)(2), moves to dismiss Plaintiff’s claims against Imerys for lack of personal jurisdiction. In support thereof, Imerys states as follows: SUMMARY OF ARGUMENT Plaintiff brings this action against Imerys and the other defendants, alleging that the talc in the Johnson & Johnson Baby Powder and Shower to Shower that Plaintiff Marie Lafontant used (collectively “Products”) caused her to develop ovarian cancer. (Declaration of Mark K. Silver (hereinafter “Silver Decl.”) at Exhibit 1, Complaint at ¶ 3.) Plaintiff asserts that Imerys mined and distributed the talc that was ultimately used in the Products manufactured and sold by Defendant Johnson & Johnson Consumer Inc., formerly known as Johnson & Johnson Consumer Companies, Inc. (Id. at. ¶ 13.) Plaintiff’s Complaint is silent on how this Court may properly exercise personal jurisdiction over Imerys. Plaintiff can establish neither specific nor general personal jurisdiction Case 2:16-cv-06362-LDW-ARL Document 12-2 Filed 02/03/17 Page 1 of 13 PageID #: 89 2 for their claims. Imerys is not subject to general personal jurisdiction in New York. In Daimler AG v. Bauman, 134 S. Ct. 746 (2014), the United States Supreme Court emphasized that general jurisdiction may be exercised over a corporation only in those states where the corporation can be considered to be “at home.” Daimler AG, 134 S. Ct. at 749. Plaintiff properly allege that Imerys is a Delaware corporation with its principal place of business in California. (Silver Decl., Exhibit 1, Complaint at ¶ 11.) And, there are no other facts sufficient to render Imerys at home in New York in order to support the proper exercise of general jurisdiction. Plaintiff similarly cannot establish specific personal jurisdiction for their claims against Imerys. Plaintiff’s claims do not arise from any in-state activities of Imerys. Plaintiff does not assert, nor could they, that Imerys mined, manufactured, sold, or distributed the talc within, to, or from New York that was used in the Products or that the business transactions between Imerys and Johnson & Johnson Consumer Inc. occurred in New York. None of these activities occurred in New York. Indeed, the business transactions between Imerys and Johnson & Johnson Consumer Inc. occurred outside New York and have no bearing on whether this Court may constitutionally exercise personal jurisdiction over Imerys. Plaintiff is unable to satisfy the Due Process Clause’s mandate that “the assertion of personal jurisdiction . . . comport with ‘fair play and substantial justice.’” Burger King Corp. v. Rudezewicz, 471 U.S. 462, 474, 476 (1985) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 320 (1945)). Because the Court’s exercise of personal jurisdiction over Imerys would offend traditional notions of fair play and substantial justice, Imerys is not subject to personal jurisdiction in New York for this case. Thus, the Court should dismiss Plaintiff’s claims against Imerys for want of personal jurisdiction. Case 2:16-cv-06362-LDW-ARL Document 12-2 Filed 02/03/17 Page 2 of 13 PageID #: 90 3 JURISDICTIONAL FACTS Imerys is not a resident of New York. (Silver Decl., Exhibit 2, Affidavit of Patrick Joseph Downey (“Downey Aff.”), at ¶ 6. Imerys is a Delaware corporation with its principal place of business in California. Id. at ¶ 5. Imerys does not own or possess any property in the state. Id. at ¶ 7. It does not maintain an office or operations in New York. Id. at ¶ 8. Imerys does not have an address, telephone number, or bank account in New York. Id. at ¶¶ 9-11. None of its officers reside in New York or have offices in the state, and it does not maintain any records in the state. Id. at ¶¶ 12-13. None of the other named defendants are citizens of New York. (Silver Decl., Exhibit 1, Complaint at ¶¶ 1, 4, 10.) They are not incorporated within the state and do not maintain their principal places of business in New York. (See id.) Only Plaintiff is a resident a of New York. (See id. at ¶ 1.) The talc that is used in the Products is not mined in New York. (Silver Decl., Exhibit 2, Downey Aff., at ¶ 14.) Indeed, Imerys neither sells talc in New York for use in the Products, nor ships or distributes talc in New York for use in the Products. Id. at ¶¶ 15-17. Imerys’ commercial transactions with Johnson & Johnson Consumer Inc., whose relevant manufacturing facilities are not located in New York, also took place outside New York. Based on these undisputed facts, there is no proper basis for the Court to exercise personal jurisdiction over Imerys for Plaintiff’s claims against it. For these reasons, and those discussed below, the Court should dismiss Plaintiff’s claims against Imerys for lack of personal jurisdiction. Case 2:16-cv-06362-LDW-ARL Document 12-2 Filed 02/03/17 Page 3 of 13 PageID #: 91 4 ARGUMENT AND AUTHORITIES I. PLAINTIFF’S CLAIMS AGAINST IMERYS SHOULD BE DISMISSED FOR LACK OF PERSONAL JURISDICTION. The Court’s exercise of either general or specific jurisdiction over Plaintiff’s claims against Imerys would violate Imerys’ due process rights. The Court, therefore, must dismiss Plaintiff’s claims against Imerys for lack of personal jurisdiction. A. Plaintiff Bears the Burden of Establishing a Prima Facie Basis for This Court’s Assertion of Personal Jurisdiction Over Imerys. When personal jurisdiction is challenged, the plaintiff must demonstrate that the defendant is subject to personal jurisdiction in the forum. Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 165 (2d Cir. 2005) (“In opposing a motion to dismiss for lack of personal jurisdiction, [plaintiff] bears[ ] the burden of establishing that the court has jurisdiction over [defendants].”) (internal quotation marks omitted). Federal courts sitting in diversity engage in a two-step analysis when evaluating personal jurisdiction. Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 224 (2d Cir. 2014). “First, a district court must determine whether, under the laws of the forum state (New York in this case), there is jurisdiction over the defendant. Second, [it] must determine whether an exercise of jurisdiction under these laws is consistent with federal due process requirements.” Grand River Enters., 425 F.3d at 165 (quoting Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999)). Accordingly, Plaintiff must prove that Imerys is amenable to suit under the New York long-arm statute and that the exercise of personal jurisdiction over Imerys would not violate due process. Id. B. Imerys Is Not Amenable to Jurisdiction Under New York’s Long-Arm Statute. New York’s long-arm statute enumerates several bases for exercising jurisdiction over a Case 2:16-cv-06362-LDW-ARL Document 12-2 Filed 02/03/17 Page 4 of 13 PageID #: 92 5 foreign defendant. See N.Y. C.P.L.R. § 302. The relevant acts include: 1. Transacting business within the state or contracting anywhere to supply goods or services in the state; or 2. Committing a tortious act within the state; or 3. Committing a tortious act without the state causing injury to person or property within the state, if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or 4. Owning, using or possessing any real property situated within New York. Id. Plaintiff pleads no facts showing how Imerys is amenable to service under New York’s long-arm statute. Plaintiff does not allege that Imerys transacted any business in New York, nor do they allege that Imerys made any contracts within the state. Similarly, Plaintiff fails to allege that Imerys took any action in New York that caused Plaintiff’s alleged injuries, that Imerys regularly conducts or solicits business in New York from which Plaintiff’s alleged injuries arise, or why Imerys expected or should reasonably expect its acts to have consequences in the state. Nor does Plaintiff plead that Imerys owns, uses, or possesses any real property in the state. Indeed, Plaintiff’s Complaint is silent on how Imerys falls within any of the potential bases of jurisdiction listed in New York’s long-arm statute. Because Plaintiff cannot satisfy the initial prong of their burden to establish personal jurisdiction, in personam jurisdiction may not be exercised. See Grand River Enters., 425 F.3d at 165. C. Due Process Requires “Minimum Contacts.” Assuming arguendo that Plaintiff could establish that Imerys is subject to New York’s long-arm statute, and they have not, Plaintiff would still be required to prove that exercising personal jurisdiction over Imerys would not violate due process protections. Id. Case 2:16-cv-06362-LDW-ARL Document 12-2 Filed 02/03/17 Page 5 of 13 PageID #: 93 6 The Due Process Clause of the Fourteenth Amendment limits New York’s authority to exercise personal jurisdiction over a non-resident defendant. The non-resident defendant must “have certain minimum contacts . . . such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co., 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Accordingly, absent one of the traditional territorial bases of personal jurisdiction - presence, domicile, or consent- a court may assert personal jurisdiction over a defendant only if certain minimum contacts between New York and the defendant are established. Id. When evaluating minimum contacts, the inquiry is whether there is “some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958). It is essential that “the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980) (emphasis added). A court can acquire personal jurisdiction over a non-resident defendant under two mechanisms: specific jurisdiction and general jurisdiction. Daimler, 134 S. Ct. at 754; Gucci Am. v. Bank of China, 768 F.3d 122, 134 (2d Cir. 2014). Specific jurisdiction arises when the non-resident defendant “has purposefully directed [its] activities at residents of the forum [state] and the litigation results from injuries that arise out of or relate to those activities.” Burger King, 471 U.S. at 472 (internal quotation and citations omitted). General jurisdiction arises when the defendant’s “‘continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities’.” Daimler, 134 S. Ct. at 754 (quoting Int’l Shoe Co., 326 U.S. at 316). Case 2:16-cv-06362-LDW-ARL Document 12-2 Filed 02/03/17 Page 6 of 13 PageID #: 94 7 D. This Court Cannot Exercise Specific Jurisdiction Over Imerys. To assert specific jurisdiction over a non-resident defendant, a state must inquire into the relationship among the defendant, the forum, and the litigation. Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014). The focus must be on whether the in-state activities of the non-resident, corporate defendant “gave rise to the liabilities sued on.” Daimler, 134 S. Ct. at 761 (internal citation omitted). It is not enough that a defendant have some minimum contacts with the forum state by way of the plaintiff’s injury. Walden, 134 S. Ct. at 1125. (“[M]ere injury to a forum resident is not a sufficient connection to the forum. . . . The proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant’s conduct connects him to the forum in a meaningful way.”). Rather, “the relationship must arise out of contacts that the defendant himself’ creates with the forum State, [for] [d]ue process limits on a state’s adjudicative authority principally protect the liberty of the nonresident defendant-not the convenience of plaintiffs or third parties.” Id. at 1122 (emphasis added) (internal quotations and citation omitted). No matter how significant the plaintiff’s contacts with the forum, it is the defendant’s contacts with the forum that must be considered. Id. “[T]he plaintiff cannot be the only link between the defendant and the forum [state].” Id.; see also World-Wide Volkswagen, 444 U.S. at 298 (“the mere ‘unilateral activity of those who claim some relationship with a non resident defendant cannot satisfy the requirement of contact with the forum State.’”) (quoting Hanson, 357 U.S. at 253). The benchmark in determining specific jurisdiction is “whether the defendant purposefully established minimum contacts in the forum State,” Burger King, 471 U.S. at 474 (internal quotation and citation omitted), such that the defendant could “reasonably anticipate being haled into court” for its forum-based activities, World-Wide Volkswagen, 444 U.S. at 297. Case 2:16-cv-06362-LDW-ARL Document 12-2 Filed 02/03/17 Page 7 of 13 PageID #: 95 8 Purposeful availment is necessary to ensure a non-resident is not haled into a jurisdiction as the result of attenuated contact. Burger King, 471 U.S. at 475. If a non-resident has not purposefully availed itself of the laws of the forum state, the non-resident is not subject to personal jurisdiction there. Plaintiff’s Complaint fails to identify any specific action by Imerys within New York. Plaintiff fails to allege how Imerys has purposefully availed itself of the privilege of acting in New York. While Plaintiff alleges that Imerys mines and distributes talc, Plaintiff does not contend that these actions take place in New York, nor could they. Imerys did not mine, import, manufacture, sell, distribute, or otherwise provide the talc that was used in the Products in, to, or from New York. (Silver Decl., Exhibit 2, Downey Aff. at ¶¶ 14-17.) The mere fact that Imerys placed talc into the stream of commerce outside New York and that products manufactured by a third party using that talc ultimately made their way to New York does not satisfy the requirement of meaningful contact with New York required for the exercise of specific jurisdiction. The mere “placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.” Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 112 (1987) (plurality op.). The only wrongful act Plaintiff alleges was committed by Imerys relates to its commercial relationship with its customer, Johnson & Johnson Consumer Inc., whose relevant manufacturing facilities are not located in New York. Imerys has conducted no activity in New York tied to the Products that Plaintiff Marie Lafontant allegedly used. Here, Plaintiff has not demonstrated that Imerys directed any activity with respect to the Products in New York. Therefore, Plaintiff cannot show that their alleged injuries arise from any activity by Imerys within New York. Accordingly, the Court cannot constitutionally exercise Case 2:16-cv-06362-LDW-ARL Document 12-2 Filed 02/03/17 Page 8 of 13 PageID #: 96 9 specific personal jurisdiction over Imerys in New York. To hold otherwise would violate Imerys’ due process rights under the Fourteenth Amendment. E. The Exercise of General Jurisdiction Over Imerys Would Violate Due Process. In contrast to specific jurisdiction, general jurisdiction is “all-purpose jurisdiction.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011). General jurisdiction arises when the defendant’s “continuous corporate operations within a state are so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.” Daimler, 134 S. Ct. at 754 (internal quotation and citation omitted). In order to establish the existence of general jurisdiction, a plaintiff must show that the defendant’s “affiliations with the [forum] State are so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.” Daimler, 134 S.Ct. at 761 (emphasis added) (quoting Goodyear, 131 S. Ct. at 2851). Only in an exceptional case will a corporation’s operations in a forum other than its formal place of incorporation or principal place of business be so substantial and of such a nature as to render it “at home” in the forum state. Daimler, 134 S.Ct. at 761 n.19; Sonera Holding B.V., 750 F.3d at 223 (noting that the Daimler opinion “reaffirms that general jurisdiction extends beyond an entity’s state of incorporation and principal place of business only in the exceptional case where its contacts with another forum are so substantial as to render it at home in that state”) (emphasis added) (internal quotation and citation omitted). Here, Plaintiff fails to allege any facts that would indicate Imerys is “at home” in New York. Plaintiff’s allegations - i.e., that: (1) Imerys mined and distributed talcum powder (Silver Decl., Exhibit 1, Complaint at ¶ 13); (2) introduced the Products into interstate commerce (Id. at ¶ 15); and conducted “regular,” “sustained”, and “substantial” business in New York - are Case 2:16-cv-06362-LDW-ARL Document 12-2 Filed 02/03/17 Page 9 of 13 PageID #: 97 10 exactly the sort of “unacceptably grasping” form of general jurisdiction that the Supreme Court criticized in Daimler. 134 S. Ct. at 760. Federal and state courts across the country now reject such arguments.1 Plaintiff does not allege that Imerys conducted any business in New York. Moreover, the Supreme Court has rejected jurisdictional arguments based solely on a stream of commerce theory. See Goodyear, 131 S. Ct. at 2855 (the flow of a defendant’s products into the forum does not “warrant a determination that . . . the forum has general jurisdiction over a defendant”). Plaintiff’s allegations are simply insufficient to support the exercise of general jurisdiction in New York. See Daimler, 134 S. Ct. at 762 n.20 (“[a] corporation that operates in many places can scarcely be deemed at home in all of them.”). Imerys has demonstrated that it is in no way “at home” in New York. Imerys is neither 1 See e.g., Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014) (emphasizing that “[a] corporation that operates in many places can scarcely be deemed at home in all of them” and dismissing claims for lack of personal jurisdiction); Stroud v. Tyson Foods, Inc., 91 F. Supp. 3d 381, 386-87 (E.D.N.Y. 2015) (concluding that no general personal jurisdiction existed over out- of-state defendant who operated a manufacturing facility in the state because the contact was insufficient to establish it was “at home” since the defendant had hundreds of manufacturing plants nationwide); Freedman v. Suntrust Banks, Inc., 139 F. Supp. 3d 271, 280 (D.D.C. 2015) (discussing prior cases refusing to find general jurisdiction despite contract negotiations and meetings with the U.S. government, a website, tax filings, and contacts with non-government clients in the District and concluding that it could not find Defendants essentially at home in the District of Columbia “[w]hen the Court views Defendants’ contacts with the District of Columbia in light of Defendants’ contacts with their seven other primary bases of operation”) (internal quotation and citations omitted); Eaves v. Pirelli Tire, LLC, No. 13-1271, 2014 WL 1883791, at *9 (D. Kan. May 12, 2014) (determining that “plaintiffs’ stream of commerce arguments are to no avail for general jurisdiction”); Lexion Med., LLC v. SurgiQuest, Inc., 8 F. Supp. 3d 1122, 1127-28 (D. Minn. 2014) (explaining that although defendant had “repeatedly transacted business” in State, a corporation’s “continuous activity of some sorts within a state” is not sufficient to support general jurisdiction) (internal quotation and citation omitted)); In re Plavix Related Cases, No. 2012L5688, 2014 WL 3928240, at *5-8 (Trial Order) (Ill. Cir. Ct. Aug. 11, 2014) (“Plaintiffs’ jurisdictional framework, taken to its logical conclusion, would produce exactly that forbidden result: national general jurisdiction in every state in which Defendants are doing business and generating sales revenue. Daimler makes clear that such an approach to general jurisdiction does not comport with due process.”). Case 2:16-cv-06362-LDW-ARL Document 12-2 Filed 02/03/17 Page 10 of 13 PageID #: 98 11 incorporated nor maintains its principal place of business (nor any place of business) in New York. (Silver Decl., Exhibit 2, Downey Aff. at ¶ 5.) Imerys is a Delaware corporation with its principal place of business located in California. Id. Imerys is not a resident of New York. Id. at ¶ 6. It does not maintain an office or operations in New York or own or possess any real property located in the state. Id. at ¶¶ 7-8. Plaintiff’s generic allegations pertaining to Imerys’ alleged activities are insufficient to satisfy the limitations imposed by the Due Process Clause. Traditional notions of fair play and substantial justice would be offended by haling Imerys into a court in a state where it is neither incorporated nor has its principal place of business. Consequently, this Court may not constitutionally exercise personal jurisdiction over Imerys in this matter, and Plaintiff’s claims against Imerys must be dismissed for lack of personal jurisdiction. See Daimler, 134 S. Ct. at 751-54, 760-62; In re Plavix, 2014 WL 3928240, at *5-8. CONCLUSION Plaintiff has not made a prima facie showing that this Court may assert personal jurisdiction over Imerys. Plaintiff has not demonstrated that Imerys has “purposefully directed” its activities at New York residents and that the litigation arises from those specific activities. Moreover, Plaintiff has not shown this is the exceptional case where a corporation’s operations in a forum other than its formal place of incorporation or principal place of business is so substantial and of such a nature as to render it “at home” in that forum. This Court, therefore, may not constitutionally assert personal jurisdiction over Imerys and must dismiss all of Plaintiff’s claims against Imerys for want of personal jurisdiction. Respectfully submitted, /s/ Mark K. Silver Mark K. Silver Case 2:16-cv-06362-LDW-ARL Document 12-2 Filed 02/03/17 Page 11 of 13 PageID #: 99 12 COUGHLIN DUFFY LLP 350 Mount Kemble Avenue Morristown, New Jersey 07962 (973) 267-0058 Attorneys for Defendant Imerys Talc America, Inc. f/k/a Luzenac America Inc. Case 2:16-cv-06362-LDW-ARL Document 12-2 Filed 02/03/17 Page 12 of 13 PageID #: 100 13 CERTIFICATE OF SERVICE I hereby certify that on the 3rd day of February, 2017, I electronically filed this document with the Clerk of the U.S. District Court, Eastern District of New York, using the CM/ECF System, which will send notification of such filing to all parties, including. Jonathan Michael Sedgh WEITZ & LUXENBERG 700 Broadway New York, NY 10003 /s/ Mark K.Silver Mark K.Silver Case 2:16-cv-06362-LDW-ARL Document 12-2 Filed 02/03/17 Page 13 of 13 PageID #: 101 152517-1 Mark K. Silver COUGHLIN DUFFY LLP 350 Mount Kemble Avenue Morristown, NJ 07962 (973) 267-0058 Attorneys for Defendant Imerys Talc America, Inc. f/k/a Luzenac America Inc. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------------X Case No. 2:16-CV-06362 MARIE LAFONTANT, (LDW) (ARL) Plaintiffs - against - JOHNSON AND JOHNSON, JOHNSON & JOHNSON DECLARATION OF CONSUMER COMPANIES, INC., and MARK K. SILVER, ESQ. IMERYS TALC AMERICA, INC. IN SUPPORT OF DEFENDANT IMERYS TALC AMERICA, INC.’S RULE 12(b)(2) MOTION Defendants. TO DISMISS FOR ----------------------------------------------------------------X LACK OF PERSONSAL JURISDICTION MARK K. SILVER, ESQUIRE, an attorney admitted to practice before the United States District Court for the Eastern District of New York, declares and says: 1. I am a Partner with the law firm of Coughlin Duffy LLP, attorneys for Defendant Imerys Talc America, Inc. in the above-captioned matter. I submit this Declaration in support of Defendant Imerys Talc America, Inc.’s Rule 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction. 2. Attached as Exhibit 1 is a true and correct copy Plaintiffs’ Complaint. 3. Attached as Exhibit 2 is a true and correct copy of an Affidavit from Patrick Joseph Downey. Case 2:16-cv-06362-LDW-ARL Document 12-3 Filed 02/03/17 Page 1 of 36 PageID #: 102 152517-1 I declare that the foregoing is true and correct under penalty of perjury. Respectfully submitted, Dated: February 3, 2017 By: /s/ Mark K. Silver Mark K. Silver COUGHLIN DUFFY LLP 350 Mount Kemble Avenue Morristown, NJ 07962 (973) 267-0058 Attorneys for Defendant . Imerys Talc America, Inc. f/k/a Luzenac America Inc. Case 2:16-cv-06362-LDW-ARL Document 12-3 Filed 02/03/17 Page 2 of 36 PageID #: 103 Exhibit 1 Plaintiff Marie LaFontant’s Complaint Case 2:16-cv-06362-LDW-ARL Document 12-3 Filed 02/03/17 Page 3 of 36 PageID #: 104 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------------------------X Marie Lafontant, Docket No.: Plaintiff, COMPLAINT -against- AND DEMAND FOR JURY TRIAL JOHNSON & JOHNSON, JOHNSON & JOHNSON CONSUMER COMPANIES, INC., and IMERYS TALC AMERICA, INC. Defendants. ---------------------------------------------------------------------------X Plaintiff, by her attorney WEITZ & LUXENBERG, P.C., alleges as follows: SUBJECT MATTER JURISDICTION AND VENUE 1. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332 because the amount in controversy exceeds $75,000.00, exclusive of interest and costs, and because complete diversity exists between the parties, as Plaintiff is a citizen of New York, which is different from the states where the Defendants are incorporated and have their principal places of business. Plaintiff is a citizen of the United States of America, and resident of the City of Corona, in Queens County in the State of New York. 2. Venue is proper within this District pursuant to 28 U.S.C. § 1391 because it is a judicial district where Defendants are subject to personal jurisdiction in accordance with 28 U.S.C. § 1391(c). Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 1 of 30 PageID #: 40Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 4 of 36 PageID #: 105 2 NATURE OF THE CASE 3. This is an action for personal injury on behalf of the Plaintiff Marie Lafontant against Defendants, who were responsible for the products known as Johnson & Johnson Baby Powder and Shower to Shower (hereinafter "the PRODUCTS"), which were used by Plaintiff Marie Lafontant beginning in approximately 1975 through in or about 2013 and caused Plaintiff Marie Lafontant’s ovarian cancer, which required surgery and treatments, as well as other severe and personal injuries which are permanent and lasting in nature, physical pain and mental anguish, including diminished enjoyment of life, a risk of future cancer(s), reasonable fear of future cancer, any and all life complications caused by Plaintiff’s ovarian cancer, as well as the need for lifelong medical treatment, monitoring and/or medications, and fear of developing any of the above and other named health consequences. PARTY DEFENDANTS AND PERSONAL JURISDICTION 4. Upon information and belief, Defendant JOHNSON & JOHNSON is a corporation doing business in and authorized to do business in the state of New York and was incorporated in New Jersey in 1887. 5. Upon information and belief, at relevant times, Defendant JOHNSON & JOHNSON maintains an office located at One Johnson & Johnson Plaza, New Brunswick, New Jersey, 08933 as well as several locations within the state of New York, and has approximately 127,100 employees worldwide. As stated in JOHNSON & JOHNSON’S Form10-K Annual Report Pursuant to Section 13 of the Securities Exchange Act of 1934 for the fiscal year ended January 3, 2016, JOHNSON & JOHNSON’S primary focus is on products related to human health and well-being. 6. Upon information and belief, at relevant times, Defendant JOHNSON & Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 2 of 30 PageID #: 41Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 5 of 36 PageID #: 06 3 JOHNSON’S family of companies includes more than 250 operating companies conducting business in 60 countries of the world and organized into three business segments: Consumer, Pharmaceutical and Medical Devices. 7. Upon information and belief, at relevant times, JOHNSON & JOHNSON’S family of companies includes 121 manufacturing facilities and, within the United States, eight facilities are used by the Consumer segment. In addition to the manufacturing facilities, JOHNSON & JOHNSON maintains numerous offices and warehouses in the United States. 8. Upon information and belief, at relevant times, the Consumer segment of the JOHNSON & JOHNSON family of companies includes a broad range of over-the-counter products including, but not limited to, Shower to Shower body powder and Johnson & Johnson’s Baby Powder. These products are marketed to the general public and sold both to retail outlets and distributors throughout the world. 9. Upon information and belief, at relevant times, Defendant JOHNSON & JOHNSON has engaged in substantial, continuous economic activity in New York, including marketing, distribution, and sale of billions of dollars in products in New York including, but not limited to, Shower to Shower body powder and Johnson & Johnson’s Baby Powder. 10. Upon information and belief, at relevant times, Defendant JOHNSON & JOHNSON CONSUMER COMPANIES, INC., was a New Jersey Corporation doing business in the state of New York, a wholly owned subsidiary of JOHNSON & JOHNSON, and engaged in substantial, continuous economic activity in New York, including marketing, distribution, and sale of billions of dollars in products to New Yorkers including, but not limited to, Shower to Shower body powder and Johnson & Johnson’s Baby Powder. Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 3 of 30 PageID #: 42Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 6 of 36 PageID #: 107 4 11. Upon information and belief, at relevant times, Defendant, IMERYS TALC AMERICA, INC., is a Delaware corporation, with its principal place of business in the state of California. 12. Upon information and belief, at relevant times, IMERYS TALC AMERICA, INC., is the successor or continuation of Luzenac America, Inc., and IMERYS TALC AMERICA, INC. is legally responsible for all liabilities incurred when it was known as Luzenac America, Inc.. 13. Upon information and belief, at relevant times, Defendant IMERYS TALC AMERICA, INC. has been in the business of mining and distributing talcum powder for use in talcum powder based products, including Shower to Shower body powder and Johnson & Johnson’s Baby Powder. 14. Upon information and belief, at relevant times, all allegations concerning Defendants includes Defendants’ parents, subsidiaries, affiliates, divisions, franchises, partners, joint venturers, organizational units of any kind, predecessors, successors and assigns, and their officers, directors, employees, agents, representatives, and any and all other persons acting on behalf of Defendants. 15. Upon information and belief, at relevant times, Defendants were engaged in the business of researching, developing, designing, licensing, manufacturing, distributing, selling, marketing, and/or introducing into interstate commerce and into the State of New York, either directly or indirectly through third parties or related entities, including Shower to Shower body powder and Johnson & Johnson’s Baby Powder. 