In Re: TALC Product Liability Litigation ( 2018 )


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  • IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
    IN RE:
    C.A. No. Nl 7C-O3-054 TAL
    TALC PRODUCT
    LIABILITY LITIGATION
    Submitted: July 30, 2018
    Decided: September 10, 2018
    OPINION
    Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc. ’s
    Motion to Dz'smiss Based on Lack ofPersonal Jurisdiction.
    GRANTED.
    Defena’ants Johnson & Johnson and Johnson & Johnson Consumer Inc. 's
    Motionfor a Protective Order to Quash Jurisdictional Discovery Requests.
    GRANTED.
    R. Joseph Hrubiec, Esquire and W. Steven Berman, Esquire, NAPOLI SHKOLNIK,
    LLC, Wilmington, Delaware. Hunter J. Shkolnik, Esquire, NAPOLI SHKOLNIK,
    PLLC, Melville, NeW York. Attorneys for Plaintiffs.
    Raeann Warner, Esquire, JACOBS & CRUMPLAR, P.A., Wilmington, Delaware.
    Attorney for Plaintiffs.
    Michael P. Kelly, Esquire and Daniel J. Brown, Esquire, McCARTER & ENGLISH,
    LLP, Wilmington, Delaware. Jessica D. Miller, Esquire, SKADDEN, ARPS,
    SLATE, MEAGHER & FLOM, LLP, Washington, D.C. (argued). Attorneys for
    Defendants Johnson & Johnson and Johnson & Johnson Consumer Inc. (f/k/a
    Johnson & Johnson Consumer Companies, Inc.).
    BUTLER, J.
    INTRODUCTION
    The Court is here presented with a host of Complaints, all to the same effect.
    Each alleges that Defendants, in various capacities, Were involved in the production,
    marketing, and sale of talc, specifically in the form of baby powder. It is alleged
    that this product, advertised as smooth and soothing to babies, causes cancer in adult
    Women. While multiple Defendants are named, only Johnson & Johnson and its
    subsidiary, Johnson & Johnson Consumer Inc. (f/k/a Johnson & Johnson Consumer
    Companies, Inc.) (collectively, “JNJ”), have moved to dismiss the claims brought
    by nonresident Plaintiffs for lack of personal jurisdiction JNJ also moves for a
    protective order, seeking to foreclose the nonresident Plaintiffs from taking
    “jurisdictional discovery.” After careful consideration, the Court finds that it is
    Without personal jurisdiction over JNJ as to the claims of the nonresident Plaintiffs.
    The Court further finds that the nonresident Plaintiffs have not set forth a plausible
    basis to believe that limited jurisdictional discovery Will establish the requisite
    jurisdiction, and the Court Will therefore also grant JNJ’s Motion for a Protective
    Order.
    BACKGROUND
    These complaints allege that women who use talcum powder in their perineal
    area over a period of time contracted ovarian cancer. Talc was manufactured,
    marketed, and sold by the defendants as baby powder.
    Lawsuits making similar allegations have been filed in multiple jurisdictions
    across the United States. l In one such case in Missouri, Johnson & Johnson moved
    to dismiss a claim brought by a nonresident of Missouri on personal jurisdiction
    grounds. The motion to dismiss was denied by the trial court. But after a jury
    awarded the plaintiff $72 million in damages, a Missouri appellate court reversed
    the trial court’s personal jurisdiction ruling, effectively wiping out the verdict.2
    Over 200 talc lawsuits have been filed in Delaware. The Plaintiffs in these
    suits hail from all over the country.3 Two law firms represent all of the Plaintiffs in
    l See Tiffany Hsu, Risk on All Sides as 4,800 Women Sue Over Johnson’s Baby Powder and
    Cancer, N.Y. Times (Sept. 28, 2017), illlp.~_~':t“/w\-v\-\-'.iwliliies.com;"£lll?fU‘J!ES»’busincssz"|ohnson-
    iind-ioIm.~;mi-bailw»lalc.'un'\-|)owclcr-Iaiw:»‘uitz~'.hlm|; Wornan Gets $417 Million Verdict From
    Johnson & Johnson in Baby Powder Cancer Suit, NBCNews.com (Aug. 22, 2017),
    Ii| l|)s:t_fi\-'\\-".-v.nbcnews.co\n!hcaill|ifhci-i|1Ii-no\-v.~';;’\-voman-gcl.~';-=l l 7~million-vci'tlici-iohnson~
    iohnsol1~baby-po\-\»dcr-ciinccr-ii?‘~}¢l??`1; In re Johnson & Johnson Talcum Powder Cases, No.
    BC628228, 
    2017 WL 4780572
     (Cal. Super. Ct. Oct. 20, 2017).
    2 See Estate ofFox v. Johnson & Johnson, 
    539 S.W.3d 48
     (Mo. Ct. App. 2017), rev ’g and vacating
    
    2016 WL 799325
     (Feb. 26, 2016), reh ’g and/or transfer denied (Dec. 19, 2017), transfer
    denied (Mar. 6, 2018).
    3 See, e.g., Compl. 11 1, Weldon v. Johnson & Johnson, C.A. No. N18C-01-137 (Del. Super. filed
    Jan. 12, 2018) (Trans. I.D. 61563601) (Michigan); Compl. 11 1, Chappell v. Johnson & Johnson,
    C.A. No. N17C-12-294 (Del. Super. filed Dec. 21, 2017) (Trans. I.D. 61494847) (New York);
    Compl. 1[ 1, Anderson v. Johnson & Johnson, C.A. No. N17C-10-338 (Del. Super. filed Oct. 26,
    2017) (Trans. I.D. 61288868) (Louisiana); Compl. 11 1, Chubb v. Johnson & Johnson, C.A. No.
    3
    these Delaware cases. The Complaints are substantively quite similar in their factual
    allegations and legal theories.
