On June 23, 2023 a
EXHIBIT(S) - M (Motion #004) - Plant decision
was filed
involving a dispute between
Melanie Kirschner,
Spence Kirschner,
and
American Art Clay Company, Inc.
A K A Amaco,
Amscan,
Avon Products, Inc.,
Barretts Minerals Inc,
Baxter International, Inc.,
Individually And As Successor-In-Interest To American Hospital Supply Corporation And American Scientific Products,
Bobby Brown Professional Cosmetics, Inc.,
Cardeaux Cosmetics,
Chanel, Inc.,
Clinique Laboratories Llc,
Colgate-Palmolive Company,
Colgate-Palmolive Company,
Individually And As Successor To The Mennen Company,
Conopco Inc.,
Conopco Inc
Chesebrough-Ponds F K A,
Cosmetic Specialties Inc,
Coty Inc.,
Coty Us Llc,
Crayola Llc,
Dixon Ticonderoga,
Donna Karan Company Llc,
Donna Karan International Inc.,
Erno Lazslo Inc,
Estee Lauder Inc.,
Estee Lauder Inc.,
Individually And As Successor To Donna Karan And Bobbi Brown,
G-Ii Apparel Group, Ltd.,
Individually And As Successor To Donna Karan International, Donna Karan And Dkny,
Greenbriar International,
Hansen Permanente Cement, Inc.,
H.M. Royal Inc.,
Imi Fabi Llc,
Janssen Pharmaceuticals Inc,
Johnson&Johnson,
Johnson&Johnson Holdco Na Inc,
Kaiser Gypsum Company, Inc.,
Kenvue Inc,
Kering Americas, Inc.,
Individually And As Successor To Yves Saint Laurent,
Kolmar Laboratories, Inc.,
Larose Industries, Llc,
Individually And As Successor To Roseart,
Loreal Travel Retainer Americas, Inc.
Individually And As Successor To Lancome, Cacharel, Maybelline, Yves Saint Laurent, Vanderbilt,
Loreal Usa Inc.,
Individually And As Successor To Lancome, Cacharel, Maybelline, Yves Saint Laurent, Vanderbilt,
Lvmh Fragrance Brands Us Llc,
Individually And As Successor To G-Iii Apparel Group Ltd., Donna Karan International, Donna Karan And Dkny,
Lvmh Perfumes And Cosmetics, Inc.,
Individually And As Successor To G-Iii Apparel Group Ltd., Donna Karan International, Donna Karan And Dkny,
Macys Inc.
F K A Federated Department Stores, Inc., Individually And As Successor-In-Interest To Broadway Stores, Inc. And Bergdorf Goodman,
Mana Products Inc,
Mary Kay, Inc.,
Mattell, Inc.,
Individually And As Successor To Roseart,
Maybelline Llc,
Mega Brands America Inc.
F K A Rose Art Industries Llc, Individually And As Successor To Roseart,
Mennen Company,
Merle Norman Cosmetics Inc,
Metropolitan Life Insurance Company,
Minerals Technologies Inc,
New Avon, Llc,
Noxell Corporation
F K A Noxzema Chemical Company, Individually And As Successor To Covergirl,
Omya Inc,
Pfizer, Inc.,
Individually And As Successor To Coty Inc.,
Presperse Corporation
F K A Presperse Inc.,
Private Label Cosmetics Inc.,
Proctor & Gamble Company
Individually And As Successor To Old Spice,
Riverbay Corporation,
R.T. Vanderbilt Company, Inc.,
Individually And As Successor To International Talc Co., International Pulp Co. And Governeur Talc Co., Inc.,
Sanofi Us Corporation,
Individually And As Successor To Yves Saint Laurent,
Sanofi Us Services, Inc.,
F K A Sanofi-Aventis U.S. Inc., Individually And As Successor To Yves Saint Laurent,
Unilever United States Inc.,
Individually And As Successor To Conopco,
Union Carbide Corporation,
Vee Pak Llc
Individually And As Successor To Cosmetic Essence,
Voyant Beauty Llc,
Individually And As Successor To Cosmetic Essence,
Vwr International Llc,
Yves Saint Laurent America Holdings Inc.,
Yves Saint Laurent America, Inc.,
for Torts - Asbestos
in the District Court of Ulster County.
Preview
FILED: NEW YORK
ULSTER COUNTY
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1 STATE OF SOUTH CAROLINA ) COURT OF COMMON PLEAS
)
2 COUNTY OF RICHLAND ) TRANSCRIPT OF RECORD
3 ------------------------------x
SARAH J. PLANT and PARKER )
4 PLANT, )
)
5 Plaintiffs, )
vs. ) Case No. 2022-CP-40-01265
6 )
AVON PRODUCTS, INC., et al., )
7 )
Defendants. )
8 ------------------------------x
9 THURSDAY, FEBRUARY 23, 2023
TRIAL VOLUME 2
10
B E F O R E:
11
The Honorable Chief Justice (ret.) Jean H. Toal,
12 Presiding Judge; and a jury.
13
14
15
16
17
18
19
20
21
22
23 Court Reporter: Bethanie Creppon (AM-2 Session)
24 Court Reporter: Bobbi Fisher, RPR (AM/PM Session)
SC Official Court Reporter III
25
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1 A P P E A R A N C E S:
2 Theile B. McVey (Kassel McVey)
Jessica Dean (Dean, Omar, Branham & Shirley, LLP)
3 Ben Braly (Dean, Omar, Branham & Shirley, LLP)
Mark Buha (Dean, Omar, Branham & Shirley, LLP)
4 Rachel A. Gross (Pro Hac Vice)(Dean, Omar, Branham &
Shirley)
5 Attorneys for the Plaintiffs
6 Chris Schwegmann
Jill Herz
7 William Wilson, III
Attorneys for Defendant Mary Kay
8
Robert E. Thackston (Lathrop GPW, LLP
9 Stephanie Flynn (Fox Rothschild LLP)
Nicolas J. Cherry (Fox Rothschild LLP)
10 Allyson Twilley (Fox Rothschild LLP)
Attorneys for Defendant Whittaker, Clark & Daniels,
11 Inc.
12 Elizabeth O'Neill (Womble Bond Dickinson LLP)
Theodore F. Roberts (Womble Bond Dickinson LLP)
13 Matthew "Todd" Carroll (Womble Bond Dickinson LLP)
Geoff Paschke (Womble Bond Dickinson LLP)
14 Attorney for Defendants IMI Fabi (USA) Inc.; IMI
Fabi, LLC; and IMI Fabi (Diana) LLC
15
James Insco (Gordon Rees Scully Mansukhani)
16 Victor Rawl (Gordon Rees Scully Mansukhani)
William H. Kleindienst (Gordon Rees Scully Mansukhani)
17 Attorney for Defendant Color Techniques
18
19
20
21
22
23
24
25
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1 THE COURT: Thank you.
2 MR. CARROLL: Yes, ma'am. Well, I'll try to be
3 brief. I do not want to delay the ultimate proceedings.
4 Your Honor, I'm Todd Carroll on behalf of IMI Fabi
5 (USA) Incorporated; IMI Fabi LLC; and IMI Fabi (Diana)
6 LLC. Three different entities.
7 Your Honor, we have pending motions to dismiss all
8 three for lack of personal jurisdiction. The
9 jurisdictional facts are as follows: There are no
10 contacts between any of my clients and the State of South
11 Carolina, and that's with the one single exception of IMI
12 Fabi LLC has shipped industrial talc to the State of South
13 Carolina for use in rubber and plastic products. It has
14 nothing to do with this case, which is about cosmetic
15 talc.
16 So, there's no -- just for purposes of the record,
17 IMI Fabi Inc., is a Delaware corporation. Principal place
18 of business is Delaware. IMI Fabi LLC is a West Virginia
19 LLC with its principal place of business in the state of
20 West Virginia. And IMI Fabi (Diana) ceased operations
21 around 2004, but it was a North Carolina LLC, with its
22 principal place of business in the state of New York. So,
23 there are no corporate contacts with the state of South
24 Carolina.
25 THE COURT: Well, let me ask you this: What kind of
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1 cosmetic -- were any of the cosmetic defendants in this
2 case entities to which IMI Fabi shipped materials?
3 MR. CARROLL: Well, Your Honor, you have actually
4 phrased the question precisely consistent with our
5 argument. We didn't ship -- my clients don't ship
6 products to anybody. All of their products are picked up
7 FOB at my client's dock.
8 THE COURT: Well, I understand how people do FOB.
9 That used to be a big thing in the old days --
10 MR. CARROLL: Yes, ma'am.
11 THE COURT: -- with the beginning days of UCC. But
12 is any IMI Fabi material used by any of these cosmetic
13 defendants? If they had to pick it up FOB at your dock,
14 so be it.
15 MR. CARROLL: Well, none of them picked it up at our
16 dock. Our products were sold to Cosmetic Specialties.
17 THE COURT: Cosmetic Specialties?
18 MR. CARROLL: Yes, ma'am. And they're not a
19 defendant in this case.
20 THE COURT: How about any of the other defendants
21 like Whittaker, Clark & Daniels?
22 MR. CARROLL: I don't believe so. I don't think
23 there's any evidence that would suggest that.
24 THE COURT: Okay.
25 MR. CARROLL: As it relates to the FOB issue, I
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1 don't want to gloss over that. There's a Court of
2 Appeals' decision from our state Court of Appeals that
3 it's the Digital Ally case, 408 S.C. 101, where this
4 notion of an FOB clause in a contact, does that impact the
5 personal ideal analysis? And our Court of Appeals says it
6 does.
7 It's not dispositive, I'll grant you that, but the
8 presence of an FOB clause can impact the personal
9 jurisdiction analysis. And here, our FOB clause says our
10 engagement with the outside world ends at our dock. We
11 are not purposefully availing ourselves of any other
12 state. We're not purposefully availing ourselves of our
13 next-door neighbor's parcel. Our purposeful availment
14 ends at the four corners of our building.