16. At relevant times, Defendants conducted regular and sustained business and engaged in substantial commerce and business activity in the State of New York, which included Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 4 of 30 PageID #: 43Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 7 of 36 PageID #: 108 5 but was not limited to selling, marketing and distributing its products including Shower to Shower body powder and Johnson & Johnson’s Baby Powder in New York. 17. Upon information and belief, at all relevant times, Defendants expected or should have expected that their acts would have consequences within the United States of America including the State of New York, and Defendants derived and derive substantial revenue from interstate commerce. 18. Upon information and belief, at all relevant times, Defendants have transacted and conducted business in the State of New York and/or contracted to supply goods and services within the State of New York and these causes of action have arisen from same. 19. Upon information and belief, at all relevant times, Defendants committed a tortuous act without the State of New York causing injury within the State of New York out of which act(s) these causes of action arise. 20. Upon information and belief, at all relevant times, Defendants committed tortuous act(s) within the State of New York out of which act(s) these causes of action arise. FACTUAL BACKGROUND 21. Beginning in approximately 1975, Plaintiff Marie Lafontant purchased the PRODUCTS and used said PRODUCTS on a daily basis in and around her perineal regions through in or about 2013. Plaintiff Marie Lafontant purchased the PRODUCTS and used the PRODUCTS by applying the PRODUCTS to her body in accordance with the instructions for use that accompanied the PRODUCTS and in a reasonably foreseeable manner. 22. On or about December 5, 2013, Plaintiff Marie Lafontant was diagnosed with ovarian cancer, and underwent surgery and other treatments for said ovarian cancer. Plaintiff was diagnosed with ovarian cancer, and suffered effects and sequelae therefrom, as a direct and Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 5 of 30 PageID #: 44Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 8 of 36 PageID #: 109 6 proximate result of the unreasonably dangerous and defective nature of talcum powder, the main ingredient of the PRODUCTS, and Defendants’ wrongful and negligent conduct in the research, development, testing, manufacture, production, promotion, distribution, marketing, and sale of the PRODUCTS. 23. Plaintiff was thus caused to sustain severe and permanent personal injuries, pain, suffering, and mental anguish. 24. The injuries and damages sustained by Plaintiff was caused or substantially contributed to by Defendants’ PRODUCTS and the Defendants’ wrongful conduct. 25. The warnings for the PRODUCTS in effect during the time period Plaintiff used the PRODUCTS were vague, incomplete or otherwise inadequate, both substantively and graphically, to alert Plaintiff of the ovarian cancer risk associated with this drug. 26. The Defendants did not provide adequate warnings to Plaintiff’s doctors, Plaintiff, the health care community and the general public about the increased risk of serious adverse events that are described herein. 27. Had Plaintiff been adequately warned of the potential life-threatening side effects of the Defendants’ PRODUCTS, Plaintiff would not have purchased or used the PRODUCTS. 28. By reason of the foregoing, Plaintiff has developed serious and dangerous side effects including ovarian cancer, which required surgery and treatments, as well as other severe and personal injuries which are permanent and lasting in nature, physical pain and mental anguish, including diminished enjoyment of life, a risk of future cancer(s), reasonable fear of future cancer, any and all life complications caused by Plaintiff’s ovarian cancer, as well as the need for lifelong medical treatment, monitoring and/or medications, and fear of developing any of the above and other named health consequences. Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 6 of 30 PageID #: 45Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 9 of 36 PageID #: 110 7 29. The PRODUCTS that are the subject of this action all contain talc, also known as magnesium trisilicate. Talc is an inorganic mineral that is mined from the earth. 30. Talc is the main ingredient contained in the PRODUCTS, as the PRODUCTS are composed almost entirely of talc. 31. Plaintiff is informed and believes, and based thereon alleges that, at all relevant times alleged herein, a feasible alternative to the PRODUCTS has existed. 32. Plaintiff is informed and believes, and based thereon alleges that, Cornstarch is an organic carbohydrate that is quickly broken down by the body with no known health effects. Cornstarch powders have been sold and marketed for the same uses with nearly the same effectiveness. 33. Plaintiff is informed and believes, and based thereon alleges that, at all relevant times alleged herein, Defendants have continually advertised and marketed talc as safe for human use. 34. Plaintiff is informed and believes, and based thereon alleges that, at all relevant times, IMERYS TALC AMERICA, INC. (IMERYS) 1 has continually advertised and marketed talc as safe for human use. 35. Plaintiff is informed and believes, and based thereon alleges that, at all relevant times, IMERYS supplied customers with material safety data sheets for talc. These material safety data sheets are supposed to convey adequate health and warning information to its customers. 36. Plaintiff is informed and believes, and based thereon alleges that, historically, the PRODUCT "Johnson's Baby Powder" has been a symbol of freshness, cleanliness, and purity. 1 All allegations regarding actions taken by Imerys Talc also include actions taken while that entity was known as Luzenac America, Inc. Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 7 of 30 PageID #: 46Case 2:16-cv 063 2-LDW-ARL Document 12-3 il 02/03/ 7 10 of 36 PageID #: 111 8 37. Plaintiff is informed and believes, and based thereon alleges that, at all relevant times alleged herein, the Defendants advertised and marketed this product as the beacon of "freshness" and "comfort", eliminating friction on the skin, absorbing "excess wetness" helping keep skin feeling dry and comfortable, and "clinically proven gentle and mild." The Defendants compelled women through advertisements to dust themselves with this product to mask odors. The bottle of "Johnson's Baby Powder" specifically targets women by stating: "For you, use every day to help feel soft, fresh, and comfortable." 38. Plaintiff is informed and believes, and based thereon alleges that, at all relevant times alleged herein, Defendants advertised and marketed the product "Shower to Shower" as safe for use by women as evidenced in its slogan "A sprinkle a day keeps odor away", and through advertisements such as "Your body perspires in more places than just under your arms. Use SHOWER to SHOWER to feel dry, fresh, and comfortable throughout the day." And "SHOWER to SHOWER can be used all over your body." 39. Plaintiff Marie Lafontant used the PRODUCTS to dust her perineum for feminine hygiene purposes. This was an intended and foreseeable use of the PRODUCTS based on the advertising, marketing, and labeling of the PRODUCTS. 40. Plaintiff is informed and believes, and based thereon alleges that, in 1971, the first study was conducted that suggested an association between talc and ovarian cancer. This study was conducted by Dr. WJ Henderson and others in Cardiff, Wales. 41. Plaintiff is informed and believes, and based thereon alleges that, in 1982, the first epidemiologic study was performed on talc powder use in the female genital area. This study was conducted by Dr. Daniel Cramer and others. This study found a 92% increased risk in ovarian cancer with women who reported genital talc use. Shortly after this study was published, Dr. Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 8 of 30 PageID #: 47Case 2:16-cv 063 2-LDW-ARL Document 12-3 il 02/03/ 7 11 of 36 PageID #: 112 9 Bruce Semple of defendant JOHNSON & JOHNSON came and visited Dr. Cramer about his study. Dr. Cramer advised Dr. Semple that defendants should place a warning on its talcum powder PRODUCTS concerning the ovarian cancer risks so that women can make an informed decision about their health. 42. Plaintiff is informed and believes, and based thereon alleges that, since 1982, there have been approximately twenty-two (22) additional epidemiologic studies providing data regarding the association of talc and ovarian cancer. Nearly all of these studies have reported an elevated risk for ovarian cancer associated with genital talc use in women. 43. Plaintiff is informed and believes, and based thereon alleges that, in 1993, the United States National Toxicology Program published a study on the toxicity of non-asbestiform talc and found clear evidence of carcinogenic activity. Talc was found to be a carcinogen, with or without the presence of asbestos-like fibers. 44. Plaintiff is informed and believes, and based thereon alleges that, in response to the United States National Toxicology Program's study, the Cosmetic Toiletry and Fragrance Association (CTFA) formed the Talc Interested Party Task Force (TIPTF). Defendants JOHNSON & JOHNSON, and JOHNSON & JOHNSON CONSUMER COMPANIES, INC. were members of the CTFA and were the primary actors and contributors of the TIPTF. The stated purpose of the TIPTF was to pool financial resources of these companies in an effort to collectively defend talc use at all costs and to prevent regulation of any type over this industry. The TIPTF hired scientists to perform biased research regarding the safety of talc, members of the TIPTF edited scientific reports of the scientists hired by this group prior to the submission of these scientific reports to governmental agencies, members of the TIPTF knowingly released false information about the safety of talc to the consuming public, and used political and Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 9 of 30 PageID #: 48Case 2:16-cv 063 2-LDW-ARL Document 12-3 il 02/03/ 7 12 of 36 PageID #: 113 10 economic influence on regulatory bodies regarding talc. All of these activities have been well coordinated and planned by these companies and organizations over the past four (4) decades in an effort to prevent regulation of talc and to create confusion to the consuming public about the true hazards of talc relative to ovarian cancer. 