    A. Plaintiffs’ Allegations
    Plaintiffs allege that JNJ and the other named Defendants produced, marketed,
    sold, and shipped talc-based products over a number of years. They claim that this
    production and marketing persisted despite convincing evidence developed by
    studies that talc was associated with ovarian cancer when used by women on the
    perineum. Plaintiffs allege that JNJ and the other Defendants, acting individually,
    collectively and through industry councils and related lobbying efforts, mounted a
    concerted effort to avoid warning the public of the dangers associated with the use
    of talc. According to Plaintiffs, JNJ continued its sales and marketing campaign of
    talc products despite being explicitly advised of its dangers from several creditable
    sources.
    B. JNJ’s Motion to Dismiss
    JNJ has not filed an answer to the Complaint, arguing instead that the Court
    should dismiss the Complaints of nonresident plaintiffs because the Court has
    neither “general” nor “specific” jurisdiction over JNJ. Plaintiffs also served JNJ
    N17C-04-102 (Del. Super. filed Apr. 11, 2017) (Trans. I.D. 60455438) (Tennessee); Compl. 11 1,
    Gordon v. Johnson & Johnson, C.A. No. N16C-10-237 (Del. Super. filed Oct. 28, 2016) (Trans.
    I.D. 59762614) (North Carolina); Compl. 11 1, Worth v. Johnson & Johnson, C.A. No. N16C-10-
    239 (Del. Super. filed Oct. 28, 2016) (Trans. I.D. 59762787) (Mississippi).
    4
    with a number of “jurisdictional discovery” requests intended to support the Court’s
    exercise of personal jurisdiction over JNJ. Rather than responding to the discovery,
    JNJ has filed a Motion for a Protective Order, seeking exemption from responding
    to the discovery demand because, as JNJ sees it, discovery will not yield facts that
    would support jurisdiction in Delaware.
    C. Procedural History
    At the Court’s request, Plaintiffs’ counsel first filed their opposition to JNJ’s
    Motion for a Protective Order. While this issue was under consideration, the United
    States Supreme Court handed down its decision in Bristol-Myers Squibb Co. v.
    Superior Court of California, San Francz'sco Coanty.4 The Court then invited the
    parties to file supplementary briefs on the impact of that decision.
    After reviewing the briefing at that stage, it became clear that the jurisdictional
    discovery issue was completely intertwined with the question of jurisdiction itself.
    Plaintiffs then obliged the Court’s request to respond to the Motion to Dismiss as
    well.5
    
    4137 S. Ct. 1773
     (U.S.) 2017.
    5 Of the roughly 200 cases that have been filed in Delaware, a scant few_ approximately 12_-
    originally named an additional entity, OMJ Pharmaceuticals, lnc. (“OMJ”). This entity is a
    Johnson & Johnson subsidiary that is incorporated in Delaware. Shortly after it was named as a
    Defendant for the first time in 2016, OMJ moved to dismiss the case against it, but not for lack of
    jurisdiction. Rather, OMJ sought dismissal on grounds that it had simply been improperly named.
    Plaintiffs did not respond to the motion to dismiss. Much later, after the filing of many additional
    5
    STANDARD OF REVIEW
    Allegations in a complaint may be made broadly and need not describe the
    basis upon which the Court has jurisdiction.6 But on a motion to dismiss for lack of
    personal jurisdiction under Superior Court Civil Rule 12(b)(2), the plaintiff bears the
    burden to make out a prima facie case establishing jurisdiction over a nonresident
    defendant.7 A prima facie case requires the “production of enough evidence to allow
    the fact-trier to infer the fact at issue and rule in the party’s favor.”8 The burden of
    establishing a defendant’s amenability to suit is not merely restricted to the
    allegations contained in the complaint.9 Rather, extra-pleading material may be used
    to supplement the complaint and establish jurisdiction.l° Therefore, in considering
    Complaints and Amended Complaints, OMJ was ultimately named as a Defendant in a larger
    number of the cases that are currently pending before the Court.
    As discussed below, because OMJ is incorporated in Delaware, it is subject to the general
    jurisdiction of the Court. OMJ’s arguments for dismissal are fundamentally different from JNJ’s
    jurisdictional arguments, and the Court believes that disposition of one is not dependent upon
    disposition of the other. The Court will therefore address OMJ’s pending motion to dismiss only
    after it is fully briefed.
    6 See Super. Ct. Civ. R. 8(a).
    7 Republic Bus. Credit, LLC v. Metro Design USA, LLC, 
    2016 WL 3640349
    , at *4 (Del. Super.
    June 29, 2016) (citing Crescent/Mach 1 Partners, L.P. v. Turner, 
    846 A.2d 963
    , 974 (Del. Ch.
    2000)).
    8 Baier v. Upper New York Inv. Co, 
    2018 WL 1791996
    , at *5 (Del. Ch. Apr. 16, 2018) (citing
    Prz`ma facie case, Black’s Law Dz`ctionary (10th ed. 2014)).
    9 Yu v. GSM Nation, LLC, 
    2018 WL 2272708
    , at *5 (Del. Super. Apr. 24, 2018) (citing Hart
    Holding Co. v. Drexel Burnharn Lambert Inc., 
    593 A.2d 535
    , 538-39 (Del. Ch. 1991)).
    10 
    Id.
     (citing Hart Holdz'ng Co., 
    593 A.2d at
    53 8-39.)
    6
    a motion to dismiss under Rule 12(b)(2), the Court is not bound by the pleadings and
    may consider other matters such as affidavits and briefs of the parties in making
    determinations regarding personal jurisdiction.1l
    Ordinarily, when jurisdiction is questioned, the Court will permit
    jurisdictional discovery.12 But when the record plainly shows that such discovery
    will yield nothing to substantiate jurisdiction in the forum, discovery will be
    foreclosed.13 A plaintiff is not entitled to jurisdictional discovery where the assertion
    of personal jurisdiction “lacks the minimal level of plausibility needed to permit
    discovery to go forward.”14
    ANALYSIS
    I. JNJ’s Motion to Dismiss Based on Lack of Personal Jurisdiction
    The due process concerns relating to the law of personal jurisdiction have
    been evolving in recent years. Because of the importance of this evolution in this
    analysis, a close examination of the recent jurisprudence is warranted.
