Preview
FBT-CV23-6124450-S
:
MARLENE PHELAN, : SUPERIOR COURT
Plaintiff, :
: J.D. OF FAIRFIELD
VS. :
: AT BRIDGEPORT
ARKEMA, INC., ET AL., :
Defendants : MARCH 21, 2024
PLAINTIFF’S OPPOSITION TO DEFENDANT, PTI UNION, LLC’S
RENEWED MOTION TO DISMISS PLAINTIFF’S COMPLAINT
FOR LACK OF PERSONAL JURISDICTION
Plaintiff Marlene Phelan opposes PTI Union, LLC’s (“PTI”) renewed motion to
dismiss for lack of personal jurisdiction. Because this Court’s exercise of jurisdiction over PTI
satisfies Connecticut’s long-arm statute and due process requirements, PTI’s motion should be
denied. Alternatively, Ms. Phelan respectfully requests an opportunity to complete
jurisdictional discovery.
INTRODUCTION
Plaintiff Marlene Phelan is suffering from malignant mesothelioma, an incurable
terminal cancer caused by exposure to asbestos. She has been a Connecticut resident for
approximately 60 years. Plaintiff, in her First Amended Complaint, alleged that (1) PTI
manufactured and packaged personal care products containing talc, including Gold Bond talc
products, Ammens talc products, Desenex talc products, and Dr. Scholl’s talc products; (2) the
talc used by PTI to manufacture those products contained asbestos; and (c) Ms. Phelan’s
exposure to and use of talc-containing personal care products, including the products listed
above, caused or contributed to her development of mesothelioma. The vast majority of Ms.
Phelan’s exposure to and use of asbestos-containing talc products attributable to PTI occurred
in Connecticut, where she also purchased these products.
PTI is subject to this Court’s jurisdiction, and the First Amended Complaint so
establishes. First, Plaintiff’s detailed complaint alleges Connecticut contacts and relevant
forum-related facts that establish the Court’s jurisdiction over PTI. Second, PTI’s evidence, in
the form of an affidavit by Michael Brasher, does not fully address the facts in the First
Amended Complaint, nor does it provide any information as to PTI’s contacts with
Connecticut. Third, even if the Court considers evidence outside of the First Amended
Complaint, Plaintiff’s evidence establishes that (a) she was exposed to and used talc products,
including Gold Bond powders, Desenex powders, Ammens powders, and Dr. Scholls powders
in Connecticut; (b) PTI manufactured and packaged those products, (c) PTI used asbestos-
containing talc in those products, and (d) PTI knew, could have known, and certainly should
have known, that the products it made for manufacturers of these major brands would be sold
in Connecticut and/or used by consumers in Connecticut. Under these circumstances, this
Court’s exercise of jurisdiction over PTI satisfies due process requirements. PTI’s motion to
dismiss should be denied, especially at this early stage. Alternatively, Ms. Phelan asks the
Court for an opportunity to complete pending jurisdictional discovery to obtain relevant
information about PTI’s contacts with Connecticut.
STATEMENT OF FACTS
A. Jurisdictional facts alleged in the Complaint.
Ms. Phelan was exposed to asbestos-containing talc powder products between the
1950s and 2023:
The plaintiff, MARLENE THERESA PHELAN, was exposed to asbestos
and/or asbestos-containing talcum powder products and talc make-up products
at various times in her life, from approximately the 1950s to 2023, through her
personal use of asbestos-containing talcum powder products and talc make-up
products on herself and on her children. Such exposure in the State of
Connecticut contributed in part or totally to [her] contraction of asbestos-related
mesothelioma and other asbestos-related pathologies.1
1
Ex. 1, First Amended Complaint, 10/30/23, ¶ 59.
2
The First Amended Complaint further states that Ms. Phelan was exposed to, and she inhaled
and/or ingested asbestos dust and that asbestos dust is attributable to asbestos-containing
products which were contracted for, mined, milled, processed, manufactured, designed, tested,
assembled, fashioned, fabricated, packaged, supplied, distributed, delivered, marketed and/or
sold by the named defendants.2 The Complaint also alleges that each defendant reasonably
expected for its asbestos-containing talc product or component to reach Connecticut by placing
the product in the stream of commerce and knowing it would be consumed by users like Ms.
Phelan, in Connecticut.3
Relevant here, PTI is named for being engaged in the business of manufacturing and
processing asbestos-containing Gold Bond talc products, Ammens talc products, Desenex talc
products, and Dr. Scholl’s talc products.4 The Complaint also alleges that PTI did substantial
business in Connecticut, including selling and distributing dangerous and defective products it
manufactured in the State of Connecticut.5 The Complaint specifically states, as to jurisdiction,
The Defendants are corporations, companies or other business entities which,
during all times material hereto, and for a long time prior thereto have been,
and/or are now engaged, directly or indirectly, in the manufacturing, producing,
selling, merchandising, supplying, distributing, and/or otherwise placing in the
stream of commerce, asbestos-containing products. Courts of the State of
Connecticut have personal jurisdiction over all Defendants.
Plaintiff’s claims against the Defendants, as defined herein, arise out
Defendants’ purposeful efforts to serve directly or indirectly the market for their
asbestos and/or asbestos-containing products in this State, either through direct
sales or through utilizing an established distribution channel with the
expectation that their products would be purchased and/or used within the State
of Connecticut.6
2
Id., ¶ 61.
3
Id., ¶¶ 57-59.
4
Id., ¶ 47. The First Amended Complaint contains substantial allegations regarding PTI’s successor liability to
Pharma Tech Industries and Black Creek Corporation. Id., ¶¶ 98-119.
5
Id.
6
Id., ¶¶ 2-3.
3
PTI’s product sales in Connecticut caused Ms. Phelan’s injuries: “The exposures to this
Defendant’s products, actions, inactions, and/or other activities, which caused or contributed
to cause Plaintiff’s disease and injury, occurred in the State of Connecticut, and arose out of
the business Defendant conducted in the State of Connecticut.”7
The First Amended Complaint states the Court has personal jurisdiction based on the
Connecticut long-arm statute, including from PTI’s “[c]ommission of a tortious act in whole
or in part in this State” and “[e]xposing Plaintiff to asbestos dust, fibers and/or particles
generated from the ordinary and foreseeable use of the asbestos-containing products it sold,
supplied, distributed, incorporated, and/or otherwise placed in the stream of commerce in the
State of Connecticut.”8
B. Connecticut contacts to date without the benefit of discovery.
1. Ms. Phelan was exposed to cosmetic talc products in Connecticut,
diagnosed with mesothelioma in Connecticut, and is currently receiving
medical treatment in Connecticut.
Ms. Phelan was born in 1948.9 She has lived in Connecticut since she was 15 years
old.10 She was exposed to cosmetic talc products starting when she was between 5 and 8 years
old and continuing until her diagnosis with mesothelioma in January 2023.11 Therefore, most
of Ms. Phelan’s exposure to and use of asbestos-containing talc products occurred in
Connecticut. She recalls using Gold Bond, Ammens, and Desenex body powders on herself
daily after showering, and on her children during diaper changes.12 She also used Gold Bond,
Desenex, and Dr. Scholl’s talcum powders in her shoes for odor control several times a week.13
7
Id., ¶ 47.
8
Id., ¶ 4.
9
Ex. 2, Marlene Phelan Dep., Vol. 5, 8/14/23, at 817:20-21.
10
Id. at 818:3-9.
11
Id. at 824:3-21.
12
Id. at 829:21-830:6, 831:23-832:3, 839:15-842:9.
13
Id. at 849:7-850:6.
4
In January 2023, Ms. Phelan was diagnosed with malignant mesothelioma at Middlesex
Hospital in Middletown, Connecticut, and she has received her treatment there and at Yale.14
2. Ms. Phelan was exposed to finished products in Connecticut manufactured
by PTI.
PTI is “the largest pharmaceutical contract manufacturer and packager of powder
products in the world[.]”15 PTI has been in business for over 50 years and has “two centralized
shipping and manufacturing locations”—one in Union, Missouri and one in Royston,
Georgia.16 According to PTI, those two manufacturing locations provide “access to 40% of the
[U.S.] population within a 4-hour shipping radius.”17 Based on its website, its customers
include major personal care product brands, including Johnson & Johnson, Chattem and
Sanofi.18 PTI’s “customers include six of the top ten global pharmaceutical corporations.”19 In
2007, Pharma Tech’s annual revenue was $55 million, and its key customers included Johnson
& Johnson, Schering Plough, Chattem, and Novartis.20 PTI served more than a dozen such
clients.21 In 2013, Pharma Tech Industries reported $95 million in annual revenue.22
Arthur Guilford bought the Gold Bond powder formula from the Rhode Island State
Medical Association in 1882.23 In 1908, he began mixing Gold Bond powder in his small
14
Ex. 3, Marlene Phelan Dep., Vol. 2, 8/9/23, at 270:9-272:19.
15
Ex. 4, Bob Sperber, New Pharma Tech expansion, lab, packworld.com, Aug. 5, 2013, available at
https://www.packworld.com/news/contract-manufacturing-and-packaging/press-release/13362944/new-pharma-
tech-expansion-lab (last visited July 24, 2023); Ex. 5, Pharma Tech Brochure; Ex. 6, PTI Presentation, dated Mar.
20, 2013.
16
Ex. 7, “About” Webpage, Pharm-Tech.com; available at https://pharma-tech.com/about/ (last visited July 24,
2023); see also Ex. 8, Press Release: Pharma Tech Industries expands in PTI, creating 20 new jobs, Missouri
Department of Economic Development, dated June 3, 2014; Ex. 9, SYSPRO Case Study, dated August 2008.
17
Ex. 7, “About” Webpage, Pharm-Tech.com; available at https://pharma-tech.com/about/ (last visited July 24,
2023).
18
Ex. 10, “Home” Page, Pharma-Tech.com, available at https://pharma-tech.com, last visited July 23, 2023.
19
Ex. 7, “About” Webpage, Pharm-Tech.com; available at https://pharma-tech.com/about/ (last visited July 24,
2023).
20
Ex. 11, E-mail from PTI’s Franchise Director, John Thaler to David Keller (Business Developer with Johnson
& Johnson Consumer Products Company), dated Aug. 18, 2007.
21
Ex. 4, New Pharma Tech expansion, lab article.
22
Ex. 6, PTI Presentation, dated Mar. 20, 2013.
23
Ex. 12, Gold Bond History at p. 2.