45. Plaintiff is informed and believes, and based thereon alleges that, on November 10, 1994, the Cancer Prevention Coalition mailed a letter to then JOHNSON & JOHNSON C.B.O, Ralph Larson, informing his company that studies as far back as the 1960's " ... show conclusively that the frequent use of talcum powder in the genital area pose a serious health risk of ovarian cancer." The letter cited a recent study from Dr. Harlow of Harvard Medical School confirming this fact and quoted a portion of the study where Dr. Harlow and his colleagues discouraged the use of talc in the female genital area. The letter further stated that 14,000 women per year die from ovarian cancer and that this type of cancer is very difficult to detect and has a low survival rate. The letter concluded by requesting that JOHNSON & JOHNSON withdraw talc products from the market because the alternative of corn starch powders, or at a minimum, place warning information on its talc-based PRODUCTS about the ovarian cancer risk they pose. 46. Plaintiff is informed and believes, and based thereon alleges that, in 1996, the condom industry stopped dusting condoms with talc due to the health concerns of ovarian cancer. 47. Plaintiff is informed and believes, and based thereon alleges that, in February of 2006, the International Association for the Research of Cancer (IARC) part of the World Health Organization published a paper whereby they classified perineal use of talc based body powder as a "Group 2B" human carcinogen. IARC, which is universally accepted as the international authority on cancer issues, concluded that studies from around the world consistently found an Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 10 of 30 PageID #: 49Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 13 of 36 PageID #: 114 11 increased risk of ovarian cancer in women from perineal use of talc. IARC found that between 16-52% of women in the world were using talc to dust their perineum and found an increased risk of ovarian cancer in women talc users ranging from 30-60%. IARC concluded with this Evaluation: "There is limited evidence in humans for the carcinogenicity of perineal use of talc- based body powder." By definition "Limited evidence of carcinogenicity" means "a positive association has been observed between exposure to the agent and cancer for which a causal interpretation is considered by the Working Group to be credible, but chance, bias or confounding could not be ruled out with reasonable confidence." 48. Plaintiff is informed and believes, and based thereon alleges that, in 2006, the Canadian government under The Hazardous Products Act and associated Controlled Products Regulations classified talc as a "D2A", "very toxic", "cancer causing" substance under its Workplace Hazardous Materials Information System (WHMIS). Asbestos is also classified as "D2A". 49. Plaintiff is informed and believes, and based thereon alleges that, in 2006, Defendants’ vendor, Imerys Talc, began placing a warning on its Material Safety Data Sheets (MSDS) it provided to the Johnson & Johnson Defendants regarding the talc it sold to them to be used in the PRODUCTS. These MSDSs not only provided the warning information about the IARC classification but also included warning information regarding "States Rights to Know" and warning information about the Canadian Government's "D2A" classification of talc as well. 50. Plaintiff is informed and believes, and based thereon alleges that, Defendants had a duty to know and warn about the hazards associated with the use of the PRODUCTS. 51. Plaintiff is informed and believes, and based thereon alleges that, Defendants failed to inform consumers, customers, and end users of the PRODUCTS of a known Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 11 of 30 PageID #: 50Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 4 of 36 PageID #: 115 12 catastrophic health hazard associated with the use of the PRODUCTS. In addition, the Defendants procured and disseminated false, misleading, and biased information regarding the safety of the PRODUCTS to the public and used influence over governmental and regulatory bodies regarding talc. 52. As a direct and proximate result of the Defendants' calculated and reprehensible conduct, Plaintiff suffered catastrophic injuries and damages, namely ovarian cancer, which required surgery and treatments, as well as other severe and personal injuries which are permanent and lasting in nature, physical pain and mental anguish, including diminished enjoyment of life, a risk of future cancer(s), reasonable fear of future cancer, any and all life complications caused by Plaintiff’s ovarian cancer, as well as the need for lifelong medical treatment, monitoring and/or medications, and fear of developing any of the above and other named health consequences. EQUITABLE TOLLING OF APPLICABLE STATUTES OF LIMITATIONS 53. The running of any statute of limitation has been tolled by reason of the Defendants’ conduct. The Defendants, through their affirmative misrepresentations and omissions, actively concealed from Plaintiff the true risks associated with the PRODUCTS. 54. As a result of the Defendants’ actions, Plaintiff was unaware, and could not reasonably know or have learned through reasonable diligence that Plaintiff had been exposed to the risks alleged herein and that those risks were the direct and proximate result of Defendants’ acts and omissions. 55. Furthermore, the Defendants are estopped from relying on any statute of limitations because of their concealment of the truth, quality and nature of the PRODUCTS. The Defendants were under a duty to disclose the true character, quality and nature of the Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 12 of 30 PageID #: 51Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 15 of 36 PageID #: 16 13 PRODUCTS because this was non-public information that the Defendants had and continue to have exclusive control, and because the Defendants knew that this information was not available to the Plaintiff, their medical providers, and/or to their health facilities. 56. Defendants had the ability to and did spend enormous amounts of money in furtherance of their purpose of marketing and promoting a profitable product, notwithstanding the known or reasonably known risks. Plaintiff and medical professionals could not have afforded and could not have possibly conducted studies to determine the nature, extent and identity of related health risks, and were forced to rely on Defendants’ representations. FIRST CAUSE OF ACTION AS AGAINST THE DEFENDANTS (NEGLIGENCE) 57. Plaintiff repeats, reiterates and realleges each and every allegation of this Complaint with the same force and effect as if more fully set forth herein. 58. Defendants had a duty to Plaintiff to exercise reasonable care in the designing, researching, testing, manufacturing, marketing, supplying, promoting, packaging, sale and/or distribution of the PRODUCTS into the stream of commerce, including a duty to assure that the PRODUCTS would not cause users to suffer unreasonable, dangerous side effects such as cancer. 59. Defendants failed to exercise ordinary care and/or were reckless in designing, researching, manufacturing, marketing, supplying, promoting, packaging, sale, testing, quality assurance, quality control, and/or distribution of the PRODUCTS into interstate commerce in that Defendants knew or should have known that using the PRODUCTS caused a risk of unreasonable, dangerous side effects, including ovarian cancer. Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 13 of 30 PageID #: 52Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 16 of 36 PageID #: 117 14 60. Despite the fact that Defendants knew or should have known that the PRODUCTS were associated with and/or caused ovarian cancer, Defendants continued to market, manufacture, distribute and/or sell the PRODUCTS to consumers, including the Plaintiff. 61. Defendants knew or should have known that consumers such as the Plaintiff would foreseeably suffer injury as a result of Defendants’ failure to exercise ordinary care, as set forth above. 62. Defendants’ negligence and/or recklessness was the proximate cause of Plaintiff’s injuries, harm and economic loss which she suffered and/or will continue to suffer. 63. As a result Defendants’ negligence and/or recklessness, the Plaintiff was caused to suffer serious and dangerous side effects including ovarian cancer, which required surgery and treatments, as well as other severe and personal injuries which are permanent and lasting in nature, physical pain and mental anguish, including diminished enjoyment of life, a risk of future cancer(s), reasonable fear of future cancer, any and all life complications caused by Plaintiff’s ovarian cancer, as well as the need for lifelong medical treatment, monitoring and/or medications, and fear of developing any of the above. 64. As a result of the foregoing acts and omissions, the Plaintiff requires and/or will require more health care and services and did incur medical, health, incidental and related expenses. Plaintiff is informed, believes, and further alleges that Plaintiff will in the future be required to obtain further medical and/or hospital care, attention, and services. 65. By reason of the foregoing, Plaintiff demands judgment against each Defendant, individually, jointly and severally for compensatory damages in a sum in excess of $75,000 and Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 14 of 30 PageID #: 53Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 17 of 36 PageID #: 118 15 punitive damages, together with interest, costs of suit, attorneys’ fees and all such other and further relief as the Court deems proper. 66. The limitations on liability set forth in CPLR § 1601 do not apply to this action by reason of one or more of the exceptions set forth in CPLR § 1602. SECOND CAUSE OF ACTION AS AGAINST DEFENDANTS (STRICT PRODUCTS LIABILITY - FAILURE TO WARN) 67. Plaintiff repeats, reiterates and realleges each and every allegation of this Complaint with the same force and effect as if more fully set forth herein. 