    11 See Crescent/Mach 1 Partners, L.P. , 
    846 A.2d at 974
     (Del. Ch. 2000); Haisfz`eld v. Cruver, 
    1994 WL 497868
    , at *3 (Del. Ch. Aug. 25, 1994).
    12 Hart Holding Co., 
    593 A.2d at 539
    .
    13 Id.; see also T ell v. Roman Catholic Bishops of Diocese of Allentown, 
    2010 WL 1691199
    , at *7
    (Del. Super. Apr. 26, 2010) (“A court may also deny jurisdictional discovery when it is apparent
    that the requested discovery will add nothing to the jurisdictional analysis.”).
    14 In re Asbestos Litig. , 
    2016 WL 7404547
    , at *2 (Del. Super. Oct. 17, 2016) (quoting Hart Holding
    Co., 
    593 A.2d at 539
    ) (internal brackets omitted).
    7
    A. The United States Supreme Court’s Recent Rulings on Personal
    Jurisdiction
    In 2011, the United States Supreme Court decided Goodyear Danlop Tires
    Operations, S.A. v. Brown.15 Goodyear was a suit in a North Carolina court filed by
    North Carolina residents who were injured in a bus accident in France, alleging a
    failure of tires manufactured by an Ohio company and sold by its European
    subsidiaries The European subsidiaries of Goodyear moved to dismiss for want of
    personal jurisdiction; Goodyear USA did not join in the motion.
    The Court differentiated between general jurisdiction_jurisdiction unrelated
    to the conduct complained of_and specific jurisdiction--jurisdiction specifically
    arising out of the conduct complained of. The Court held that general jurisdiction
    could only be had where a defendant is “essentially at home” in the forum state.16
    While a corporation is certainly “at home” in its place of incorporation or its
    principal place of business,17 the Court did not further refine what “continuous and
    systematic activities” would qualify a corporation as being “essentially at home” in
    a forum and thus appropriate for the assertion of general jurisdiction. But the Court
    did specifically repudiate any “stream of commerce” theory of general jurisdiction:
    “Flow of a manufacturer’s products into the forum . . . may bolster an
    15 564 U.s. 915 (2011).
    161¢1. at 919.
    171d. at 924.
    affiliation germane to specific jurisdiction. . . But ties serving to bolster the
    exercise of specific jurisdiction do not warrant a determination that, based on
    those ties, the forum has general jurisdiction over a defendant.”18
    On the other hand, specific jurisdiction is limited to adjudication of “issues
    deriving from, or connected with, the very controversy that establishes
    jurisdiction.”19 The only substantial relationship of North Carolina to the
    controversy was that the plaintiffs resided there. According to the Court, this was
    an insufficient basis to support specific jurisdiction.
    Then in 2014, the Court decided two personal jurisdiction cases: Daimler AG
    v. Bauman20 and Walden v. Fiore.21
    In Daimler, Argentinian residents brought tort claims in a California court,
    alleging that an Argentinian Daimler subsidiary (MB Argentina) conspired with
    Argentinian security forces to kidnap and kill employees of MB Argentina. The
    plaintiffs named only the Daimler parent compan -- Daimler, AG -- not l\/[B
    Argentina or its U.S. subsidiary, MBUSA. No plaintiff resided in California and all
    of the tortious activities occurred in Argentina. Nevertheless, plaintiffs argued that
    181d. at 927.
    19 Ia’. at 919 (citing Arthur T. von Mehren & Donald T. Trautman, Jurisdiction to Adjudz'cate.' A
    SuggestedAnalysis, 
    79 Harv. L. Rev. 1121
    , 1136 (1966)).
    20 571 U.s. 117 (2014).
    21 
    571 U.S. 277
     (2014).
    because MBUSA sold many automobiles in California and had a regional office
    there, those activities should be imputed to the parent, Daimler AG, which, it was
    argued, used agents to conduct substantial business in California. The Supreme
    Court rejected this argument.
    Daimler gave the Court an opportunity to review and expand on what it had
    said previously about general jurisdiction in Goodyear:
    Goodyear did not hold that a corporation may be subject to general
    jurisdiction only in a forum where it is incorporated or has its principal
    place of business; it simply typed those places paradigm all-purpose
    forums. Plaintiffs would have us look beyond the exemplar
    bases Goodyear identified and approve the exercise of general
    jurisdiction in every State in which a corporation “engages in a
    substantial, continuous, and systematic course of business.” That
    formulation, we hold, is unacceptably grasping.22
    Although MBUSA had multiple facilities and sales in California, those
    activities were not enough to support general jurisdiction over the parent company
    under an agency theory. Neither Daimler nor MBUSA were incorporated or
    headquartered in California. According to the Court, the Ninth Circuit erred in
    concluding “that Daimler, even with MBUSA’s contacts attributed to it, was at home
    in California, and hence subject to suit there on claims by foreign plaintiffs having
    nothing to do with anything that occurred in or had its principal impact in
    22 Daimler, 571 U.S. at 137-38 (citation omitted).
    10
    California.”23
    Less than two months after Daimler, the Court decided Walden v. Fiore.24 In
    Walden, a DEA agent working at a Georgia airport seized a large amount of cash
    from a couple that was passing through Georgia on their way home to Nevada. The
    couple eventually got their money back, but nonetheless filed suit against the agent
    in federal court in Nevada. The Supreme Court held that Nevada could not assert
    jurisdiction over the Georgia DEA agent.