5
Massachusetts’ shop and selling it to New England consumers.24 In 1912, Mr. Guilford sold
the formula and manufacturing rights to John M. Chapman, who expanded distribution.25 In
1930, Timothy Shea joined the company, then known as “The Gold Bond Sterilizing Powder
Company.”26 Mr. Shea went from a manager to the company’s sole owner in 1965. The
business continued operating out of Massachusetts, and the distribution of sales continued to
expand.27 In 1990, the Shea family sold the business to Martin Himmel Inc. (“MHI”) who
turned the then more regional Gold Bond powder product into a nationally available product.28
In the early 90s, Mr. Himmel added other types of powder products and cream-based products
to the Gold Bond product line.29 Sometime after MHI acquired the Gold Bond product line,
PTI began manufacturing powder products for MHI.30
PTI made and shipped Gold Bond products directly to Connecticut and the market
impacting Connecticut. According to inventory records, in 1995 alone, there was more than
$2.5 million worth of Gold Bond products stored in various distribution warehouses around
the country; PTI alone had $450,000 of that inventory.31 According to the manufacturing
agreement between PTI and MHI, PTI was responsible for shipping products to various
locations for MHI.32 MHI products were sold in stores nationwide in chains like CVS.33 MHI
products were also sold in local stores, including Ann & Hope stores and Brooks Pharmacy—
24
Ex. 12, Gold Bond History at p. 2.
25
Ex. 12, Gold Bond History at p. 2.
26
Ex. 12, Gold Bond History at p. 2.
27
Ex. 12, Gold Bond History at p. 2.
28
Ex. 12, Gold Bond History at p. 3.
29
Ex. 12, Gold Bond History at p. 3.
30
Ex. 13, Deposition of Matthew Lochstampfor for Chattem, Inc. (“Lochstampfor Depo.”), Arevalo v. Asbestos
Corp., Ltd., Middlesex County, Superior Court of New Jersey, March 7, 2018, at 69:21-70:9, 72:3-25; see also
Ex. 14, Manufacturing Agreement between Pharma Tech Industries, Inc. and Martin Himmel, Inc. (signed by
Edward T. Noland on behalf of Pharma Tech Industries), dated Feb. 14, 1996.
31
Ex. 15, Martin Himmel Inc.’s Finished Goods Inventory by Location, dated Dec. 31, 1995, and Feb. 29,
1996.
32
Ex. 14, Manufacturing Agreement between Pharma Tech Industries, Inc. and Martin Himmel, Inc., dated Feb.
14, 1996, at p. 20.
33
See generally, Ex. 16, Martin Himmel Inc.’s 1996 broker summary, and estimated store inventory log.
6
stores located primarily in New England states, including Connecticut.34 For MHI Gold Bond
products manufactured by PTI, Mr. Edward T. Noland, the head of PTI, was responsible for
securing the talc to be used in MHI powder products, and he finalized pricing with the talc
supplier directly.35
Chattem, Inc. (“Chattem”)36 acquired the Gold Bond brand from MHI in 1996.37
Chattem, like Himmel before it, hires “contract manufacturing organizations” or “CMOs” to
manufacture products.38 PTI has been Chattem’s exclusive CMO for Gold Bond powder
products since it acquired the brand in 1996:
Q. How – how long has Chattem done business with PTI? That is Pharma
Tech, Inc.; is that correct?
A. Yes.
Q. How long have they done business?
A. Since 1996, when we acquired the brand.39
After Chattem acquired the Gold Bond product line from MHI, it entered into an amended
manufacturing agreement with PTI also signed by Mr. Noland.40 The talc incorporated into
Gold Bond between 1996 and 2014 came from the Barretts mine in Dillon, Montana, and was
designated by the trade name MP 60-30.41 In other litigation, Whitaker Clark & Daniels has
34
Ex. 16, Martin Himmel Inc.’s 1996 broker summary, and estimated store inventory log; Ex. 17, Ann & Hope
Stores Wikipedia Webpage (last visited Jul. 30, 2023); Ex. 18, Brooks Pharmacy Wikipedia Page (last visited
Aug. 14, 2023).
35
Ex. 14, Manufacturing Agreement between Pharma Tech Industries, Inc. and Martin Himmel, Inc., dated Feb.
14, 1996, at p. 24.
36
In 1879, Chattem was founded as “The Chattanooga Medicine Company” and in 1909 it was incorporated as
such in Tennessee. It later changed its name to Chattem Drug & Chemical Company. Since 1978, it has
operated under the name Chattem, Inc. In 2010, Sanofi-Aventis acquired 100% of Chattem. Thus, it is now a
wholly-owned subsidiary of Sanofi or one of Sanofi’s affiliated companies. See Ex. 19, Defendant Chattem,
Inc.’s Response to Plaintiff’s Standard Talc Liability Interrogatories (“Chattem Talc Liability Rogs”), Tippin v.
3M Company, Index No. 190062/2021, Supreme Court of New, New York County, dated Feb. 21, 2022, at p. 1.
37
Ex. 13, Lochstampfor Depo., at 63:8-12; Ex. 12, Gold Bond History at p. 3.
38
Ex. 13, Lochstampfor Depo., at 34:10-18.
39
Ex. 13, Lochstampfor Depo., at 43:17-22; Ex. 19, Chattem Talc Liability Rogs, at 2 and 15; Ex. 20, Bob
Clausen’s Internal E-mail to Tami Riley, dated June 18, 2015.
40
Ex. 21, Amendment to Manufacturer’s Manufacturing Agreement between Pharma Tech Industries and
Chattem, dated April 26, 1996; see also Ex. 22, Manufacturing and Supply Agreement between Chattem and
Pharma Tech Industries (signed by Edward Noland on behalf of Pharma Tech Industries), dated Jan. 1, 2000.
41
Ex. 13, Lochstampfor Depo., at 55:20-58:4.
7
produced a summary of its supply of Barretts talc to “Pharma Tech Industries” in Union,
Missouri, which is believed to be the same location as PTI’s facility.42 From at least 2005 until
2014, Barretts sold significant quantities of its talc to PTI for use in Gold Bond talcum powders
(and sold through the same talc distributors in 1996 to 2004).43 Based on these transactions
and its testimony, Barretts considers Pharma Tech Industries and PTI the same.44
PTI was heavily involved in the Gold Bond powder products development and
manufacture. Records show PTI contacted talc suppliers, negotiated prices, and recommended
alternative talc grades and talc suppliers to be used in its customer’s products.45 For example,
in 2001, in an effort to obtain a competitive price from Imerys/Luzenac for talc, and to convince
Chattem to make the switch from Barretts’ talc to Luzenac’s talc, PTI reported that it was
bottling approximately 3 million pounds of Gold Bond foot powder annually.46 On November
17, 2003, Luzenac directly contacted Linda Woolfe, in charge of purchasing for Pharma Tech,
to quote new talc pricing for Pharma Tech’s talc supply.47 Every year, PTI presented a business
review to Chattem, in which it reported the volume of Gold Bond products manufactured and
the sales of Gold Bond products for the year.48 For example, in 2014, PTI manufactured close
to 13 million bottles (of varying sizes) of Gold Bond powder products that generated $9 million
dollars’ worth of sales.49 These records also show PTI knew of the availability of cornstarch,
and yet, it continued to solicit talc from suppliers.50 PTI tested raw materials on site, and that
42
Ex. 23, Whitaker Clark & Daniels sales records.
43
Ex. 24, Deposition Testimony of Darin Lindsay for Barretts Minerals, Inc. (“Lindsay Depo.”), Woods v.
Kolmar Laboratories, Inc., et al., Monroe County, Supreme Court of New York, taken June 22, 2022, at 148:5-
152:22; 157:11-163:10; 190:4-191:21.
44
Ex. 24, Lindsay Depo., at 148:5-152:22; 157:11-163:10; 190:4-191:21.
45
See generally, Ex. 25, Imerys/Luzenac Correspondence and Call Reports.
46
Ex. 25, Imerys/Luzenac Correspondence and Call Reports, at p. 4.
47
Ex. 25, Imerys/Luzenac Correspondence and Call Reports, at p. 4.
48
See, e.g., Ex. 26, Chattem Annual Business Review, dated Nov. 13, 2014.
49
See, e.g., Ex. 26, Chattem Annual Business Review, dated Nov. 13, 2014.
50
Ex. 25, Imerys/Luzenac Correspondence and Call Reports, at 3-4.
8
testing included testing for asbestos.51 Yet, PTI continued to manufacture products using talc,
even though, as a company with its own testing capabilities, a member of the cosmetic and
personal care products industry, and a company in regular contact with several talc suppliers,
PTI knew or had ample reason to know, that the talc it was using to manufacture personal care
powder products contained asbestos.52
PTI began manufacturing Johnson’s Baby Powder for Johnson & Johnson in 2005 out
of a facility in Royston, Georgia.53 J&J referred to PTI as “a contract manufacturer based in
Union, Missouri.”54 While PTI Union attempts to argue that it remains a separate entity from
PTI Royston, PTI’s own Chairman and CEO stated that “effective April 1, 2008, Pharma Tech
Industries, Inc. (“PTI”) in Union, MO will merge (on paper only) with our related operation in
Royston, Georgia. The combined company will do business as Pharma Tech Industries.”55
ARGUMENT AND AUTHORITIES
PTI is subject to specific personal jurisdiction under Connecticut’s long-arm statute,
Gen. Stat. § 33-929(f)(3), and this Court’s exercise of jurisdiction over it comports with due
process requirements.
A. The allegations in Plaintiff’s detailed Complaint establish this Court’s
jurisdiction.
1. Legal Standard.
Courts deciding a motion to dismiss “must determine not the merits of the claim or
even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to
hear and decide.” Hinde v. Specialized Education of Connecticut, Inc., 147 Conn. App. 730,
51
Ex. 27, PTI Certificates of Analysis.
52
See generally, Ex. 25, Imerys/Luzenac Correspondence and Call Reports.
53
Ex. 28, J&J external audit of PTI in 2010 at pg. 3 of 11.
54
Ex. 28, J&J external audit of PTI in 2010 at pg. 3 of 11.
55
Ex. 29, Letter from PTI’s Mr. Noland to Luzenac 4/1/2008.
9
740-41, 84 A.3d 895 (2014). While plaintiff bears the burden of establishing the court has
jurisdiction over a foreign corporation, the allegations in the complaint are to be construed in
a manner most favorable to plaintiff. Cogswell v. American Transit Ins. Co., 282 Conn. 505,
516, 923 A.2d 638 (2007). “The motion to dismiss . . . admits all facts which are well pleaded,
invokes the existing record and must be decided upon that alone[.]” Id. Affidavits are
insufficient to establish facts unless the parties agree on the facts, and there is no genuine issue
as to a material fact. Id.