68. Defendants researched, tested, developed, designed, licensed, manufactured, packaged, labeled, distributed, sold, marketed, and/or introduced the PRODUCTS into the stream of commerce, and in the course of same, directly advertised or marketed the PRODUCTS to consumers or persons responsible for consumers, and therefore, had a duty to the Plaintiff to warn of risks associated with the use of the Product. 69. Defendants had a duty to warn of adverse reactions, which they know or have reason to know can be caused by the use of the PRODUCTS and/or are associated with the use of the PRODUCTS. 70. The PRODUCTS manufactured and/or supplied by the Defendants were defective due to inadequate post-marketing warnings and/or instructions because, after the Defendants knew or should have known of the risks of ovarian cancer from the use of the PRODUCTS, they failed to provide adequate warnings to consumers of the PRODUCTS, including Plaintiff, and continued to aggressively promote the PRODUCTS. Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 15 of 30 PageID #: 54Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 18 of 36 PageID #: 119 16 71. Due to the inadequate warning regarding ovarian cancer, the PRODUCTS were in a defective condition and unreasonably dangerous at the time that they left the control of the Defendants. 72. Defendants failed to adequately warn Plaintiff of results in studies pertaining to ovarian cancer. 73. Defendants’ failure to adequately warn Plaintiff of an ovarian cancer risk prevented Plaintiff from correctly and fully evaluating the risks and benefits of the PRODUCTS. 74. Had Plaintiff been adequately warned of the potential life-threatening side effects of the Defendants’ PRODUCTS, Plaintiff would not have purchased or used the PRODUCTS. 75. As a foreseeable and proximate result of the aforementioned wrongful acts and omissions of Defendants, Plaintiff was caused to suffer from the aforementioned injuries and damages. 76. By reason of the foregoing, Plaintiff demands judgment against each Defendant, individually, jointly and severally for compensatory damages in a sum in excess of $75,000 and punitive damages, together with interest, costs of suit, attorneys’ fees and all such other and further relief as the Court deem proper. 77. The limitations on liability set forth in CPLR § 1601 do not apply to this action by reason of one or more of the exceptions set forth in CPLR § 1602. THIRD CAUSE OF ACTION AS AGAINST THE DEFENDANTS (STRICT PRODUCTS LIABILITY - DEFECTIVE DESIGN) 78. Plaintiff repeats, reiterates and realleges each and every allegation of this Complaint with the same force and effect as if more fully set forth herein. Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 16 of 30 PageID #: 55Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 19 of 36 PageID #: 120 17 79. The PRODUCTS were expected to, and did, reach the intended consumers, handlers, and persons coming into contact with the PRODUCTS without substantial change in the condition in which they were produced, manufactured, sold, distributed, labeled, and marketed by Defendants. 80. At all times relevant, the PRODUCTS were manufactured, designed, and labeled in an unsafe, defective, and inherently dangerous condition, which was dangerous for use by the public, and, in particular, by Plaintiff. 81. The PRODUCTS as researched, tested, developed, designed, licensed, manufactured, packaged, labeled, distributed, sold, and marketed by Defendants were defective in design and formulation in that when they left the hands of the manufacturers and/or suppliers, the foreseeable risks exceeded the alleged benefits associated with the design and formulation of the PRODUCTS. 82. The PRODUCTS as researched, tested, developed, designed, licensed, manufactured, packaged, labeled, distributed, sold, and marketed by Defendants were defective in design and formulation, because when they left the hands of Defendants’ manufacturers and suppliers they were unreasonably dangerous and were also more dangerous than the ordinary consumer would expect. 83. At all times herein mentioned, the PRODUCTS were in a defective condition and were unsafe, and Defendants knew and had reason to know that the PRODUCTS were defective and inherently unsafe, especially when the PRODUCTS were used in a form and manner instructed and provided by Defendants. 84. Defendants had a duty to create a product that was not unreasonably dangerous for its normal, common, intended use. Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 17 of 30 PageID #: 56Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 20 of 36 PageID #: 121 18 85. At the time of Plaintiff’s use of the PRODUCTS, the PRODUCTS were being used for their intended purpose, and in a manner normally intended. 86. Defendants researched, tested, developed, designed, licensed, manufactured, packaged, labeled, distributed, sold and marketed a defective product that caused an unreasonable risk to the health of consumers, and to Plaintiff in particular, and Defendants are therefore strictly liable for the injuries and damages sustained by Plaintiff. 87. At the time Defendants’ products left their control, there was a practical, technically feasible, and safer alternative design that would have prevented the harm without substantially impairing the reasonably anticipated or intended function of the PRODUCTS. 88. Plaintiff could not, by the reasonable exercise of care, have discovered the PRODUCTS defects and perceived its danger. 89. The defects in Defendants’ PRODUCTS were substantial and contributing factors in causing Plaintiff’s injuries. 90. As a foreseeable, direct, and proximate result of the aforementioned wrongful acts and omissions of Defendants, Plaintiff was caused to suffer from the aforementioned injuries and damages. 91. Due to the unreasonably dangerous condition of the PRODUCTS, Defendants are strictly liable to Plaintiff. 92. By reason of the foregoing, Plaintiff demands judgment against each Defendant, individually, jointly and severally for compensatory damages in a sum in excess of $75,000 and punitive damages, together with interest, costs of suit, attorneys’ fees and all such other and further relief as the Court deems proper. Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 18 of 30 PageID #: 57Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 21 of 36 PageID #: 122 19 93. The limitations on liability set forth in CPLR § 1601 do not apply to this action by reason of one or more of the exceptions set forth in CPLR § 1602. FOURTH CAUSE OF ACTION AS AGAINST THE DEFENDANTS (BREACH OF EXPRESS WARRANTY) 94. Plaintiff repeats, reiterates and realleges each and every allegation of this Complaint with the same force and effect as if more fully set forth herein. 95. Defendants expressly warranted that the PRODUCTS were safe for their intended use and as otherwise described in this complaint. The PRODUCTS did not conform to these express representations, including, but not limited to, the representation that it did not have high and/or unacceptable levels of life-threatening side effects like ovarian cancer. 96. The express warranties represented by the Defendants were a part of the basis for Plaintiff’s use of the PRODUCTS and Plaintiff relied on these warranties in deciding to use the PRODUCTS. 97. At the time of the making of the express warranties, the Defendants had knowledge of the purpose for which the PRODUCTS were to be used, and warranted same to be in all respects safe, effective and proper for such purpose. 98. The PRODUCTS do not conform to these express representations because the PRODUCTS are not safe or effective and may produce serious side effects, including among other things ovarian cancer, degrading Plaintiff’s health, and shrinking her life expectancy. 99. As a result of the foregoing breach of express warranty the Plaintiff was caused to suffer ovarian cancer, which required surgery and treatments, as well as other severe and personal injuries which are permanent and lasting in nature, physical pain and mental anguish, including diminished enjoyment of life, a risk of future cancer(s), reasonable fear of future Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 19 of 30 PageID #: 58Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 22 of 36 PageID #: 123 20 cancer, any and all life complications caused by Plaintiff’s ovarian cancer, as well as the need for lifelong medical treatment, monitoring and/or medications, and fear of developing any of the above and other named health consequences. 100. By reason of the foregoing, Plaintiff has been severely and permanently injured, and will require more constant and continuous medical monitoring and treatment than prior to her use of Defendants’ PRODUCTS. 101. As a result of the foregoing acts and omissions the Plaintiff requires and/or will require more health care and services and did incur medical, health, incidental and related expenses. Plaintiff is informed and believes and further alleges that Plaintiff will in the future be required to obtain further medical and/or hospital care, attention, and services. 102. By reason of the foregoing, Plaintiff demands judgment against each Defendant, individually, jointly and severally for compensatory damages in a sum in excess of $75,000 and punitive damages, together with interest, costs of suit, attorneys’ fees and all such other and further relief as the Court deem proper. 103. The limitations on liability set forth in CPLR § 1601 do not apply to this action by reason of one or more of the exceptions set forth in CPLR § 1602. FIFTH CAUSE OF ACTION AS AGAINST THE DEFENDANTS (BREACH OF IMPLIED WARRANTY FOR A PARTICULAR PURPOSE) 104. Plaintiff repeats, reiterates and realleges each and every allegation of this Complaint with the same force and effect as if more fully set forth herein. 105. At all times herein mentioned, the Defendants manufactured, compounded, portrayed, distributed, recommended, merchandized, advertised, promoted and sold the PRODUCTS. Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 20 of 30 PageID #: 59Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 23 of 36 PageID #: 124 21 106. The Defendants impliedly represented and warranted to the users of the PRODUCTS that they were safe and fit for the particular purpose for which said products were to be used. 107. These representations and warranties aforementioned were false, misleading, and inaccurate in that the PRODUCTS were unsafe, degraded Plaintiff’s health and shortened her life expectancy. 108. Plaintiff relied on the implied warranty of fitness for a particular use and purpose. 109. Plaintiff reasonably relied upon the skill and judgment of Defendants as to whether the PRODUCTS were safe and fit for their intended use. 110. The PRODUCTS were injected into the stream of commerce by the Defendants in a defective, unsafe, and inherently dangerous condition and the products and materials were expected to and did reach users, handlers, and persons coming into contact with said products without substantial change in the condition in which they were sold. 111. Defendants breached the aforesaid implied warranty, as the PRODUCTS were not fit for their intended purposes and uses. 112. As a result of the foregoing breach of warranty, the Plaintiff was caused to suffer serious and dangerous side effects including ovarian cancer, which required surgery and treatments, as well as other severe and personal injuries which are permanent and lasting in nature, physical pain and mental anguish, including diminished enjoyment of life, a risk of future cancer(s), reasonable fear of future cancer, any and all life complications caused by Plaintiff’s ovarian cancer, as well as the need for lifelong medical treatment, monitoring and/or medications, and fear of developing any of the above and other named health consequences. Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 21 of 30 PageID #: 60Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 24 of 36 PageID #: 125 22 113. As a result of the foregoing acts and omissions the Plaintiff requires and/or will require more health care and services and did incur medical, health, incidental and related expenses. Plaintiff is informed and believes and further alleges that Plaintiff will in the future be required to obtain further medical and/or hospital care, attention, and services. 114. By reason of the foregoing, Plaintiff demands judgment against each Defendant, individually, jointly and severally for compensatory damages in a sum in excess of $75,000 and punitive damages, together with interest, costs of suit, attorneys’ fees and all such other and further relief as the Court deems proper. 115. The limitations on liability set forth in CPLR § 1601 do not apply to this action by reason of one or more of the exceptions set forth in CPLR § 1602. SIXTH CAUSE OF ACTION AS AGAINST THE DEFENDANTS (BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY) 116. Plaintiff repeats, reiterates and realleges each and every allegation of this Complaint with the same force and effect as if more fully set forth herein. 117. Defendants manufactured, compounded, portrayed, distributed, recommended, merchandized, advertised, promoted and sold the PRODUCTS. 118. Defendants marketed, sold and distributed the PRODUCTS and knew and promoted the use for which the PRODUCTS were being used by Plaintiff and impliedly warranted to Plaintiff that the PRODUCTS were of merchantable quality and fit for the ordinary purpose for which they was intended. 119. These representations and warranties aforementioned were false, misleading, and inaccurate in that the PRODUCTS were unsafe, degraded Plaintiff’s health and shortened her life expectancy. Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 22 of 30 PageID #: 61Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 5 of 36 PageID #: 26 23 120. Plaintiff reasonably relied on the skill, expertise and judgment of the Defendants and its representations as to the fact that the PRODUCTS were of merchantable quality. 121. The PRODUCTS manufactured and supplied by the Defendants were not of merchantable quality, as warranted by the Defendants in that the PRODUCTS had dangerous and life threatening side effects and were thus not fit for the ordinary purpose for which they were intended. 122. As a direct and proximate result of the foregoing, Plaintiff was caused bodily injury, pain and suffering and economic loss. 123. As a result of the foregoing acts and omissions, the Plaintiff was caused to suffer serious and dangerous side effects including ovarian cancer, which required surgery and treatments, as well as other severe and personal injuries which are permanent and lasting in nature, physical pain and mental anguish, including diminished enjoyment of life, a risk of future cancer(s), reasonable fear of future cancer, any and all life complications caused by Plaintiff’s ovarian cancer, as well as the need for lifelong medical treatment, monitoring and/or medications, and fear of developing any of the above and other named health consequences. 124. As a result of the foregoing acts and omissions the Plaintiff requires and/or will require more health care and services and did incur medical, health, incidental and related expenses. Plaintiff is informed and believes and further alleges that Plaintiff will in the future be required to obtain further medical and/or hospital care, attention, and services. 125. By reason of the foregoing, Plaintiff demands judgment against each Defendant, individually, jointly and severally for compensatory damages in a sum in excess of $75,000 and punitive damages, together with interest, costs of suit, attorneys’ fees and all such other and further relief as the Court deems proper. Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 23 of 30 PageID #: 62Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 26 of 36 PageID #: 127 24 126. By reason of the foregoing, Plaintiff is entitled to compensatory and punitive damages in a sum that exceeds the jurisdictional limits of all lower courts that might otherwise have jurisdiction. 127. The limitations on liability set forth in CPLR § 1601 do not apply to this action by reason of one or more of the exceptions set forth in CPLR § 1602. SEVENTH CAUSE OF ACTION AS AGAINST THE DEFENDANTS (VIOLATION OF THE NEW YORK GENERAL BUSINESS LAW SECTION 349) 128. Plaintiff repeats, reiterates and realleges each and every allegation of this Complaint with the same force and effect as if more fully set forth herein. 129. Defendants have intentionally and wrongfully represented deceptive, inaccurate, false and misleading material information as to the safety of the PRODUCTS to Plaintiff and other consumers. 130. Defendants knew or reasonably should have known that the PRODUCTS carried the risk of serious adverse effects, including but not limited to ovarian cancer, to its intended users, including Plaintiff. 131. Defendants failed to disclose material facts in the conduct of trade or commerce in that they did not disclose the risk of serious adverse effects to the intended users of the PRODUCTS. 132. Reasonable consumers, including Plaintiff, were injured by Defendants’ unfair and deceptive acts. 133. By reason of the foregoing, Plaintiff was caused bodily injury, pain, suffering and economic loss. Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 24 of 30 PageID #: 63Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 27 of 36 PageID #: 128 25 134. As a direct and proximate result of Defendants’ conduct, Plaintiff has suffered actual damages and request an award of damages against Defendants, as authorized by New York General Business Law § 349, et seq. Plaintiff is entitled to statutory damages, costs and reasonable attorney’s fees, plus disgorgement of any profits Defendants earned as a result of their violation of the law. EIGHTH CAUSE OF ACTION AS AGAINST THE DEFENDANTS (FRAUD AND FRAUDULENT CONCEALMENT) 135. Plaintiff repeats, reiterates and realleges each and every allegation of this Complaint with the same force and effect as if more fully set forth herein. 136. Defendants made material representations and material omissions and/or concealments to Plaintiff and to the general public regarding the safety of the PRODUCTS. 137. Defendants made material representations by conducting a sales and marketing campaign to promote the sale of the PRODUCTS and deceive the Plaintiff and the general public as to the health risks and consequences of the use of the PRODUCTS, including, but not limited to, the following false, deceptive, misleading, and untruthful advertisements, public statements, marketing campaigns, and promotions: a. In failing to warn the Plaintiff of the hazards associated with the use of the PRODUCTS; b. In failing to properly test their products to determine adequacy and effectiveness or safety measures, if any, prior to releasing the PRODUCTS for consumer use; c. In failing to properly test their products to determine the increased risk of ovarian cancer during the normal and/or intended use of the PRODUCTS; Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 25 of 30 PageID #: 64Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 28 of 36 PageID #: 129 26 d. In failing to inform ultimate users, such as the Plaintiff, as to the safe and proper methods of handling and using the PRODUCTS; e. In failing to remove the PRODUCTS from the market when the Defendants knew or should have known the PRODUCTS were defective; f. In failing to instruct the ultimate users, such as the Plaintiff, as to the methods for reducing the type of exposure to the PRODUCTS which caused increased risk of ovarian cancer; g. In failing to inform the public in general and the Plaintiff in particular of the known dangers of using the PRODUCTS for dusting the perineum; h. In failing to advise users how to prevent or reduce exposure that caused increased risk for ovarian cancer; i. In marketing and labeling the PRODUCTS as safe for all uses despite knowledge to the contrary; j. In failing to act like a reasonably prudent company under similar circumstances. 