    The Court further clarified the proper focus of specific jurisdiction:
    For a State to exercise jurisdiction consistent with due process, the
    defendant’s suit-related conduct must create a substantial connection
    with the forum State First, the relationship must arise out of contacts
    that the “defendant himself’ creates with the forum State Second,
    our “minimum contacts” analysis looks to the defendant’s contacts with
    the forum State itself, not the defendant’s contacts with persons who
    reside there [And, finally,] [d]ue process requires that a defendant
    be haled into court in a forum State based on his own affiliation with
    the State, not based on the “random, fortuitous, or attenuated” contacts
    he makes by interacting with other persons affiliated with the State.”25
    The Court made clear that for purposes of determining specific jurisdiction, “it is the
    defendant, not the plaintiff or third parties, who must create contacts with the forum
    State.”26
    22 Id. a1139.
    24 
    571 U.S. 277
     (2014).
    25 Walden, 571 U.S. at 284-86 (intemal citations omitted).
    26 Id. at 291.
    11
    This brings us to the Supreme Court’s June 2017 ruling in Bristol-Myers
    Squibb C0. v. Superior Court of California, San Francisco Coanty.27 But first, a
    brief history may be helpful.
    More than 600 plaintiffs filed suit in California against Bristol-Myers Squibb
    (“Bristol-Myers”), alleging injuries caused by ingestion of a Bristol-Myers drug
    called Plavix. Only a few of the plaintiffs were California residents. Bristol-Myers
    is a Delaware corporation with headquarters in New York. Bristol-Myers moved to
    dismiss the complaints of the nonresident plaintiffs, arguing that California courts
    had no jurisdiction over the tort claims of nonresident plaintiffs
    In the United States Supreme Court, the majority first held that the California
    Supreme Court correctly concluded that there could be no general jurisdiction
    because, despite Bristol-Myers’s activities in California, it was incorporated in
    Delaware and headquartered in New York with a major research and development
    presence in New Jersey. The fact that Bristol-Myers sold a lot of Plavix in California
    
    27137 S. Ct. 1773
     (2017).
    12
    and had a large presence there via a distribution contract with McKesson was
    insufficient to move the Court to consider Bristol-Myers “at home” there.
    As to specific jurisdiction, the Court, citing to Goodyear, stated that the
    Court’s settled jurisdictional principles controlled the case:
    In order for a court to exercise specific jurisdiction over a claim, there
    must be an “affiliation between the forum and the underlying
    controversy, principally, [an] activity or an occurrence that takes place
    in the forum State.” When there is no such connection, specific
    jurisdiction is lacking regardless of the extent of a defendant’s
    unconnected activities in the State. (“[E]ven regularly occurring sales
    of a product in a State do not justify the exercise of jurisdiction over a
    claim unrelated to those sales”).28
    The Court rejected the California Supreme Court’s reasoning that specific
    jurisdiction could be relaxed or mollified by a defendant’s activities in the forum
    that were unrelated to the conduct giving rise to the complaint.29 It likewise rejected
    the notion that the similarity between the California residents’ complaints and the
    nonresident complaints should factor into the determination of specific jurisdiction,
    B. General Jurisdiction: JNJ is not “at home” in Delaware
    The “paradigmatic” forum for general jurisdiction is the place of
    incorporation or the principal place of business. Delaware is neither to JNJ. It is
    28 137 S. Ct. at 1781 (internal citations omitted).
    29 Id (“Nor is it sufficient_or even relevant_that [Bristol-Myers] conducted research in
    California on matters unrelated to Plavix. What is needed-and what is missing here-is a
    connection between the forum and the specific claims at issue.”).
    13
    certainly true that the Supreme Court left open the possibility that there could be
    other fora that were “exceptional”30 and therefore “almost like home.” But if the
    term “exceptional” was left only ill-defined, the Court has made clear that merely
    engaging in a “substantial, continuous and systematic course of business” unrelated
    to the lawsuit is not exceptional.31
    In this case, Plaintiffs appended the annual statements of Johnson &
    Johnson_a company with some 127,000 employees and worldwide reach-but
    have pointed to nothing therein that would suggest that the company has such
    “exceptional” ties to Delaware as to warrant a finding that it is “at home” here.
    Plaintiffs argue that because JNJ “intentionally distributed talcum products in
    Delaware as part of a national distribution plan,” Plaintiffs may establish jurisdiction
    under a “stream of commerce” theory.32 But we have seen that the Supreme Court
    has repudiated any “stream of commerce” theory to support general jurisdiction,
    Nor can the Court agree that Johnson & Johnson’s creation of other
    subsidiaries in Delaware, unrelated to this lawsuit, somehow infects Johnson &
    Johnson and its non-Delaware subsidiaries with general jurisdiction in Delaware.
    General jurisdiction is heavily related to how the defendant has chosen to organize
    30 Daimler AG v. Bauman, 
    571 U.S. 117
    , 139 n.l9 (2014).
    31Id. at 137-38.
    32 Pls.’ Opp. to Def.’s Mot. for Protective Order, Trans. I.D. 60414353, at 8.
    14
    itself and where it has chosen for its principal place of business. Other Defendants
    named in the caption chose to organize in Delaware, JNJ did not. Plaintiffs’
    arguments favoring general jurisdiction in Delaware are unpersuasive
    C. Specific Jurisdiction
    We know that an analysis of specific jurisdiction requires inquiry into whether
    the lawsuit “aris[es] out of or relate[s] to the [corporation’s] contacts with the
    forum.”33 To this end, we are further instructed that a defendant’s unrelated forum
    activity is just that_unrelated to the jurisdictional determination From the
    decisions above, we are directed to consider a defendant’s forum-related activity and
    the relationship of that activity to the underlying controversy.
    It is worth recalling that the dispute before the Court is not a class action.
    Rather, each lawsuit represents the claims of individual Plaintiffs from various
    states. So what may be true of a Delaware Plaintiff may not be true of an Ohio
    Plaintiff. JNJ does not dispute specific jurisdiction in this Court for the claims
    brought by Delaware residents, whose injuries allegedly resulted from INJ’s forum-
    33 Genuine Parts Co. v. Cepec, 
    137 A.3d 123
    , 130 (Del. 2016) (quoting Helicopteros Nacl`onales
    de Colombia, S.A. v. Hall, 
    466 U.S. 408
    , 414 n.8 (1984)).