2. This Court has personal jurisdiction over PTI based on Plaintiff’s prima facie
evidence.
With the allegations accepted as true, Plaintiff’s First Amended Complaint
demonstrates that this Court can exercise personal jurisdiction over PTI. In her complaint,
Plaintiff alleged PTI conducted substantial business in Connecticut by placing its asbestos-
containing product in the stream of commerce, and it did so knowing that the product would
reach Ms. Phelan and/or plaintiffs like her. The First Amended Complaint also alleges that Ms.
Phelan was exposed to asbestos-containing talcum powder products between the 1950s and
2023, and that includes exposure to PTI’s asbestos-containing products. It states that Ms.
Phelan’s exposure to PTI’s asbestos-containing products in Connecticut caused or contributed
to her mesothelioma diagnosis. By pleading these facts, Plaintiff has established (1) PTI
availed itself of Connecticut’s market through its own actions, (2) Ms. Phelan purchased and
used asbestos-containing talcum powder products manufactured by PTI in Connecticut, and
(3) the resulting exposure caused or contributed to her mesothelioma and injuries. Considering
these facts together, and taking them as true, PTI manufactured products knowing that those
products would ultimately be sold and used in Connecticut. PTI, in its affidavit, has not denied
that Ms. Phelan used Gold Bond, Desenex, Ammens, or Dr. Scholl’s products in Connecticut,
10
or that those products were not available for purchase in this state. These facts satisfy not just
Connecticut’s long-arm statute, but also due process requirements. Based on this alone, Ms.
Phelan asks the Court to deny PTI’s motion to dismiss for lack of personal jurisdiction.
Cogswell, 282 Conn. at 516.
B. PTI is subject to this Court’s jurisdiction.
To exercise specific personal jurisdiction over a defendant, the defendant’s conduct
must fall within Connecticut’s long-arm statute and the court’s exercise of jurisdiction over
the defendant must comport with constitutional due process requirements. Cogswell, 282
Conn. at 514-515. Both are satisfied here.
1. Connecticut’s Long-Arm Statute.
Relevant to this case, Connecticut’s long-arm statute permits courts to exercise
jurisdiction over foreign corporations under the following circumstances:
Every foreign corporation shall be subject to suit in this state, by a resident of
this state or by a person having a usual place of business in this state, whether
or not such foreign corporation is transacting or has transacted business in this
state and whether or not it is engaged exclusively in interstate or foreign
commerce, on any cause of action arising as follows: . . . (3) out of the
production, manufacture or distribution of goods by such corporation with the
reasonable expectation that such goods are to be used or consumed in this state
and are so used or consumed, regardless of how or where the goods were
produced, manufactured, marketed or sold or whether or not through the
medium of independent contractors or dealers; or (4) out of tortious conduct in
this state, whether arising out of repeated activity or single acts, and whether
arising out of misfeasance or nonfeasance.
Conn. Gen. Stat. Ann. § 33-929(f). Here, Ms. Phelan’s cause of action arises out of PTI’s
manufacture and distribution of Gold Bond powder products, Ammens powder products,
Desenex powder products, and Dr. Scholl’s powder products, and PTI had a reasonable
11
expectation that such products would be used and/or consumed in Connecticut. In a factually
similar case, Rice Estate of Rice v. American Talc Company, the Superior Court held:
a plaintiff’s cause of action arises out of a foreign corporation’s production,
manufacture, or distribution of goods if, at the time the foreign corporation
engaged in the production, manufacture, or distribution of goods with the
reasonable expectation that such goods would be and are so used or consumed
in this state, it was reasonably foreseeable that it could be sued in Connecticut
on a cause of action similar to that being brought by the plaintiff.
No. FBTCV156053658S, 2017 WL 4873098, *4 (Conn. Super. Sept. 7, 2017) (finding that
defendant distributed its talc with the reasonable expectation that the talc would be used in
Connecticut based on evidence of the defendant’s knowledge of where its products were being
shipped, the number of products it sold in Connecticut, contacts with companies in the state,
and percent of annual sales in Connecticut). Here, when PTI manufactured and distributed
Gold Bond products for MHI, it agreed to ship the products directly to distributors and/or
stores, and some of the stores at which Gold Bond products were sold were local to the
Northeast. Even after PTI began manufacturing for Gold Bond, PTI was aware of annual
product sales and distribution as it presented that information to Chattem, the owner of Gold
Bond powder products, on an annual basis. PTI was involved in obtaining competitive talc
supplies, testing products, and shipping them—regardless of whether it did so based on an
internal business agreement that should damage occur it was considered the brand owner’s
product, not PTI’s product. Mr. Brasher’s statements in his affidavit that Chattem controlled
the shipment of Gold Bond products is unavailing,56 especially under Connecticut’s long-arm
statute, which explicitly states, it is immaterial where the products were manufactured,
distributed and sold, and it is equally immaterial whether the products were directly shipped
56
Michael Brasher Aff., ¶¶ 5-6, Exhibit A to PTI’s Motion.
12
by the manufacturer or by another source, as long as the defendant could reasonably be
expected to know the product would be sold and consumed by Connecticut residents.
Ms. Phelan’s cause of action also arises out of PTI’s tortious conduct in the state. As
noted above, Ms. Phelan purchased, was exposed to, and/or used asbestos-containing talcum
powder products manufactured by PTI, including Gold Bond powder products, Ammens
powder products, Desenex powder products, and Dr. Scholl’s powder products. Ms. Phelan
breathed in the asbestos dust released by these products in Connecticut. Accordingly, she was
injured in Connecticut. Her subsequent mesothelioma diagnosis and treatment has also
occurred in Connecticut. Connecticut courts have found jurisdiction under similar
circumstances. For instance, in Simeone v. Federal Press Co., the court found personal
jurisdiction over a manufacturer of machines based its products being shipped to an
intermediate company in the state, and the tortious injury/conduct occurring in the state. 40
Conn. Supp. 173, 169-70, 485 A.2d 587 (Conn. Super. 1984). Similarly, in Sheridan v. Cadet
Chemical Corp., the court found it had jurisdiction over a foreign corporation based on
Connecticut’s long-arm statute because the injuries and tort occurred in Connecticut. The court
so found even though the defendant was not otherwise connected to Connecticut based on the
defendant’s improper loading of a truck with chemicals in New York and the truck’s
subsequent explosion in Connecticut. 25 Conn. Supp. 17, 22, 195 A.2d 766 (Conn. Super.
1963).
In sum, PTI’s conduct falls under Connecticut’s long-arm statute because it knew or
certainly should have known that its products were being sold to Connecticut residents.
Additionally, PTI is subject to this Court’s jurisdiction because its conduct of manufacturing a
defective and fatal product containing asbestos caused or contributed to Ms. Phelan’s
mesothelioma, and that injury and diagnosis occurred in Connecticut.
13
2. Due Process Requirements.
To satisfy due process, PTI must have minimum contacts with Connecticut and
exercising jurisdiction over PTI must be substantially just and fair. Samelko v. Kingstone
Insurance Company, 329 Conn. 249, 266-67, 184 A.3d 741 (Conn. 2018). Here, both
requirements are satisfied.
a. Minimum Contacts.
A defendant purposefully avails itself of the privilege to conduct activities in a forum
state, and as a result invokes the protections of the forum state, when its contacts with the state
are not “random, fortuitous, or attenuated[.]” Id. Based on its own actions and purposeful
availment of the state’s benefits, a defendant should reasonably anticipate being haled into
court in that forum. Id.
PTI purposefully availed itself of the privilege of conducting activities in Connecticut
by placing its asbestos-containing talc into the stream-of-commerce. As set forth supra, since
the 1990s, PTI has manufactured Gold Bond powder products for MHI until 1996, and Chattem
thereafter. For MHI, PTI shipped those manufactured products directly to distribution centers
as per their agreement. MHI records show that those products were being sold in stores such
as Ann & Hope stores and Brooks Pharmacy stores—stores that are primarily located in the
Northeast, including Connecticut. In 2007, PTI had an annual revenue of $55 million, and in
2013 its annual revenue was $95 million. Not only does PTI know, or have ample reason to
know, that powder products its manufacturing will be sold nationwide (or even globally), but
it kept records of the volume of production and nationwide sales. According to its own website,
PTI provides access to 40% of the United States population within four hours. The very
purpose of its serving as a powder product contract manufacturer for major personal care
product brands and pharmaceutical companies, is to produce products that consumers will use
14
nationwide. For example, in 2001 alone, PTI bottled approximately three million pounds of
Gold Bond foot powder. In 2014, PTI filled over 13 million bottles with Gold Bond powders,
and it noted $9 million in sales. PTI’s knowledge of the volume of Gold Bond production and
the total sales for the year shows it was an active participant in the manufacturing process,
including the sales and distribution of Gold Bond products.
Given its heavy involvement in the manufacturing process and sales of talcum powder
products, PTI should have anticipated litigation ensuing from its failure to warn its customers
or global consumers about the hazards associated with the asbestos-containing talc it used in
the products it manufactured. Under these circumstances, this Court’s exercise of jurisdiction
over PTI “results from [PTI’s] ‘voluntary’ acts and [its] ’foreseeable’ consequences and is not
premised on ‘random, fortuitous, or attenuated contacts[.]’” Samelko, 329 Conn. 266-67.
b. Fair Play and Substantial Justice.
Connecticut courts look at five factors to determine whether assertion of personal
jurisdiction over a defendant comports with fair play and substantial justice. Those factors
include, (1) the burden on the defendant; (2) the interest of the forum state in adjudicating the
case; (3) the plaintiff’s interest in obtaining relief; (4) the interstate judicial system’s interest
in obtaining efficient resolution; and (5) shared interest of the states in furthering social
policies. Samelko, 329 Conn. at 269-70. Based on these factors, exercising jurisdiction over
PTI is fair and reasonable.
In a case like this, where there are numerous defendants, who are alleged to be liable
for tort injuries flowing from the mining, processing, supplying, distribution, manufacture,
and/or retail sales of talc and/or finished talcum powder products, finding “the best forum” for
all, or even any, defendants would be difficult, if not impossible. There is no indication that
suing PTI in its “home” state or the state in which it operates its principal place of business
15
would aid this litigation. Ms. Phelan’s exposure to asbestos-containing products manufactured
by PTI occurred in Connecticut. Those products were distributed to and sold in stores in
Connecticut. These factors favor litigation in Connecticut. It would not be favorable or efficient
to require Plaintiff to refile this case in various jurisdictions and litigate this matter piecemeal
based on each defendant’s preference to be in a different court. It would not be an efficient use
of judicial resources, nor would it be time-efficient and/or cost-efficient. Connecticut is the
most natural forum. Plaintiffs have a clear interest in obtaining relief in the only jurisdiction
where all defendants can be sued simultaneously, and where the many non-party witnesses live
and are subject to subpoena.