138. Defendants made these material representations, which also included omissions of material fact, knowing that the PRODUCTS were not safe, fit, and effective for use as intended. Furthermore, Defendants were aware that the use of the PRODUCTS were hazardous to health, and that the PRODUCTS carry a significant propensity to cause serious injuries to users including, but not limited to, the injuries suffered by Plaintiff as alleged herein. 139. Defendants intentionally concealed and suppressed the true facts concerning the PRODUCTS with the intent to defraud the Plaintiff, other consumers, and the public in general, in that Defendants knew that the Plaintiff would not have used the PRODUCTS if she had known the true facts concerning the risks and dangers of the PRODUCTS. Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 26 of 30 PageID #: 65Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 29 of 36 PageID #: 130 27 140. Defendants knew or should have known that their representations were false or misleading and/or knew that Defendants were concealing and/or omitting material information from the Plaintiff and the public at large. 141. In addition to making false and misleading material representations to the Plaintiff and the general public, Defendants also fraudulently concealed and/or intentionally omitted material information, including, but not limited to, the following: a. Defendants knew of the unreasonably high risk of ovarian cancer posed by the PRODUCTS before manufacturing, marketing, distributing and/or selling the PRODUCTS, yet purposefully proceeded with such action; b. Despite their knowledge of the high risk of ovarian cancer associated with the PRODUCTS, Defendants affirmatively minimized this risk through marketing and promotional efforts and product labeling; c. Through the actions outlined above, Defendants expressed a reckless indifference to the safety of users of the PRODUCTS, including Plaintiff. Defendants' conduct, as described herein, knowing the dangers and risks of the PRODUCTS, yet concealing and/or omitting this information, in furtherance of their conspiracy and concerted action was outrageous because of Defendants' evil motive or a reckless indifference to the safety of users of the PRODUCTS. 142. Defendants had sole access to material facts concerning the defective nature of the PRODUCTS and its propensity to cause serious and dangerous side effects, including ovarian cancer, to persons who used the PRODUCTS, including Plaintiff. Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 27 of 30 PageID #: 66Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 30 of 36 PageID #: 131 28 143. Defendants’ misrepresentations, concealments and omissions of material facts were made purposefully, willfully, wantonly, and/or recklessly in order to mislead and to induce Plaintiff and the general public to purchase and use the PRODUCTS. 144. Plaintiff had no way to determine the truth behind Defendants’ false and/or misleading statements, concealments and omissions surrounding the PRODUCTS, and reasonably relied on false and/or misleading facts and information disseminated by Defendants, which included Defendants’ omissions of material facts in which Plaintiff had no way to know were omitted. 145. Plaintiff justifiably relied on the false and/or misleading statements made by Defendants and relied on Defendants’ statements without knowledge of the falsity of the statements and the omissions of material facts contained therein. Defendants were in a position to disseminate information regarding the efficacy and safety of the PRODUCTS and Plaintiff was, justifiably, placed in a position to receive and rely on this information in considering whether to use the PRODUCTS. 146. Plaintiff and the general public justifiably relied upon Defendants’ material misrepresentations, including the omissions contained therein, when making the decision to dispense, provide, accept, purchase, and/or use the PRODUCTS. Defendants, as was intended by their material misrepresentations and omissions, induced Plaintiff and the general public to dispense, provide, accept, purchase, and/or use the PRODUCTS. 147. As a direct and proximate result of the above-stated false representations by Defendants, the Plaintiff was caused to suffer serious and dangerous side effects including ovarian cancer, which required surgery and treatments, as well as other severe and personal injuries which are permanent and lasting in nature, physical pain and mental anguish, including Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 28 of 30 PageID #: 67Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 31 of 36 PageID #: 132 29 diminished enjoyment of life, a risk of future cancer(s), reasonable fear of future cancer, any and all life complications caused by Plaintiff’s ovarian cancer, as well as the need for lifelong medical treatment, monitoring and/or medications, and fear of developing any of the above and other named health consequences. PRAYER FOR RELIEF WHEREFORE, Plaintiff demands judgment against the Defendants on each of the above-referenced claims and Causes of Action as follows: 1. Awarding compensatory damages to Plaintiff for past and future damages, including but not limited to pain and suffering for severe and permanent personal injuries sustained by the Plaintiff, health care costs, medical monitoring, together with interest and costs as provided by law; 2. Punitive and/or exemplary damages for the wanton, willful, fraudulent, reckless acts of the Defendants who demonstrated a complete disregard and reckless indifference for the safety and welfare of the general public and to the Plaintiff in an amount sufficient to punish Defendants and deter future similar conduct; 3. Awarding Plaintiff attorney’s fees; 4. Awarding Plaintiff the costs of these proceedings; and 5. Such other and further relief as this Court deems just and proper. DEMAND FOR JURY TRIAL Plaintiff hereby demands trial by jury as to all issues. Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 29 of 30 PageID #: 68Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 32 of 36 PageID #: 133 30 Dated: November ___, 2016 By: __________________________________________ JONATHAN M. SEDGH (JMS-9395) WEITZ & LUXENBERG, P.C. Attorneys for Plaintiff 700 Broadway New York, New York 10003 Phone: (212) 558-5500 Facsimile: (212) 363-2721 Case 2:16-cv-06362-LDW-ARL Document 1 Filed 11/16/16 Page 30 of 30 PageID #: 69Case 2:16-cv-063 2-LDW-ARL Document 12-3 Filed 02/03/17 Page 33 of 36 PageID #: 134 Exhibit 2 Affidavit of Patrick Joseph Downey Case 2:16-cv-06362-LDW-ARL Document 12-3 Filed 02/03/17 Page 34 of 36 PageID #: 135 STATE OF MONTANA COUNTY OF GALLATIN AFFIDAVIT OF PATRICK JOSEPH DOWNEY I, Patrick Joseph Downey, being over the age of 18, and under no legal disability, and being duly sworn, state as follows 1. I am the Director of Engineering and Quality for Imerys Talc America, Inc. 2. I have personal knowledge of the facts stated in this Affidavit and would be competent to testify to them if called as a witness. These facts are true and correct. 3. I am responsible for managing a team of engineers engaged in research, development of new talc processes and applications, and implementation of capital projects at facilities across North America. I am familiar with the existing and historical facilities of Imerys Talc America, Inc. 4. My office is located in Three Forks, Montana. 5. Imerys Talc America, Inc. is a Delaware corporation with its principal place of business in California. 6. Imerys Talc America, Inc. is not a resident of New York. 7. Imerys Talc America., Inc. does not own or possess any real property in New York. 8. Imerys Talc America., Inc. has no offices located in New York, nor does it maintain operations in New York. 9. Imerys Talc America., Inc. has no address in New York. 10. Imerys Talc America., Inc. has no telephone number in New York. 11. Imerys Talc America., Inc. has no bank accounts in New York. 1 Case 2:16-cv-06362-LDW-ARL Document 12-3 Filed 02/03/17 Page 35 of 36 PageID #: 136 Patric Joseph State of County of Notary Public 12. None of the officers of Imerys Talc America., Inc. reside or have offices in New York. 13. No records or documents expected to be produced by Imerys Talc America., Inc. in this action are located or regularly stored in New York. 14. Imerys Talc America, Inc. does not mine talc in New York. 15. Imerys Talc America., Inc. does not directly sell talc to the Johnson & Johnson companies ("J&J") in New York. 16. Imerys Talc America., Inc. does not directly ship talc to J&J in New York. 17. Imerys Talc America., Inc. does not directly distribute talc to J&J in New York. FURTHER AFFIANT SAYETH NAUGHT. The foregoing Affidavit was subscribed and sworn to before me this '),3 day of June, 2016. CONNIE " Notary F417tiiP for the State, of Montana Fielciing at: SEA 14,.T Throe Forks, Montana •;i..•••••''' My Commission Expires: r'd‘o January 15, 2020 My commission expires: GLYI / 151 d)Od\O Case 2:16-cv-06362-LDW-ARL Document 12-3 Filed 02/03/17 Page 36 of 36 PageID #: 137 1298902 v1 Mark K. Silver COUGHLIN DUFFY LLP 350 Mount Kemble Avenue Morristown, NJ 07962 (973) 267-0058 Attorneys for Defendant Imerys Talc America, Inc. f/k/a Luzenac America Inc. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK MARIE LAFONTANT, Plaintiff, v. JOHNSON AND JOHNSON; JOHNSON & JOHNSON CONSUMER COMPANIES, INC.; and IMERYS TALC AMERICA, INC. Defendant. Civil Action No. 2:16-cv-06362 (LDW) (ARL) ORDER ON DEFENDANT IMERYS TALC AMERICA’S RULE 12(b)(2)MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION THIS MATTER having been brought before the Court by way of motion of Coughlin Duffy LLP, counsel for defendant Imerys Talc America, Inc. (“Defendant”), for an Order dismissing Plaintiff’s Complaint for failure lack of jurisdiction; and the Court having considered the papers submitted; and the Court having heard the arguments of counsel, if any; and for good cause shown; IT IS ORDERED that the Complaint of Plaintiff MARIE LAFONTANT is hereby dismissed in its entirety without prejudice. ____________________________________, J.S.C. Honorable Leonard D. Wexler, U.S.D.J [ ] Opposed [ ] Unopposed Case 2:16-cv-06362-LDW-ARL Document 12-4 Filed 02/03/17 Page 1 of 1 PageID #: 138