    15
    related activities. lt is only the nonresident Plaintiffs’ Complaints that are vulnerable
    to JNJ’s Motion to Dismiss.
    Plaintiffs must distinguish the Bristol-Myers Squibb case, and to this task they
    have put forth great effort. Unfortunately, some of that effort predated the U.S.
    Supreme Court’s Opinion and predicted-incorrectly_-that the California Supreme
    Court’s ruling finding jurisdiction in California would ultimately prevail. In any
    event, there are a few arguments that have potentially survived. The Court will
    address these arguments in the sections that follow.
    1. JNJ’s Sales and Marketing of Talc in Delaware
    Plaintiffs allege “upon information and belief’ that JNJ “marketed and
    distributed talc to hospitals to patients with newborn babies including Delaware
    hospitals and clinics and may have also utilized Delaware newspapers and
    periodicals for marketing and sales purposes.”34 For purposes of this ruling, the
    Court must, and does, assume the truth of these allegations.
    The Court accepts that forum-specific activities such as sales and marketing
    in Delaware, to Delawareans, may form a basis for a Delawarean to make a claim
    against JNJ. But as to a nonresident Plaintiff, even if a defendant’s activity is forum-
    specific, it is not germane to the nonresident Plaintiff s claim, The nonresident
    34 Pls.’ Suppl. Mem. Opposing Mot. for Protective Order in light of Brz'stol-Myers Squibb, Trans.
    I.D. 61068513, at 9.
    16
    presumably was subj ect to sales and marketing forces in her own jurisdiction, not in
    Delaware. Thus, JNJ’s sales and marketing of products in Delaware to resident
    Plaintiffs is not forum-related conduct by JNJ that is related to the specific claims at
    issue_the claims being asserted by nonresident Plaintiffs.
    lt is thus incorrect to say that JNJ’s sales and marketing in Delaware, or
    representations made in connection therewith, are forum-related activities that give
    rise to the liability sued on, at least as far as the nonresident Plaintiffs are concerned.
    If nonresident Plaintiffs are to establish specific jurisdiction over JNJ as to their
    claims, they gain little by referencing JNJ’s sales and marketing of products in
    Delaware to Delaware residents.
    2. T he Confidentiality Agreement
    Plaintiffs point to an unspecified confidentiality agreement between
    Defendant Luzenac (now Imerys Talc America, Inc.) and JNJ. According to
    Plaintiffs, the agreement included a provision stating that it would be governed by
    Delaware law.35 However, this is not a lawsuit concerning a breach of the
    confidentiality agreement. The fact that an unrelated contract is governed by
    Delaware law is, in every sense, conduct unrelated to the specific claims asserted in
    the Complaints.
    35 ld-
    17
    3. The Testing of Talc Samples by DuPont
    The only forum-related conduct concerning the sale and distribution of talc to
    nonresident Plaintiffs is an allegation that in 1974, JNJ “began sending talc samples
    for analysis to DuPont in Wilmington, Delaware, which is no doubt a consequence
    of the initial reports associating talc with ovarian cancer.”36
    To persuade the Court that the talc testing done by DuPont is somehow
    relevant to the jurisdictional analysis, Plaintiffs direct the Court to an Illinois case
    against a drug manufacturer in which plaintiffs alleged birth defects caused by
    ingestion of the psychiatric drug Paxil during pregnancy. An Illinois appellate court
    found the drug manufacturer’s clinical trials in Illinois to be sufficient forum-related
    conduct to vest Illinois with jurisdiction over the manufacturer as to the claims of
    nonresident plaintiffs concerning the safety of the drug involved in the clinical
    trials.37 Because, in that court’s view, the nonresident plaintiffs’ claims arose from
    acts or omissions during the clinical trials and the resulting inadequate warning
    labels, the nonresident plaintiffs had made a prima facie showing of jurisdiction_
    i.e., plaintiffs had alleged a sufficient connection between the drug manufacturer,
    the forum, and the specific claims at issue.
    36 Pls.’ Suppl. Mem. Addressing Personal Jurisdiction for Defs., Trans. I.D. 61813834, at 13.
    37 MM. ex rel. Meyers v. GlaxoSmithKline LLC, 
    61 N.E.3d 1026
     (Ill. App. Ct.), appeal denied sub
    nom. M.M. v. GlaxoSmithKline LLC, 
    65 N.E.3d 842
     (Ill. 2016), and cert. denied, 
    138 S. Ct. 64
    (2017).
    18
    Such a result may be justified given the drug manufacturer’s deployment of
    Illinois citizens in its clinical trials and the Illinois Court’s view of the centrality of
    those clinical trials to the nonresident plaintiffs’ complaints. Of similar effect are
    two trial court decisions in California involving another allegedly harmful drug that
    was subject to clinical trials in California.38
    All of this is of largely academic interest here, because talc is not a
    pharmaceutical drug subject to clinical trials. Rather, it appears that some quantity
    of talc Was shipped to a lab in Delaware, and DuPont analyzed it_perhaps for its
    purity or foreign substance content_and DuPont presumably informed JNJ of its
    findings. Even if the Court were inclined to agree with the California and Illinois
    courts that conducting clinical trials in a jurisdiction established a sufficient nexus
    between the forum and the specific claims at issue to vest the Court with specific
    jurisdiction, it does not follow that analyzing talc privately in a lab in Delaware
    would confer specific jurisdiction over JNJ as to the nonresident Plaintiffs’ claims
    in a Delaware courtroom. Assuming this was indeed some forum-related conduct
    directed by JNJ, it falls far short of the connection required between the forum and
    the specific claims at issue_i.e., those claims being asserted by each nonresident
    38 Dubose v. Bristol-Myers Squibb Co., 
    2017 WL 2775034
     (N.D. Cal. June 27, 2017); Cortina v.