As the state where Ms. Phelan sustained injuries from her exposure to asbestos-
containing personal care talc products manufactured by PTI, Connecticut has a keen interest
in providing residents with “‘a convenient forum for redressing injuries inflicted by out-of-
state actors,’ as well as enforcing their own safety regulations.” Ford Motor Company v.
Montana Eighth Judicial District Court, 141 S.Ct. at 1030 (2021) (quoting Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 473 (1985)). Plaintiff asks the Court to deny PTI’s motion to
dismiss as Connecticut has an interest in this litigation and it is the more natural forum
considering all relevant facts.
C. In the alternative, Plaintiff asks for the opportunity to complete jurisdictional
discovery.
In Standard Tallow Corp. v. Jowdy, the Connecticut Supreme Court held that
jurisdictional discovery is permitted based on the Connecticut Practice Book § 218 (now § 13-
2). State v. Reservation Services International, Inc., No. HHDCV166071791S, 2017 WL
5930540, *1 (Conn. Super. Nov. 2, 2017). While the determination of whether jurisdictional
discovery should be permitted is in the sound discretion of the court, the Practice Book has
16
stated that permitting a party to conduct discovery is mandatory when the information sought
will be of assistance to prosecute or defendant an action. Id.
To determine and to fully explore the actions and conduct PTI has directed towards this
forum, jurisdictional discovery is needed. Plaintiff has propounded written discovery on PTI
and those responses are pending. Plaintiff provide some non-exclusive examples of discovery
that may reveal relevant to PTI’s Connecticut contacts:
First, Plaintiff intends to conduct discovery regarding the true nature of the corporate
relationships between PTI Union, Pharma Tech Industries and PTI Royston. Such discovery
will determine whether, as PTI Union and PTI Royston were the same entity during certain
years, PTI Union can be held responsible for both.57 If so, Plaintiff can hold defendant
responsible for manufacturing and distributing Johnson & Johnson products, especially as
Plaintiff can likely (if not inevitably) establish that PTI knew full well that the Johnson’s Baby
Powder manufactured by it would be sold in Connecticut.
Second, Plaintiffs seek information on the PTI’s contracts and manufacturing
agreements with cosmetic and personal care product companies for which it manufactured
products based on the products Ms. Phelan used. Without discovery, Plaintiff has already
established that PTI manufactured products like Gold Bond foot and body powders, Ammens
medicated product, Desenex powder, and Dr. Scholl’s powder, and that PTI had a role in
supplier selection and knowledge of nationwide sales, at least as to Gold Bond. The
manufacturing agreements, contracts, and PTI’s understanding of sales and distribution of
these products may impact jurisdictional analysis.
57
Ex. 29, Letter from PTI’s Mr. Noland to Luzenac 4/1/2008 (stating that “effective April 1, 2008, Pharma Tech
Industries, Inc. (“PTI”) in Union, MO will merge (on paper only) with our related operation in Royston, Georgia.
The combined company will do business as Pharma Tech Industries.”)
17
Third, Plaintiffs hope to discover information on whether PTI marketed, ran
advertisements and/or directed ads towards Connecticut, or whether it solicited business
relating to its manufacture of the products it manufactured, as relevant to determine whether
PTI availed itself of Connecticut.
Fourth, Plaintiff seeks to discover whether PTI has any in state or out of state
subsidiaries or exclusive partnerships through which it directs activities in or into Connecticut.
Whether PTI’s similar talc products are systematically directed to Connecticut, through
advertisements, solicited sales, voluminous sales, and/or other means, is also relevant. See,
e.g., Ford Motor Co. v. Montana Eighth Judicial District Court, 141 S.Ct. 1017, 1028 (2021)
(explaining that Ford’s systematic contacts with Minnesota are relevant to determine whether
exercise of personal jurisdiction is justified when the cause of action involves injuries deriving
from similar forum-related activities).
Fifth, Plaintiffs seek to discover whether PTI shipped items directly to distributors in
Connecticut or surrounding New England states, and whether it had an understanding as to
whether those products, that it shipped on behalf of MHI, Chattem, or another talc product
company for which it manufactured powder products, would be sold to Connecticut residents.
CONCLUSION
For the reasons stated above, Plaintiff respectfully requests that this Court deny PTI’s
motion to dismiss for lack of personal jurisdiction. Alternatively, Plaintiff asks the Court to
allow her to complete pending jurisdictional discovery before ruling on this matter.
Respectfully submitted,
THE PLAINTIFF
By s/Rachel Gross
Rachel Gross
Admitted Pro Hac Vice
Dean Omar Branham Shirley, LLP
18
302 N. Market Street, Suite 300
Dallas, TX. 75202
T: 214-722-5990
F: 214-722-5991
Email: rgross@dobslegal.com
And
By: s/Brian P. Kenney
Brian P. Kenney, 423477
Early, Lucarelli, Sweeney &
Meisenkothen, LLC
One Century Tower, 11th Floor
265 Church St., PO Box 1866
New Haven, CT 06508-1866
203-777-7799 p
203-785-1671 f
Email: bkenney@elslaw.com
CERTIFICATION
This is to certify that a copy of the foregoing has been served this 21st day of March
2024 to all counsel of record.
By s/423477
Brian P. Kenney
19
EXHIBIT 1
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Docket Number: FBT-CV-23-6124450-S
Case Name: PHELAN, MARLENE v. ARKEMA, INC. Et Al
Type of Transaction: Pleading/Motion/Other document
Date Filed: Oct-30-2023
Motion/Pleading by: EARLY LUCARELLI SWEENEY & MEISENKOTHEN L (409080)
Document Filed: 185.00 AMENDED COMPLAINT
First Amended Complaint
Date and Time of Transaction: Monday, October 30, 2023 3:47:27 PM
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IN RE: ASBESTOS LITIGATION
DOCKET NO. FBT-CV23-6124450-S : SUPERIOR COURT
:
: J.D. OF FAIRFIELD
MARLENE THERESA PHELAN, :
:AT BRIDGEPORT
Plaintiff, :
VS. :
:
ARKEMA INC. : OCTOBER 30, 2023
f/k/a Pennwalt Corporation; :
AVON PRODUCTS, INC.; :
BARRETTS MINERALS INC.; :
BLOCK DRUG COMPANY, INC. :
individually and as successor-in-interest to The Gold :
Bond Sterilizing Powder Co. a/k/a The Gold Bond Co.; :
BRENNTAG NORTH AMERICA, INC. :
individually and as successor-in-interest to Mineral :
And Pigment Solutions, Inc. and Whittaker, Clark & :
Daniels, Inc.; :
BRENNTAG SPECIALTIES, LLC :
f/k/a Brenntag Specialties, Inc. f/k/a Mineral And :
Pigment Solutions, Inc. successor-in-interest to :
Whittaker, Clark & Daniels, Inc.; :
BRISTOL-MYERS SQUIBB COMPANY :
individually, d/b/a, and as successor-in-interest to :
Charles of the Ritz Inc., Lavin-Charles of the Ritz, Jean :
Naté, and Charles Ammen Company; :
CHARLES B. CHRYSTAL COMPANY, INC.; :
CHATTEM, INC. :
individually and as successor to Martin Himmel, Inc., :
successor to Block Drug Company Inc., successor to :
The Gold Bond Sterilizing Powder Company a/k/a The :
Gold Bond Company, successor to Gold Bond :
Pharmaceutical Corporation; :
CLARIANT CORPORATION :
individually and as successor-in-interest to A Sud- :
Chemie AG Company d/b/a L.A. Salomon, Inc; :
COLGATE-PALMOLIVE COMPANY; :
COLOR TECHNIQUES, INC.;
COSMETIC SPECIALTIES, INC.;
COTY INC.
individually and as successor-in-interest to CoverGirl
Cosmetics;
CVS PHARMACY, INC.;
THE ESTÉE LAUDER COMPANIES, INC.;
ESTÉE LAUDER, INC.;
ESTÉE LAUDER INTERNATIONAL, INC.;
FISONS CORPORATION;
GSK CONSUMER HEALTH, INC.
f/k/a Novartis Consumer Health Inc. f/k/a CIBA Self-
Medication Inc. as successor to CIBA-Giegy
Corporations;
HIMMEL MANAGEMENT CO. LLC
a/k/a Himmel Group, formerly d/b/a Martin Himmel
Inc., individually and as successor to Block Drug
Company Inc., successor to The Gold Bond Sterilizing
Powder Co. a/k/a The Gold Bond Co.;
HIMMEL MEDIA LLC
individually and as successor to Block Drug Company
Inc., successor to The Gold Bond Sterilizing Powder
Co. a/k/a The Gold Bond Co.;
IMI FABI (DIANA) LLC;
IMI FABI (USA) INC.;
IMI FABI LLC;
JANSSEN PHARMACEUTICALS, INC.
individually and as successor-in-interest to Johnson &
Johnson subsidiaries named Johnson & Johnson
Consumer Inc., both prior to and after its 2021
restructurings and colloquially known as “Old JJCI”
and “New JJCI”;
JOHNSON & JOHNSON;
JOHNSON & JOHNSON HOLDCO (NA) INC.
f/k/a Johnson & Johnnson Consumer Inc., individually
and as successor-in-interest to Johnson & Johnson
subsidiary "Old JJCI";
KENVUE, INC.
individually and as successor-in-interest to Johnson &
Johnson Consumer Inc.;
L’ORÉAL USA, INC.
individually and d/b/a Lancôme and Maybelline;
L’ORÉAL USA PRODUCTS INC.
individually and d/b/a Lancôme and Maybelline;
MACY’S, INC.;
MAYBELLINE LLC;
MERCK & CO., INC.
