Products Liability Law Daily Wrap Up, JURISDICTION—ASBESTOS—E.D. Ark.: Arkansas mesothelioma case against talc supplier dismissed for lack of jurisdiction, (Sep 14, 2020)

By David Yucht, J.D.

An Arkansas resident alleged that his use of talcum powder contributed to his developing mesothelioma.

A federal court in Arkansas found that it did not have personal jurisdiction over an out-of-state talc supplier that did not have minimum contacts with the forum state. The fact that this corporation provided talc to another company that incorporated the talc into consumer products that were sold in Arkansas was insufficient to establish jurisdiction. Consequently, a products liability suit brought by a mesothelioma victim was dismissed without prejudice as to the talc provider (Kimmons v. AutoZone, Inc., September 11, 2020, Rudofsky, L.).

Cyprus Mines is a business incorporated in Delaware with its principal place of business in Arizona. Cyprus Mines is a major supplier of talc to Johnson & Johnson, which uses the talc in the manufacture of talcum powder. Cyprus Mines knew that Johnson & Johnson sold talc-containing products across the United States, including in Arkansas. There have been reports that talc, which is mined from the ground, may be cross-contaminated with asbestos during the mining process. An Arkansas resident, who had been a regular user of Johnson & Johnson’s talcum powder, was diagnosed with mesothelioma. He alleged that his use of this product contributed to his developing this disease. He filed a products liability suit against 11 entities, including Cyprus Mines. Cyprus Mines moved to dismiss for lack of jurisdiction.

Personal jurisdiction. The court found that it could not constitutionally assert jurisdiction over the talc provider based solely upon the corporation’s providing talc to another company which incorporated the talc into consumer products that were sold in the forum state because the talc provider undertook no suit-related activities directed toward the forum. Based on the pleadings filed in this case, there was nothing to suggest that Cyprus Mines mined, processed, or sold talc in Arkansas. It did not appear that Cyprus Mines had any ability to influence what Johnson & Johnson did with the talc that it purchased, and Cyprus Mines was not shown to have influenced where Johnson & Johnson sold its consumer products. Additionally, there was nothing demonstrating that Cyprus Mines advertised in Arkansas or was part of any marketing effort for Johnson & Johnson products directed towards Arkansas.

The Eighth Circuit employs a five-part test for determining whether an entity has minimum contacts needed for a forum state to exercise jurisdiction over it. Among the factors to be considered are "the nature and quality" of forum state contacts, as well as the relationship of those contacts to the subject lawsuit. Here, the court found no contacts between Arkansas and Cyprus Mines other than the fact that the talc it sold to Johnson & Johnson was an ingredient in a product that Johnson & Johnson sold throughout the U.S., including Arkansas. This contact was insufficient to establish jurisdiction.

The case is No. 4:19-cv-00876-LPR.

Attorneys: Dana C. Simon (Simon Greenstone Panatier, PC) for Thomas Kimmons and Gicelia Swopes. Scott Andrew Irby (Wright, Lindsey & Jennings LLP) for AutoZone Inc. Ronald D. Harrison (Ledbetter, Cogbill, Arnold and Harrison, LLP) for BorgWarner Morse TEC, LLC. Micheal L. Alexander (Barber Law Firm PLLC) for Cyprus Amax Minerals Co.

Companies: AutoZone Inc; BorgWarner Morse TEC, LLC; Cyprus Amax Minerals Co.

Cases: CourtDecisions JurisdictionNews AsbestosNews SCLIssuesNews GCNNews HouseholdProductsNews ArkansasNews