    Bristol-Myers Squibb Co., 
    2017 WL 2793808
     (N.D. Cal. June 27, 2017). If it appears that there
    may be a “clinical trial” basis for specific jurisdiction developing in certain jurisdictions, that may
    very well be the case, or it may simply be that no appellate court has tackled the question just yet.
    19
    Plaintiff.
    The relevant JNJ conduct that forms the basis of nonresident Plaintiffs’ claims
    against JNJ is the continued production, packaging, marketing, and sale of talc
    despite knowing that it was harmful to women, and the concerted efforts that JNJ
    allegedly engaged in to prevent the public from finding out about the dangers
    associated with the use of talc in JNJ’s products. lfJNJ had talc analyzed by DuPont
    and learned or confirmed by the analysis that the talc was indeed dangerous, that
    evidence would surely be damaging to JNJ. But that knowledge did not advance the
    sale or marketing of talc to the public. It was not even a link in the production chain
    of talc’s eventual sale to the public. Plaintiffs have not alleged any fact linking
    DuPont’s testing of talc samples in Delaware to the nonresident Plaintiffs’ claims.
    The bare fact that JNJ contracted with DuPont to have some kind of testing
    performed on talc samples in a lab in Delaware is not enough to vest Delaware courts
    with jurisdiction over JNJ as to the nonresident Plaintiffs’ claims.39
    Sending talc samples to DuPont for analysis is, in the Court’s view, at best
    tangentially related to the claims in this lawsuit in that they both involve talc.
    Moreover, the fact that the situs of the analysis was a lab in Delaware is at best
    39 See Bristol-Myers Squibb, 137 S. Ct. at 1783 (“The bare fact that [Bristol-Meyers] contracted
    with a California distributor [to distribute Plavix] is not enough to establish personal jurisdiction
    in the State.”).
    20
    happenstance; it could have been a lab anywhere, and it was not the sort of
    purposeful availment of the privilege of conducting business in a state that would
    lead JNJ to “reasonably anticipate being hauled into court there.”40 Thus, assuming
    Plaintiffs’ allegations of forum-related lab analysis of talc are true, the Court does
    not find that conduct to be sufficiently significant or related to the specific claims at
    issue in the lawsuits before the Court to justify the exercise of specific jurisdiction
    over JNJ.
    4. T he Parent-Subsidiary, Principal-Agent, and
    Coconspirator Arguments
    Plaintiffs make additional claims related to the relationship between JNJ and
    other forum Defendants, including parent-subsidiary, principal-agent, and
    coconspirators All three use a similar, “attributive” approach to establishing
    jurisdiction.
    a. JN.I’s Delaware Subsidiaries
    Plaintiffs argue that nearly 50% of Johnson & Johnson’s 75 American
    subsidiaries are incorporated in Delaware and such ties to the forum militate in favor
    of a finding of specific jurisdiction here. In addition, Plaintiffs urge that JNJ
    transacts business in Delaware and may employ sales representatives or distributors
    here. Both of these arguments are essentially foreclosed by Bristol-Myers Squibb,
    40 World- Wide Volkswagen Corp. v. Woodson, 
    444 U.S. 286
    , 297 (1980).
    21
    where the defendant had substantial business ties to California, none of them related
    to the claims brought by the nonresident plaintiffs Indeed, Bristol-Myers Squibb
    teaches that these unrelated relationships to the forum do not form a basis for the
    exercise of specific jurisdiction,
    b. Agency Theory
    Plaintiffs argue that JNJ “contracted with distributors in Delaware to
    disseminate its talcum products, thus establishing jurisdiction because Defendants
    contracted to supply goods in Delaware.”41 We need not labor long over this
    argument. JNJ does not contest jurisdiction in Delaware as to resident claims The
    residents’ claims are intimately involved with JNJ’s conduct in the forum, thus
    satisfying specific jurisdiction, So whether JNJ acted as principal or through agents
    is largely irrelevant to jurisdiction as to resident Plaintiffs. As to the nonresident
    Plaintiffs, however, it is equally irrelevant how JNJ distributed goods to Delaware
    Plaintiffs with the opposite result: regardless whether JNJ marketed to Delaware as
    a principal or through an agent, its forum-related conduct did not cause injury to
    nonresident Plaintiffs.
    c. Conspiracy Theory
    Plaintiffs allege that “both the Delaware suppliers and the foreign sellers of
    41 Pls’ Opp. to Def.’s Mot. for Protective Order, Trans. I.D. 60414353, at ll.
    22
    talc engaged in a civil conspiracy.”42 Just how far the conspiracy theory of
    jurisdiction goes after the Supreme Court’s rulings in Daimler, Walden, and Bristol-
    Myers Squibb is not an answer that jumps off the page when looking at the state of
    the case law in this area. Indeed, whether the doctrine of conspiracy jurisdiction has
    even survived the Supreme Court’s recent rulings on jurisdiction has been
    questioned.43
    In a pre-Daimler case, the conspiracy theory of jurisdiction was recognized
    by the Delaware Supreme Court in Istituto Bancario Italiano SpA v. Hunter
    Engineering Company. 44 There, the Court recognized that this type of jurisdiction
    could be found where there was alleged (1) a conspiracy, (2) of which the defendant
    was a member, (3) a substantial act or effect in furtherance of the conspiracy that
    occurred in the forum, (4) that the defendant knew or had reason to know of the act
    in the forum or that acts outside the forum would have an effect in the forum, and
    (5) that the act in, or effect on, the forum was a direct and foreseeable result of the
    42 Id. at 13.
    43 See Cockrum v. Donald.[ T ramp for President, Inc. , _ F.Supp.3d. _ , _ , 
    2018 WL 3250445
    ,
    at *19-20 (D.D.C. July 3, 2018); In re Dental Supplies Antitrust Litig., 
    2017 WL 4217115
    (E.D.N.Y. Sept. 20, 2017); Reading the Tea Leaves of Early Post-Bristol-Myers Personal
    Jurisdiction Decisions, [18 CLASS 1131] Class Action Litig. Rep. (BNA) 2-3 (Dec. 8, 2017).