2
individually and as successor-in-interest to Schering-
Plough Corporation, successor-in-interest to Scholl,
Inc.;
MINERALS TECHNOLOGIES INC.;
NOXELL CORPORATION;
PFIZER INC.;
PRESPERSE CORPORATION;
THE PROCTER & GAMBLE COMPANY
individually and as successor-in-interest to Noxell
Corporation;
PTI UNION, LLC
d/b/a Pharma Tech Industries individually and as
successor-in-interest to Pharma Tech Industries, Inc.
f/k/a Black Creek Corporation;
SAADIA GROUP LLC
individually and as successor-in-interest to Le Tote,
Hudson’s Bay Company, NRDC Equity Partners,
Federated Department Stores, The May Department
Stores Company, and Associated Dry Goods, all d/b/a
Lord & Taylor;
SANOFI-AVENTIS U.S. LLC
individually and as successor-in-interest to Fisons
Corporation;
SHISEIDO AMERICAS CORPORATION
individually and as successor-in-interest to Bare
Escentuals Beauty, Inc.;
SPECIALT
Preview
FBT-CV23-6124450-S : MARLENE PHELAN, : SUPERIOR COURT Plaintiff, : : J.D. OF FAIRFIELD VS. : : AT BRIDGEPORT ARKEMA, INC., ET AL., : Defendants : MARCH 21, 2024 PLAINTIFF’S OPPOSITION TO DEFENDANT, PTI UNION, LLC’S RENEWED MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF PERSONAL JURISDICTION Plaintiff Marlene Phelan opposes PTI Union, LLC’s (“PTI”) renewed motion to dismiss for lack of personal jurisdiction. Because this Court’s exercise of jurisdiction over PTI satisfies Connecticut’s long-arm statute and due process requirements, PTI’s motion should be denied. Alternatively, Ms. Phelan respectfully requests an opportunity to complete jurisdictional discovery. INTRODUCTION Plaintiff Marlene Phelan is suffering from malignant mesothelioma, an incurable terminal cancer caused by exposure to asbestos. She has been a Connecticut resident for approximately 60 years. Plaintiff, in her First Amended Complaint, alleged that (1) PTI manufactured and packaged personal care products containing talc, including Gold Bond talc products, Ammens talc products, Desenex talc products, and Dr. Scholl’s talc products; (2) the talc used by PTI to manufacture those products contained asbestos; and (c) Ms. Phelan’s exposure to and use of talc-containing personal care products, including the products listed above, caused or contributed to her development of mesothelioma. The vast majority of Ms. Phelan’s exposure to and use of asbestos-containing talc products attributable to PTI occurred in Connecticut, where she also purchased these products. PTI is subject to this Court’s jurisdiction, and the First Amended Complaint so establishes. First, Plaintiff’s detailed complaint alleges Connecticut contacts and relevant forum-related facts that establish the Court’s jurisdiction over PTI. Second, PTI’s evidence, in the form of an affidavit by Michael Brasher, does not fully address the facts in the First Amended Complaint, nor does it provide any information as to PTI’s contacts with Connecticut. Third, even if the Court considers evidence outside of the First Amended Complaint, Plaintiff’s evidence establishes that (a) she was exposed to and used talc products, including Gold Bond powders, Desenex powders, Ammens powders, and Dr. Scholls powders in Connecticut; (b) PTI manufactured and packaged those products, (c) PTI used asbestos- containing talc in those products, and (d) PTI knew, could have known, and certainly should have known, that the products it made for manufacturers of these major brands would be sold in Connecticut and/or used by consumers in Connecticut. Under these circumstances, this Court’s exercise of jurisdiction over PTI satisfies due process requirements. PTI’s motion to dismiss should be denied, especially at this early stage. Alternatively, Ms. Phelan asks the Court for an opportunity to complete pending jurisdictional discovery to obtain relevant information about PTI’s contacts with Connecticut. STATEMENT OF FACTS A. Jurisdictional facts alleged in the Complaint. Ms. Phelan was exposed to asbestos-containing talc powder products between the 1950s and 2023: The plaintiff, MARLENE THERESA PHELAN, was exposed to asbestos and/or asbestos-containing talcum powder products and talc make-up products at various times in her life, from approximately the 1950s to 2023, through her personal use of asbestos-containing talcum powder products and talc make-up products on herself and on her children. Such exposure in the State of Connecticut contributed in part or totally to [her] contraction of asbestos-related mesothelioma and other asbestos-related pathologies.1 1 Ex. 1, First Amended Complaint, 10/30/23, ¶ 59. 2 The First Amended Complaint further states that Ms. Phelan was exposed to, and she inhaled and/or ingested asbestos dust and that asbestos dust is attributable to asbestos-containing products which were contracted for, mined, milled, processed, manufactured, designed, tested, assembled, fashioned, fabricated, packaged, supplied, distributed, delivered, marketed and/or sold by the named defendants.2 The Complaint also alleges that each defendant reasonably expected for its asbestos-containing talc product or component to reach Connecticut by placing the product in the stream of commerce and knowing it would be consumed by users like Ms. Phelan, in Connecticut.3 Relevant here, PTI is named for being engaged in the business of manufacturing and processing asbestos-containing Gold Bond talc products, Ammens talc products, Desenex talc products, and Dr. Scholl’s talc products.4 The Complaint also alleges that PTI did substantial business in Connecticut, including selling and distributing dangerous and defective products it manufactured in the State of Connecticut.5 The Complaint specifically states, as to jurisdiction, The Defendants are corporations, companies or other business entities which, during all times material hereto, and for a long time prior thereto have been, and/or are now engaged, directly or indirectly, in the manufacturing, producing, selling, merchandising, supplying, distributing, and/or otherwise placing in the stream of commerce, asbestos-containing products. Courts of the State of Connecticut have personal jurisdiction over all Defendants. Plaintiff’s claims against the Defendants, as defined herein, arise out Defendants’ purposeful efforts to serve directly or indirectly the market for their asbestos and/or asbestos-containing products in this State, either through direct sales or through utilizing an established distribution channel with the expectation that their products would be purchased and/or used within the State of Connecticut.6 2 Id., ¶ 61. 3 Id., ¶¶ 57-59. 4 Id., ¶ 47. The First Amended Complaint contains substantial allegations regarding PTI’s successor liability to Pharma Tech Industries and Black Creek Corporation. Id., ¶¶ 98-119. 5 Id. 6 Id., ¶¶ 2-3. 3 PTI’s product sales in Connecticut caused Ms. Phelan’s injuries: “The exposures to this Defendant’s products, actions, inactions, and/or other activities, which caused or contributed to cause Plaintiff’s disease and injury, occurred in the State of Connecticut, and arose out of the business Defendant conducted in the State of Connecticut.”7 The First Amended Complaint states the Court has personal jurisdiction based on the Connecticut long-arm statute, including from PTI’s “[c]ommission of a tortious act in whole or in part in this State” and “[e]xposing Plaintiff to asbestos dust, fibers and/or particles generated from the ordinary and foreseeable use of the asbestos-containing products it sold, supplied, distributed, incorporated, and/or otherwise placed in the stream of commerce in the State of Connecticut.”8 B. Connecticut contacts to date without the benefit of discovery. 1. Ms. Phelan was exposed to cosmetic talc products in Connecticut, diagnosed with mesothelioma in Connecticut, and is currently receiving medical treatment in Connecticut. Ms. Phelan was born in 1948.9 She has lived in Connecticut since she was 15 years old.10 She was exposed to cosmetic talc products starting when she was between 5 and 8 years old and continuing until her diagnosis with mesothelioma in January 2023.11 Therefore, most of Ms. Phelan’s exposure to and use of asbestos-containing talc products occurred in Connecticut. She recalls using Gold Bond, Ammens, and Desenex body powders on herself daily after showering, and on her children during diaper changes.12 She also used Gold Bond, Desenex, and Dr. Scholl’s talcum powders in her shoes for odor control several times a week.13 7 Id., ¶ 47. 8 Id., ¶ 4. 9 Ex. 2, Marlene Phelan Dep., Vol. 5, 8/14/23, at 817:20-21. 10 Id. at 818:3-9. 11 Id. at 824:3-21. 12 Id. at 829:21-830:6, 831:23-832:3, 839:15-842:9. 13 Id. at 849:7-850:6. 4 In January 2023, Ms. Phelan was diagnosed with malignant mesothelioma at Middlesex Hospital in Middletown, Connecticut, and she has received her treatment there and at Yale.14 2. Ms. Phelan was exposed to finished products in Connecticut manufactured by PTI. PTI is “the largest pharmaceutical contract manufacturer and packager of powder products in the world[.]”15 PTI has been in business for over 50 years and has “two centralized shipping and manufacturing locations”—one in Union, Missouri and one in Royston, Georgia.16 According to PTI, those two manufacturing locations provide “access to 40% of the [U.S.] population within a 4-hour shipping radius.”17 Based on its website, its customers include major personal care product brands, including Johnson & Johnson, Chattem and Sanofi.18 PTI’s “customers include six of the top ten global pharmaceutical corporations.”19 In 2007, Pharma Tech’s annual revenue was $55 million, and its key customers included Johnson & Johnson, Schering Plough, Chattem, and Novartis.20 PTI served more than a dozen such clients.21 In 2013, Pharma Tech Industries reported $95 million in annual revenue.22 Arthur Guilford bought the Gold Bond powder formula from the Rhode Island State Medical Association in 1882.23 In 1908, he began mixing Gold Bond powder in his small 14 Ex. 3, Marlene Phelan Dep., Vol. 2, 8/9/23, at 270:9-272:19. 15 Ex. 4, Bob Sperber, New Pharma Tech expansion, lab, packworld.com, Aug. 5, 2013, available at https://www.packworld.com/news/contract-manufacturing-and-packaging/press-release/13362944/new-pharma- tech-expansion-lab (last visited July 24, 2023); Ex. 5, Pharma Tech Brochure; Ex. 6, PTI Presentation, dated Mar. 20, 2013. 16 Ex. 7, “About” Webpage, Pharm-Tech.com; available at https://pharma-tech.com/about/ (last visited July 24, 2023); see also Ex. 8, Press Release: Pharma Tech Industries expands in PTI, creating 20 new jobs, Missouri Department of Economic Development, dated June 3, 2014; Ex. 9, SYSPRO Case Study, dated August 2008. 17 Ex. 7, “About” Webpage, Pharm-Tech.com; available at https://pharma-tech.com/about/ (last visited July 24, 2023). 18 Ex. 10, “Home” Page, Pharma-Tech.com, available at https://pharma-tech.com, last visited July 23, 2023. 19 Ex. 7, “About” Webpage, Pharm-Tech.com; available at https://pharma-tech.com/about/ (last visited July 24, 2023). 