    44 
    449 A.2d 210
     (Del. 1982). While much of the litigation over conspiracy or agency jurisdiction
    has centered itself in the Delaware Court of Chancery, the doctrine has been recognized in the
    Superior Court as well.
    23
    conduct in furtherance of the conspiracy.45
    In order to harmonize the conspiracy theory of jurisdiction with the United
    States Supreme Court’s restructuring of personal jurisdiction, we must presume that
    the requirement that the conspiracy accomplish a “substantial act or effect” in the
    forum correlates with the Supreme Court’s mandate that the defendant engage in
    forum-related conduct that is directly related to the specific claims at issue in the
    lawsuit.46
    Here, Plaintiffs make no effort at all to articulate a substantial act committed
    in furtherance of the alleged conspiracy that was carried out in Delaware. Nor does
    even a generous reading of the Complaints and supplemental briefing remotely
    suggest one.
    The conspiracy theory of jurisdiction is narrowly construed,47 and Plaintiffs
    must allege specific facts tending to show that JNJ was a conspirator in acts in
    43 
    Id. at 225
    .
    40 To the extent Plaintiffs would argue that the conspiracy only need have had an effect on
    Delaware Plaintiffs_such as by sales of talc in the forum_the Court rejects the notion that the
    effect on resident Plaintiffs satisfies the “act or effect” needed to vest the Court with specific
    jurisdiction over nonresident Plaintiffs’ claims Such a rule would essentially render the forum-
    related activity requirement meaningless and vitiate the strictures of specific jurisdiction. While
    effects may satisfy a resident Plaintiffs burden, an effect on a forum Plaintiff has nothing
    whatsoever to do with the effects on nonresident Plaintiffs.
    47 Werner v. Miller Tech. Mgmt., L.P., 
    831 A.2d 318
    , 330 (Del. Ch. 2003) (citing Computer
    People, Inc. v. Best Int’l Grp., Inc., 
    1999 WL 288119
    , at ?“5 (Del. Ch. Apr. 27, 1~999));
    Crescent/Mach IPartners, L.P. v. Turner, 
    846 A.2d 963
    , 976 (Del. Ch. 2000).
    24
    Delaware and such pleadings must be more than “a facile way for [P]laintiffs to
    circumvent the minimum contacts requirement.”48
    While Plaintiffs’ Complaints are long on the history of talc and its regulation,
    or lack thereof, the studies showing its dangers to women, and the Defendants’
    efforts to repudiate or suppress the evidence, they are short on references to
    Delaware. Not only is JNJ not mentioned in connection with conspiratorial acts in
    Delaware, no other Defendant is either. Incorporation in Delaware serves only to
    establish Delaware as “home” for purposes of general jurisdiction; it is essentially
    irrelevant for purposes of specific jurisdiction and does nothing to advance the
    nonresident Plaintiffs’ claims in that respect.
    II. JNJ’s Motion for a Protective Order to Quash Jurisdictional
    Discovery Requests
    Upon a defendant’s motion to dismiss under Rule 12(b)(2), a plaintiff is on
    notice that personal jurisdiction is contested and the plaintiff thereupon has a duty
    to present facts or arguments demonstrating a basis to hold the defendant to account
    in the forum,
    Here, Plaintiffs have filed numerous pleadings with the Court, both in
    response to JNJ’s Motion for a Protective Order to preclude jurisdictional discovery
    and to INJ’s Motion to Dismiss the nonresident Plaintiff Complaints under Rule
    48 Compu¢er People, 1999 wL 288119, at *6.
    25
    12(b)(2) for want of personal jurisdiction Despite multiple briefs from able counsel
    for the Plaintiffs, the allegations supporting personal jurisdiction remain anemic at
    best. While the Court appreciates Plaintiffs’ many and creative arguments the Court
    must also recognize that other than a passing reference to some talc samples being
    analyzed by DuPont in Delaware, there is essentially no connection between JNJ,
    the forum, and the nonresident Plaintiffs’ claims as alleged in the pleadings and
    supplemental briefing.
    Plaintiffs’ counsel are well schooled in mass tort litigation and the pleadings
    needed to establish jurisdiction. In their briefing, counsel have specifically
    referenced information obtained under a protective order in the MDL, which
    indicates that Plaintiffs have access to that discovery, The Court believes that
    Plaintiffs’ pleadings and supplemental briefing have presented the best case they
    could for establishing jurisdiction in Delaware. The Court has, as it must, given
    Plaintiffs every benefit of any doubt, construing all of the pleadings and
    supplemental materials in a light most favorable to sustaining Plaintiffs’
    jurisdictional claims and permitting discovery to go forward.
    The question becomes: are Plaintiffs’ claims to personal jurisdiction in
    Delaware lacking because the facts are simply not there, or are they lacking because
    26
    the Plaintiffs have not been afforded discovery in light of JNJ’s Motion for a
    Protective f)rder?
    First, we know Plaintiffs will be unable to prove any facts that will support
    general jurisdiction in Delaware. As noted by Justice Breyer in Daimler, general
    jurisdiction is a straightforward inquiry in the post-Daimler world.49 Delaware is
    not the place of incorporation or principal place of business for JNJ. There is not a
    fact that Plaintiffs could somehow pull out of discovery that would have a realistic
    chance of changing these realities General jurisdiction over JNJ is simply not
    available to Plaintiffs.
    As to specific jurisdiction, certainly JNJ has engaged in much activity in the
    forum unrelated to these talc lawsuits And certainly JNJ’s acknowledged forum
    related activity (sales and marketing of talc to Delawareans) is activity related to or
    arising out of the resident Plaintiffs’ claims of toxic results The nonresident
    Plaintiffs’ real difficulty is finding facts to support the argument that JNJ engaged
    in some “substantial” activity in the forum that would establish the requisite causal
    link in the chain from such forum-related activity to not only the subject matter of
    the lawsuits but to the specific claims by the nonresident plaintiffs here. When we
    consider the Supreme Court’s admonition that a defendant’s forum activity be
    49 Daimler AG v. Baurnan, 
    571 U.S. 117
    , 139 n.20 (2014) (“[I]t is hard to see why much in the
    way of discovery would be needed to determine where a corporation is at home.”).