20 Ex. 11, E-mail from PTI’s Franchise Director, John Thaler to David Keller (Business Developer with Johnson & Johnson Consumer Products Company), dated Aug. 18, 2007. 21 Ex. 4, New Pharma Tech expansion, lab article. 22 Ex. 6, PTI Presentation, dated Mar. 20, 2013. 23 Ex. 12, Gold Bond History at p. 2. 5 Massachusetts’ shop and selling it to New England consumers.24 In 1912, Mr. Guilford sold the formula and manufacturing rights to John M. Chapman, who expanded distribution.25 In 1930, Timothy Shea joined the company, then known as “The Gold Bond Sterilizing Powder Company.”26 Mr. Shea went from a manager to the company’s sole owner in 1965. The business continued operating out of Massachusetts, and the distribution of sales continued to expand.27 In 1990, the Shea family sold the business to Martin Himmel Inc. (“MHI”) who turned the then more regional Gold Bond powder product into a nationally available product.28 In the early 90s, Mr. Himmel added other types of powder products and cream-based products to the Gold Bond product line.29 Sometime after MHI acquired the Gold Bond product line, PTI began manufacturing powder products for MHI.30 PTI made and shipped Gold Bond products directly to Connecticut and the market impacting Connecticut. According to inventory records, in 1995 alone, there was more than $2.5 million worth of Gold Bond products stored in various distribution warehouses around the country; PTI alone had $450,000 of that inventory.31 According to the manufacturing agreement between PTI and MHI, PTI was responsible for shipping products to various locations for MHI.32 MHI products were sold in stores nationwide in chains like CVS.33 MHI products were also sold in local stores, including Ann & Hope stores and Brooks Pharmacy— 24 Ex. 12, Gold Bond History at p. 2. 25 Ex. 12, Gold Bond History at p. 2. 26 Ex. 12, Gold Bond History at p. 2. 27 Ex. 12, Gold Bond History at p. 2. 28 Ex. 12, Gold Bond History at p. 3. 29 Ex. 12, Gold Bond History at p. 3. 30 Ex. 13, Deposition of Matthew Lochstampfor for Chattem, Inc. (“Lochstampfor Depo.”), Arevalo v. Asbestos Corp., Ltd., Middlesex County, Superior Court of New Jersey, March 7, 2018, at 69:21-70:9, 72:3-25; see also Ex. 14, Manufacturing Agreement between Pharma Tech Industries, Inc. and Martin Himmel, Inc. (signed by Edward T. Noland on behalf of Pharma Tech Industries), dated Feb. 14, 1996. 31 Ex. 15, Martin Himmel Inc.’s Finished Goods Inventory by Location, dated Dec. 31, 1995, and Feb. 29, 1996. 32 Ex. 14, Manufacturing Agreement between Pharma Tech Industries, Inc. and Martin Himmel, Inc., dated Feb. 14, 1996, at p. 20. 33 See generally, Ex. 16, Martin Himmel Inc.’s 1996 broker summary, and estimated store inventory log. 6 stores located primarily in New England states, including Connecticut.34 For MHI Gold Bond products manufactured by PTI, Mr. Edward T. Noland, the head of PTI, was responsible for securing the talc to be used in MHI powder products, and he finalized pricing with the talc supplier directly.35 Chattem, Inc. (“Chattem”)36 acquired the Gold Bond brand from MHI in 1996.37 Chattem, like Himmel before it, hires “contract manufacturing organizations” or “CMOs” to manufacture products.38 PTI has been Chattem’s exclusive CMO for Gold Bond powder products since it acquired the brand in 1996: Q. How – how long has Chattem done business with PTI? That is Pharma Tech, Inc.; is that correct? A. Yes. Q. How long have they done business? A. Since 1996, when we acquired the brand.39 After Chattem acquired the Gold Bond product line from MHI, it entered into an amended manufacturing agreement with PTI also signed by Mr. Noland.40 The talc incorporated into Gold Bond between 1996 and 2014 came from the Barretts mine in Dillon, Montana, and was designated by the trade name MP 60-30.41 In other litigation, Whitaker Clark & Daniels has 34 Ex. 16, Martin Himmel Inc.’s 1996 broker summary, and estimated store inventory log; Ex. 17, Ann & Hope Stores Wikipedia Webpage (last visited Jul. 30, 2023); Ex. 18, Brooks Pharmacy Wikipedia Page (last visited Aug. 14, 2023). 35 Ex. 14, Manufacturing Agreement between Pharma Tech Industries, Inc. and Martin Himmel, Inc., dated Feb. 14, 1996, at p. 24. 36 In 1879, Chattem was founded as “The Chattanooga Medicine Company” and in 1909 it was incorporated as such in Tennessee. It later changed its name to Chattem Drug & Chemical Company. Since 1978, it has operated under the name Chattem, Inc. In 2010, Sanofi-Aventis acquired 100% of Chattem. Thus, it is now a wholly-owned subsidiary of Sanofi or one of Sanofi’s affiliated companies. See Ex. 19, Defendant Chattem, Inc.’s Response to Plaintiff’s Standard Talc Liability Interrogatories (“Chattem Talc Liability Rogs”), Tippin v. 3M Company, Index No. 190062/2021, Supreme Court of New, New York County, dated Feb. 21, 2022, at p. 1. 37 Ex. 13, Lochstampfor Depo., at 63:8-12; Ex. 12, Gold Bond History at p. 3. 38 Ex. 13, Lochstampfor Depo., at 34:10-18. 39 Ex. 13, Lochstampfor Depo., at 43:17-22; Ex. 19, Chattem Talc Liability Rogs, at 2 and 15; Ex. 20, Bob Clausen’s Internal E-mail to Tami Riley, dated June 18, 2015. 40 Ex. 21, Amendment to Manufacturer’s Manufacturing Agreement between Pharma Tech Industries and Chattem, dated April 26, 1996; see also Ex. 22, Manufacturing and Supply Agreement between Chattem and Pharma Tech Industries (signed by Edward Noland on behalf of Pharma Tech Industries), dated Jan. 1, 2000. 41 Ex. 13, Lochstampfor Depo., at 55:20-58:4. 7 produced a summary of its supply of Barretts talc to “Pharma Tech Industries” in Union, Missouri, which is believed to be the same location as PTI’s facility.42 From at least 2005 until 2014, Barretts sold significant quantities of its talc to PTI for use in Gold Bond talcum powders (and sold through the same talc distributors in 1996 to 2004).43 Based on these transactions and its testimony, Barretts considers Pharma Tech Industries and PTI the same.44 PTI was heavily involved in the Gold Bond powder products development and manufacture. Records show PTI contacted talc suppliers, negotiated prices, and recommended alternative talc grades and talc suppliers to be used in its customer’s products.45 For example, in 2001, in an effort to obtain a competitive price from Imerys/Luzenac for talc, and to convince Chattem to make the switch from Barretts’ talc to Luzenac’s talc, PTI reported that it was bottling approximately 3 million pounds of Gold Bond foot powder annually.46 On November 17, 2003, Luzenac directly contacted Linda Woolfe, in charge of purchasing for Pharma Tech, to quote new talc pricing for Pharma Tech’s talc supply.47 Every year, PTI presented a business review to Chattem, in which it reported the volume of Gold Bond products manufactured and the sales of Gold Bond products for the year.48 For example, in 2014, PTI manufactured close to 13 million bottles (of varying sizes) of Gold Bond powder products that generated $9 million dollars’ worth of sales.49 These records also show PTI knew of the availability of cornstarch, and yet, it continued to solicit talc from suppliers.50 PTI tested raw materials on site, and that 42 Ex. 23, Whitaker Clark & Daniels sales records. 43 Ex. 24, Deposition Testimony of Darin Lindsay for Barretts Minerals, Inc. (“Lindsay Depo.”), Woods v. Kolmar Laboratories, Inc., et al., Monroe County, Supreme Court of New York, taken June 22, 2022, at 148:5- 152:22; 157:11-163:10; 190:4-191:21. 44 Ex. 24, Lindsay Depo., at 148:5-152:22; 157:11-163:10; 190:4-191:21. 45 See generally, Ex. 25, Imerys/Luzenac Correspondence and Call Reports. 46 Ex. 25, Imerys/Luzenac Correspondence and Call Reports, at p. 4. 47 Ex. 25, Imerys/Luzenac Correspondence and Call Reports, at p. 4. 48 See, e.g., Ex. 26, Chattem Annual Business Review, dated Nov. 13, 2014. 49 See, e.g., Ex. 26, Chattem Annual Business Review, dated Nov. 13, 2014. 50 Ex. 25, Imerys/Luzenac Correspondence and Call Reports, at 3-4. 8 testing included testing for asbestos.51 Yet, PTI continued to manufacture products using talc, even though, as a company with its own testing capabilities, a member of the cosmetic and personal care products industry, and a company in regular contact with several talc suppliers, PTI knew or had ample reason to know, that the talc it was using to manufacture personal care powder products contained asbestos.52 PTI began manufacturing Johnson’s Baby Powder for Johnson & Johnson in 2005 out of a facility in Royston, Georgia.53 J&J referred to PTI as “a contract manufacturer based in Union, Missouri.”54 While PTI Union attempts to argue that it remains a separate entity from PTI Royston, PTI’s own Chairman and CEO stated that “effective April 1, 2008, Pharma Tech Industries, Inc. (“PTI”) in Union, MO will merge (on paper only) with our related operation in Royston, Georgia. The combined company will do business as Pharma Tech Industries.”55 ARGUMENT AND AUTHORITIES PTI is subject to specific personal jurisdiction under Connecticut’s long-arm statute, Gen. Stat. § 33-929(f)(3), and this Court’s exercise of jurisdiction over it comports with due process requirements. A. The allegations in Plaintiff’s detailed Complaint establish this Court’s jurisdiction. 1. Legal Standard. Courts deciding a motion to dismiss “must determine not the merits of the claim or even its legal sufficiency, but rather, whether the claim is one that the court has jurisdiction to hear and decide.” Hinde v. Specialized Education of Connecticut, Inc., 147 Conn. App. 730, 51 Ex. 27, PTI Certificates of Analysis. 52 See generally, Ex. 25, Imerys/Luzenac Correspondence and Call Reports. 53 Ex. 28, J&J external audit of PTI in 2010 at pg. 3 of 11. 54 Ex. 28, J&J external audit of PTI in 2010 at pg. 3 of 11. 55 Ex. 29, Letter from PTI’s Mr. Noland to Luzenac 4/1/2008. 9 740-41, 84 A.3d 895 (2014). While plaintiff bears the burden of establishing the court has jurisdiction over a foreign corporation, the allegations in the complaint are to be construed in a manner most favorable to plaintiff. Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007). “The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone[.]” Id. Affidavits are insufficient to establish facts unless the parties agree on the facts, and there is no genuine issue as to a material fact. Id. 2. This Court has personal jurisdiction over PTI based on Plaintiff’s prima facie evidence. With the allegations accepted as true, Plaintiff’s First Amended Complaint demonstrates that this Court can exercise personal jurisdiction over PTI. In her complaint, Plaintiff alleged PTI conducted substantial business in Connecticut by placing its asbestos- containing product in the stream of commerce, and it did so knowing that the product would reach Ms. Phelan and/or plaintiffs like her. The First Amended Complaint also alleges that Ms. Phelan was exposed to asbestos-containing talcum powder products between the 1950s and 2023, and that includes exposure to PTI’s asbestos-containing products. It states that Ms. Phelan’s exposure to PTI’s asbestos-containing products in Connecticut caused or contributed to her mesothelioma diagnosis. By pleading these facts, Plaintiff has established (1) PTI availed itself of Connecticut’s market through its own actions, (2) Ms. Phelan purchased and used asbestos-containing talcum powder products manufactured by PTI in Connecticut, and (3) the resulting exposure caused or contributed to her mesothelioma and injuries. Considering these facts together, and taking them as true, PTI manufactured products knowing that those products would ultimately be sold and used in Connecticut. PTI, in its affidavit, has not denied that Ms. Phelan used Gold Bond, Desenex, Ammens, or Dr. Scholl’s products in Connecticut, 10 or that those products were not available for purchase in this state. These facts satisfy not just Connecticut’s long-arm statute, but also due process requirements. Based on this alone, Ms. Phelan asks the Court to deny PTI’s motion to dismiss for lack of personal jurisdiction. Cogswell, 282 Conn. at 516. B. PTI is subject to this Court’s jurisdiction. To exercise specific personal jurisdiction over a defendant, the defendant’s conduct must fall within Connecticut’s long-arm statute and the court’s exercise of jurisdiction over the defendant must comport with constitutional due process requirements. Cogswell, 282 Conn. at 514-515. Both are satisfied here. 1. Connecticut’s Long-Arm Statute. Relevant to this case, Connecticut’s long-arm statute permits courts to exercise jurisdiction over foreign corporations under the following circumstances: Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows: . . . (3) out of the production, manufacture or distribution of goods by such corporation with the reasonable expectation that such goods are to be used or consumed in this state and are so used or consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers; or (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance. Conn. Gen. Stat. Ann. § 33-929(f). Here, Ms. Phelan’s cause of action arises out of PTI’s manufacture and distribution of Gold Bond powder products, Ammens powder products, Desenex powder products, and Dr. Scholl’s powder products, and PTI had a reasonable 11 expectation that such products would be used and/or consumed in Connecticut. In a factually similar case, Rice Estate of Rice v. American Talc Company, the Superior Court held: a plaintiff’s cause of action arises out of a foreign corporation’s production, manufacture, or distribution of goods if, at the time the foreign corporation engaged in the production, manufacture, or distribution of goods with the reasonable expectation that such goods would be and are so used or consumed in this state, it was reasonably foreseeable that it could be sued in Connecticut on a cause of action similar to that being brought by the plaintiff. No. FBTCV156053658S, 2017 WL 4873098, *4 (Conn. Super. Sept. 7, 2017) (finding that defendant distributed its talc with the reasonable expectation that the talc would be used in Connecticut based on evidence of the defendant’s knowledge of where its products were being shipped, the number of products it sold in Connecticut, contacts with companies in the state, and percent of annual sales in Connecticut). Here, when PTI manufactured and distributed Gold Bond products for MHI, it agreed to ship the products directly to distributors and/or stores, and some of the stores at which Gold Bond products were sold were local to the Northeast. Even after PTI began manufacturing for Gold Bond, PTI was aware of annual product sales and distribution as it presented that information to Chattem, the owner of Gold Bond powder products, on an annual basis. PTI was involved in obtaining competitive talc supplies, testing products, and shipping them—regardless of whether it did so based on an internal business agreement that should damage occur it was considered the brand owner’s product, not PTI’s product. Mr. Brasher’s statements in his affidavit that Chattem controlled the shipment of Gold Bond products is unavailing,56 especially under Connecticut’s long-arm statute, which explicitly states, it is immaterial where the products were manufactured, distributed and sold, and it is equally immaterial whether the products were directly shipped 56 Michael Brasher Aff., ¶¶ 5-6, Exhibit A to PTI’s Motion. 12 by the manufacturer or by another source, as long as the defendant could reasonably be expected to know the product would be sold and consumed by Connecticut residents. Ms. Phelan’s cause of action also arises out of PTI’s tortious conduct in the state. As noted above, Ms. Phelan purchased, was exposed to, and/or used asbestos-containing talcum powder products manufactured by PTI, including Gold Bond powder products, Ammens powder products, Desenex powder products, and Dr. Scholl’s powder products. Ms. Phelan breathed in the asbestos dust released by these products in Connecticut. Accordingly, she was injured in Connecticut. Her subsequent mesothelioma diagnosis and treatment has also occurred in Connecticut. Connecticut courts have found jurisdiction under similar circumstances. For instance, in Simeone v. Federal Press Co., the court found personal jurisdiction over a manufacturer of machines based its products being shipped to an intermediate company in the state, and the tortious injury/conduct occurring in the state. 40 Conn. Supp. 173, 169-70, 485 A.2d 587 (Conn. Super. 1984). Similarly, in Sheridan v. Cadet Chemical Corp., the court found it had jurisdiction over a foreign corporation based on Connecticut’s long-arm statute because the injuries and tort occurred in Connecticut. The court so found even though the defendant was not otherwise connected to Connecticut based on the defendant’s improper loading of a truck with chemicals in New York and the truck’s subsequent explosion in Connecticut. 25 Conn. Supp. 17, 22, 195 A.2d 766 (Conn. Super. 1963). In sum, PTI’s conduct falls under Connecticut’s long-arm statute because it knew or certainly should have known that its products were being sold to Connecticut residents. Additionally, PTI is subject to this Court’s jurisdiction because its conduct of manufacturing a defective and fatal product containing asbestos caused or contributed to Ms. Phelan’s mesothelioma, and that injury and diagnosis occurred in Connecticut. 13 2. Due Process Requirements. To satisfy due process, PTI must have minimum contacts with Connecticut and exercising jurisdiction over PTI must be substantially just and fair. Samelko v. Kingstone Insurance Company, 329 Conn. 249, 266-67, 184 A.3d 741 (Conn. 2018). Here, both requirements are satisfied. a. Minimum Contacts. A defendant purposefully avails itself of the privilege to conduct activities in a forum state, and as a result invokes the protections of the forum state, when its contacts with the state are not “random, fortuitous, or attenuated[.]” Id. Based on its own actions and purposeful availment of the state’s benefits, a defendant should reasonably anticipate being haled into court in that forum. Id. PTI purposefully availed itself of the privilege of conducting activities in Connecticut by placing its asbestos-containing talc into the stream-of-commerce. As set forth supra, since the 1990s, PTI has manufactured Gold Bond powder products for MHI until 1996, and Chattem thereafter. For MHI, PTI shipped those manufactured products directly to distribution centers as per their agreement. MHI records show that those products were being sold in stores such as Ann & Hope stores and Brooks Pharmacy stores—stores that are primarily located in the Northeast, including Connecticut. In 2007, PTI had an annual revenue of $55 million, and in 2013 its annual revenue was $95 million. Not only does PTI know, or have ample reason to know, that powder products its manufacturing will be sold nationwide (or even globally), but it kept records of the volume of production and nationwide sales. According to its own website, PTI provides access to 40% of the United States population within four hours. The very purpose of its serving as a powder product contract manufacturer for major personal care product brands and pharmaceutical companies, is to produce products that consumers will use 14 nationwide. For example, in 2001 alone, PTI bottled approximately three million pounds of Gold Bond foot powder. In 2014, PTI filled over 13 million bottles with Gold Bond powders, and it noted $9 million in sales. PTI’s knowledge of the volume of Gold Bond production and the total sales for the year shows it was an active participant in the manufacturing process, including the sales and distribution of Gold Bond products. Given its heavy involvement in the manufacturing process and sales of talcum powder products, PTI should have anticipated litigation ensuing from its failure to warn its customers or global consumers about the hazards associated with the asbestos-containing talc it used in the products it manufactured. Under these circumstances, this Court’s exercise of jurisdiction over PTI “results from [PTI’s] ‘voluntary’ acts and [its] ’foreseeable’ consequences and is not premised on ‘random, fortuitous, or attenuated contacts[.]’” Samelko, 329 Conn. 266-67. b. Fair Play and Substantial Justice. Connecticut courts look at five factors to determine whether assertion of personal jurisdiction over a defendant comports with fair play and substantial justice. Those factors include, (1) the burden on the defendant; (2) the interest of the forum state in adjudicating the case; (3) the plaintiff’s interest in obtaining relief; (4) the interstate judicial system’s interest in obtaining efficient resolution; and (5) shared interest of the states in furthering social policies. Samelko, 329 Conn. at 269-70. Based on these factors, exercising jurisdiction over PTI is fair and reasonable. In a case like this, where there are numerous defendants, who are alleged to be liable for tort injuries flowing from the mining, processing, supplying, distribution, manufacture, and/or retail sales of talc and/or finished talcum powder products, finding “the best forum” for all, or even any, defendants would be difficult, if not impossible. There is no indication that suing PTI in its “home” state or the state in which it operates its principal place of business 15 would aid this litigation. Ms. Phelan’s exposure to asbestos-containing products manufactured by PTI occurred in Connecticut. Those products were distributed to and sold in stores in Connecticut. These factors favor litigation in Connecticut. It would not be favorable or efficient to require Plaintiff to refile this case in various jurisdictions and litigate this matter piecemeal based on each defendant’s preference to be in a different court. It would not be an efficient use of judicial resources, nor would it