    27
    “based on his own affiliation with the State, not based on the ‘random, fortuitous, or
    attenuated’ contacts he makes by interacting with other persons affiliated with the
    State,”50 we must conclude that such facts are not alleged in any of the papers
    submitted to the Court.
    The Court acknowledges the apparent brewing tension in the case law with
    respect to forum-related activity that will satisfy the “arising from or relating to”
    requirement for specific jurisdiction, On the one hand, the Courts in California and
    Illinois found sufficient forum-related contact when a drug maker used the forum to
    conduct clinical trials for a drug later used by nonresident plaintiffs that allegedly
    caused them injury outside the forum.51 On the other hand, at least one District Court
    in Missouri found the forum-related activity insufficient in a talc case despite
    allegations that Johnson & Johnson controlled a manufacturer in Missouri who, at
    JNJ’s direction, discarded warning labels on talc packaging shipped to the plant.52
    It is understood that at the initial pleading stage, there is much about the
    dispute that a plaintiff may surmise but does not yet know. As a result, a Plaintiff s
    50 Walden v. Fiore, 
    571 U.S. 277
    , 286 (2014) (quoting Burger King Corp. v. Rudzewicz, 
    471 U.S. 462
    , 475 (1985)).
    51 Dubose v. Bristol-Myers Squibb Co., 
    2017 WL 2775034
     (N.D. Cal. June 27, 2017); Cortina v.
    Bristol-Myers Squibb Co., 
    2017 WL 2793808
     (N.D. Cal. June 27, 2017); MM ex rel. Meyers v.
    GlaxoSmithKline LLC, 
    61 N.E.3d 1026
     (Ill. App. Ct.), appeal denied sub nom. MM. v.
    GlaxoSmithKline LLC, 
    65 N.E.3d 842
     (Ill. 2016), and cert. denied, 
    138 S. Ct. 64
     (2017).
    52 Jinright v. Johnson & Johnson, Inc., 
    2017 WL 3731317
    , at *4 (E.D. Mo. Aug. 30, 2017).
    28
    allegations of jurisdiction need only be minimally plausible.53 And our discovery
    rules are intended to help the parties flesh out their suspicions But we must also
    eschew discovery “fishing expeditions” that unfairly put defendants to time and
    expense while offering virtually no possibility of a resolution finding jurisdiction.54
    Even taking the position advocated by Plaintiffs_that clinical trials would
    satisfy the “arising from or related to” requirement_the Court is not satisfied that
    Plaintiffs have made any allegation regarding JNJ’s conduct in the forum “arising
    from or related to” the specific claims at issue that would merit jurisdictional
    discovery. Indeed, Plaintiffs’ extensive briefing is essentially limited to the legal
    arguments of whether stream of commerce or perhaps an agency or conspiracy
    theory of jurisdiction should apply-not the essential facts Without those facts,
    Plaintiffs have not made the requisite showing, minimal as it may be, to warrant
    jurisdictional discovery. Plaintiffs burden is low but is it not nothing. Plaintiffs
    must, at the very least, chart out a course that sets forth a plausible theory by which
    this Court could obtain jurisdiction over JNJ. Plaintiffs are unable to articulate any
    discoverable facts that, if true, would support a finding of jurisdiction in the forum,
    And if not clear enough already, this is not a routine tort case. As discussed
    53 see ln re Asbesros Litig., 2016 wL 7404547, at *2 (Del. super. oci. 17, 2016),
    54 See In re Asbestos Litig., 
    2012 WL 1409397
    , at *2 (Del. Super. Jan. 10, 2012) (denying
    additional jurisdictional discovery to further a claim of general jurisdiction).
    29
    above, talc litigation is ongoing in any number of jurisdictions not the least of which
    is the MDL in New Jersey. Extensive discovery has already been requested and
    disgorged in support of those cases At oral argument, Plaintiffs’ counsel was quick
    to point out that much of that discovery is subject to a protective order. But counsel
    did not urge that such protective orders kept them from revealing what evidence
    establishes that Delaware has some kind of significant relationship to the nonresident
    Plaintiffs’ claims Indeed, as discussed above, Plaintiffs did put forward some
    evidence from the MDL, a fact which strongly suggests that more was not put
    forward because more does not exist. lt would seem obvious that at a minimum, if
    such evidence did exist, Plaintiffs would have sought relief from any confidentiality
    agreement or protective order.
    The Court cannot agree that jurisdictional discovery is an automatic right of
    Plaintiffs. Plaintiffs have not made the requisite showing, minimal as it may be, to
    warrant jurisdictional discovery. Because Plaintiffs have failed to articulate any
    discoverable facts that, if true, would support a finding of jurisdiction in the forum,
    the Court can come to only one conclusion-the discovery sought by Plaintiffs will
    add nothing to the jurisdictional analysis55 Under such circumstances the Court
    will grant JNJ’s Motion for a Protective Order.
    55 See T ell v. Roman Catholic Bishops of Diocese of Allentown, 
    2010 WL 1691199
    , at *7 (Del.
    Super. Apr. 26, 2010).
    30
    §_(_MIM
    JNJ’s Motion to Dismiss the nonresident Plaintiffs’ claims for lack of personal
    jurisdiction is GRANTED. The nonresident Plaintiffs’ claims against JNJ are
    therefore DISMISSED.
    JNJ’s Motion for a Protective Order to Quash Jurisdictional Discovery
    Requests is GRANTED.
    IT IS SO ORDERED.
    a
    ~ _____ \
    Judge Charle§‘E\,Mler_)
    31