be time-efficient and/or cost-efficient. Connecticut is the most natural forum. Plaintiffs have a clear interest in obtaining relief in the only jurisdiction where all defendants can be sued simultaneously, and where the many non-party witnesses live and are subject to subpoena. As the state where Ms. Phelan sustained injuries from her exposure to asbestos- containing personal care talc products manufactured by PTI, Connecticut has a keen interest in providing residents with “‘a convenient forum for redressing injuries inflicted by out-of- state actors,’ as well as enforcing their own safety regulations.” Ford Motor Company v. Montana Eighth Judicial District Court, 141 S.Ct. at 1030 (2021) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 (1985)). Plaintiff asks the Court to deny PTI’s motion to dismiss as Connecticut has an interest in this litigation and it is the more natural forum considering all relevant facts. C. In the alternative, Plaintiff asks for the opportunity to complete jurisdictional discovery. In Standard Tallow Corp. v. Jowdy, the Connecticut Supreme Court held that jurisdictional discovery is permitted based on the Connecticut Practice Book § 218 (now § 13- 2). State v. Reservation Services International, Inc., No. HHDCV166071791S, 2017 WL 5930540, *1 (Conn. Super. Nov. 2, 2017). While the determination of whether jurisdictional discovery should be permitted is in the sound discretion of the court, the Practice Book has 16 stated that permitting a party to conduct discovery is mandatory when the information sought will be of assistance to prosecute or defendant an action. Id. To determine and to fully explore the actions and conduct PTI has directed towards this forum, jurisdictional discovery is needed. Plaintiff has propounded written discovery on PTI and those responses are pending. Plaintiff provide some non-exclusive examples of discovery that may reveal relevant to PTI’s Connecticut contacts: First, Plaintiff intends to conduct discovery regarding the true nature of the corporate relationships between PTI Union, Pharma Tech Industries and PTI Royston. Such discovery will determine whether, as PTI Union and PTI Royston were the same entity during certain years, PTI Union can be held responsible for both.57 If so, Plaintiff can hold defendant responsible for manufacturing and distributing Johnson & Johnson products, especially as Plaintiff can likely (if not inevitably) establish that PTI knew full well that the Johnson’s Baby Powder manufactured by it would be sold in Connecticut. Second, Plaintiffs seek information on the PTI’s contracts and manufacturing agreements with cosmetic and personal care product companies for which it manufactured products based on the products Ms. Phelan used. Without discovery, Plaintiff has already established that PTI manufactured products like Gold Bond foot and body powders, Ammens medicated product, Desenex powder, and Dr. Scholl’s powder, and that PTI had a role in supplier selection and knowledge of nationwide sales, at least as to Gold Bond. The manufacturing agreements, contracts, and PTI’s understanding of sales and distribution of these products may impact jurisdictional analysis. 57 Ex. 29, Letter from PTI’s Mr. Noland to Luzenac 4/1/2008 (stating that “effective April 1, 2008, Pharma Tech Industries, Inc. (“PTI”) in Union, MO will merge (on paper only) with our related operation in Royston, Georgia. The combined company will do business as Pharma Tech Industries.”) 17 Third, Plaintiffs hope to discover information on whether PTI marketed, ran advertisements and/or directed ads towards Connecticut, or whether it solicited business relating to its manufacture of the products it manufactured, as relevant to determine whether PTI availed itself of Connecticut. Fourth, Plaintiff seeks to discover whether PTI has any in state or out of state subsidiaries or exclusive partnerships through which it directs activities in or into Connecticut. Whether PTI’s similar talc products are systematically directed to Connecticut, through advertisements, solicited sales, voluminous sales, and/or other means, is also relevant. See, e.g., Ford Motor Co. v. Montana Eighth Judicial District Court, 141 S.Ct. 1017, 1028 (2021) (explaining that Ford’s systematic contacts with Minnesota are relevant to determine whether exercise of personal jurisdiction is justified when the cause of action involves injuries deriving from similar forum-related activities). Fifth, Plaintiffs seek to discover whether PTI shipped items directly to distributors in Connecticut or surrounding New England states, and whether it had an understanding as to whether those products, that it shipped on behalf of MHI, Chattem, or another talc product company for which it manufactured powder products, would be sold to Connecticut residents. CONCLUSION For the reasons stated above, Plaintiff respectfully requests that this Court deny PTI’s motion to dismiss for lack of personal jurisdiction. Alternatively, Plaintiff asks the Court to allow her to complete pending jurisdictional discovery before ruling on this matter. Respectfully submitted, THE PLAINTIFF By s/Rachel Gross Rachel Gross Admitted Pro Hac Vice Dean Omar Branham Shirley, LLP 18 302 N. Market Street, Suite 300 Dallas, TX. 75202 T: 214-722-5990 F: 214-722-5991 Email: rgross@dobslegal.com And By: s/Brian P. Kenney Brian P. Kenney, 423477 Early, Lucarelli, Sweeney & Meisenkothen, LLC One Century Tower, 11th Floor 265 Church St., PO Box 1866 New Haven, CT 06508-1866 203-777-7799 p 203-785-1671 f Email: bkenney@elslaw.com CERTIFICATION This is to certify that a copy of the foregoing has been served this 21st day of March 2024 to all counsel of record. By s/423477 Brian P. Kenney 19 EXHIBIT 1 10/30/23, 3:47 PM You have successfully e-filed! Attorney/Firm: EARLY LUCARELLI SWEENEY & MEISENKOTHEN L (409080) E-Mail: KMANELY@ELSLAW.COM Logout Hide Instructions You have successfully e-filed! Instructions: The information about the item you filed is on this confirmation page. You must print a copy of this page for your records. Choose Print This Page at the top of the page to print your copy. Choose E-File Another Pleading/Motion/Other on this Case to go back to the Select a Motion page to choose another document name and file another document. Choose Return to Superior Court E-Filing Menu to go back to the menu page. Choose Return to Case Detail to look at the documents filed in this case or to file a reclaim in this case. Print This Page Confirmation of E-filed Transaction (print this page for your records) Docket Number: FBT-CV-23-6124450-S Case Name: PHELAN, MARLENE v. ARKEMA, INC. Et Al Type of Transaction: Pleading/Motion/Other document Date Filed: Oct-30-2023 Motion/Pleading by: EARLY LUCARELLI SWEENEY & MEISENKOTHEN L (409080) Document Filed: 185.00 AMENDED COMPLAINT First Amended Complaint Date and Time of Transaction: Monday, October 30, 2023 3:47:27 PM E-File Another Pleading/Motion/Other document on this Case Return to Civil / Family Menu Return to Case Detail Copyright © 2023, State of Connecticut Judicial Branch https://efile.eservices.jud.ct.gov/motion/EFileConfirmation.aspx?crn=4779957&UnID=688900317&Auth=92c3ae20432944b89f0667498c9ddc7f 1/1 IN RE: ASBESTOS LITIGATION DOCKET NO. FBT-CV23-6124450-S : SUPERIOR COURT : : J.D. OF FAIRFIELD MARLENE THERESA PHELAN, : :AT BRIDGEPORT Plaintiff, : VS. : : ARKEMA INC. : OCTOBER 30, 2023 f/k/a Pennwalt Corporation; : AVON PRODUCTS, INC.; : BARRETTS MINERALS INC.; : BLOCK DRUG COMPANY, INC. : individually and as successor-in-interest to The Gold : Bond Sterilizing Powder Co. a/k/a The Gold Bond Co.; : BRENNTAG NORTH AMERICA, INC. : individually and as successor-in-interest to Mineral : And Pigment Solutions, Inc. and Whittaker, Clark & : Daniels, Inc.; : BRENNTAG SPECIALTIES, LLC : f/k/a Brenntag Specialties, Inc. f/k/a Mineral And : Pigment Solutions, Inc. successor-in-interest to : Whittaker, Clark & Daniels, Inc.; : BRISTOL-MYERS SQUIBB COMPANY : individually, d/b/a, and as successor-in-interest to : Charles of the Ritz Inc., Lavin-Charles of the Ritz, Jean : Naté, and Charles Ammen Company; : CHARLES B. CHRYSTAL COMPANY, INC.; : CHATTEM, INC. : individually and as successor to Martin Himmel, Inc., : successor to Block Drug Company Inc., successor to : The Gold Bond Sterilizing Powder Company a/k/a The : Gold Bond Company, successor to Gold Bond : Pharmaceutical Corporation; : CLARIANT CORPORATION : individually and as successor-in-interest to A Sud- : Chemie AG Company d/b/a L.A. Salomon, Inc; : COLGATE-PALMOLIVE COMPANY; : COLOR TECHNIQUES, INC.; COSMETIC SPECIALTIES, INC.; COTY INC. individually and as successor-in-interest to CoverGirl Cosmetics; CVS PHARMACY, INC.; THE ESTÉE LAUDER COMPANIES, INC.; ESTÉE LAUDER, INC.; ESTÉE LAUDER INTERNATIONAL, INC.; FISONS CORPORATION; GSK CONSUMER HEALTH, INC. f/k/a Novartis Consumer Health Inc. f/k/a CIBA Self- Medication Inc. as successor to CIBA-Giegy Corporations; HIMMEL MANAGEMENT CO. LLC a/k/a Himmel Group, formerly d/b/a Martin Himmel Inc., individually and as successor to Block Drug Company Inc., successor to The Gold Bond Sterilizing Powder Co. a/k/a The Gold Bond Co.; HIMMEL MEDIA LLC individually and as successor to Block Drug Company Inc., successor to The Gold Bond Sterilizing Powder Co. a/k/a The Gold Bond Co.; IMI FABI (DIANA) LLC; IMI FABI (USA) INC.; IMI FABI LLC; JANSSEN PHARMACEUTICALS, INC. individually and as successor-in-interest to Johnson & Johnson subsidiaries named Johnson & Johnson Consumer Inc., both prior to and after its 2021 restructurings and colloquially known as “Old JJCI” and “New JJCI”; JOHNSON & JOHNSON; JOHNSON & JOHNSON HOLDCO (NA) INC. f/k/a Johnson & Johnnson Consumer Inc., individually and as successor-in-interest to Johnson & Johnson subsidiary "Old JJCI"; KENVUE, INC. individually and as successor-in-interest to Johnson & Johnson Consumer Inc.; L’ORÉAL USA, INC. individually and d/b/a Lancôme and Maybelline; L’ORÉAL USA PRODUCTS INC. individually and d/b/a Lancôme and Maybelline; MACY’S, INC.; MAYBELLINE LLC; MERCK & CO., INC. 2 individually and as successor-in-interest to Schering- Plough Corporation, successor-in-interest to Scholl, Inc.; MINERALS TECHNOLOGIES INC.; NOXELL CORPORATION; PFIZER INC.; PRESPERSE CORPORATION; THE PROCTER & GAMBLE COMPANY individually and as successor-in-interest to Noxell Corporation; PTI UNION, LLC d/b/a Pharma Tech Industries individually and as successor-in-interest to Pharma Tech Industries, Inc. f/k/a Black Creek Corporation; SAADIA GROUP LLC individually and as successor-in-interest to Le Tote, Hudson’s Bay Company, NRDC Equity Partners, Federated Department Stores, The May Department Stores Company, and Associated Dry Goods, all d/b/a Lord & Taylor; SANOFI-AVENTIS U.S. LLC individually and as successor-in-interest to Fisons Corporation; SHISEIDO AMERICAS CORPORATION individually and as successor-in-interest to Bare Escentuals Beauty, Inc.; SPECIALT