15 THE COURT: And, of course, we have just such a
16 world of law that deals with products cases and putting
17 things in the stream of commerce and the long-arm statute
18 itself, so the FOB clauses and contracts can certainly be
19 considered just like a lot of other clauses and contracts
20 that seek to limit the ambit of the relationship. Placing
21 the material in the stream of commerce is kind of -- it
22 trumps everybody.
23 MR. CARROLL: Well, I will quibble with Your Honor
24 on that just a tad, because we're not the ultimate
25 manufacturer and we're not the ones selling directly to
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1 the customer. Like in the Ford case, the U.S. Supreme
2 Court just had, in 2021 --
3 THE COURT: Well, supply liability is around for
4 people who actually fabricated anything. That's been
5 around for a long time.
6 MR. CARROLL: Yes, ma'am, I understand that, but
7 what I'm saying is that this notion of stream of commerce
8 is the -- it's -- that thread of case law is manufacturer
9 to consumer. Like in the Ford case, the whole notion of
10 what did Ford do and how is it subject to jurisdiction in
11 Minnesota and Montana, the Supreme Court looked at it and
12 said, Well, they targeted this specific market with these
13 specific products. So, Ford had gone into Montana and
14 Ford had gone into Minnesota with their ultimate product
15 to the consumer. There's nothing that Whittaker Clark's
16 made that in this instance for any of the IMI Fabi
17 entities, Your Honor.
18 THE COURT: I understand your argument.
19 MR. CARROLL: Very good. Thank you.
20 THE COURT: Ms. McVey?
21 MS. McVEY: Thank you, Your Honor. I'll be very
22 brief, but let me say at the outset, I'm relying on our
23 briefs that we filed in this case.
24 THE COURT: Yes, I understand. You're never going
25 to be caught saying you consented to anything, if you want
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1 to speed up your --
2 MS. McVEY: Okay. Everybody knows that.
3 THE COURT: I think that ship has sailed, thanks to
4 Joe Anderson.
5 MS. McVEY: Well, one would hope.
6 Your Honor, just -- you know, IMI Fabi asked that
7 this be heard the first day of trial, and we consented to
8 that without any problem, and I would go through the
9 facts. And yesterday, in front of Judge Anderson, they
10 represented that this motion had been languishing in state
11 court for over seven months, and they deserved to get out.
12 We agreed for them to pull it and then we'd hear it the
13 first day. So, I'm happy to argue that to you.
14 What IMI Fabi has done is kind of this corporate
15 game of IMI Fabi LLC, IMI Fabi (USA), IMI Fabi (Diana).
16 But where they come into this case is that Sarah Plant, as
17 you know, used COVERGIRL for a very long time. And what
18 we learned in their deposition is that IMI Fabi (USA) owns
19 IMI Fabi LLC. Okay? IMI Fabi LLC has sold cosmetic talc
20 from 2004 to the present, and they've sold industrial talc
21 since 2001. So, that overlaps Sarah Plant's usage of it.
22 They have South Carolina sales, between 2015 and
23 2021, they had revenue of 1.3 million to 1.63 million a
24 year from industrial -- now, it's industrial talc -- in
25 South Carolina. So, total revenue of sales in South
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1 Carolina over the last six years is over $11 million to
2 South Carolina. All right?
3 They also had sales prior to 2016, which we don't
4 have that information on, but what we do know is they sold
5 2,600 to 3,600 tons of industrial talc to companies in
6 South Carolina every year.
7 How do we get to this case? And how we get to this
8 case is through IMI Fabi LLC owns Fabi (Diana). So, now
9 we're coming on down. What we know is that, during this
10 time, COVERGIRL pressed powder contained talc as an
11 ingredient. Diana sold Talc 141. And between -- let's
12 see, Noxell, who was a prior defendant, who supplied to
13 COVERGIRL, primarily used Talc 141 in its COVERGIRL line.
14 Whittaker, Clark & Daniels, the previous -- entered
15 the facility, changed their name to rename 141 product
16 after the facility was sold to IMI Fabi. Diana never
17 changed the name of the product or the product range.
18 What we know is Talc 141 was shipped to Proctor & Gamble
19 between 2001 and 2005, and Noxell, i.e. IMI Fabi, as a
20 supplier to COVERGIRL products, to which she used in the
21 right time period.
22 Your Honor, we would maintain that there is both
23 general and specific jurisdiction in this case based on
24 the talc that was sold and the products that were sold
25 here, and they availed themselves in South Carolina.
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1 THE COURT: Thank you, Ms. McVey.
2 Mr. Carroll, a brief reply?
3 MR. CARROLL: Yes, ma'am.
4 Your Honor, everything Ms. McVey said about the
5 industrial talc can only be relevant to a general
6 jurisdiction analysis, and the Supreme Court has made it
7 crystal-clear that general jurisdiction only applies if
8 you are, quote, "at home in the jurisdiction." I don't
9 think there's any colorful argument that any IMI Fabi
10 entities are at home in South Carolina, given that they
11 have absolutely no corporate affiliation here, no
12 registered agent, no --
13 THE COURT: I understand that argument. They'll
14 have the secret jurisdiction argument.
15 MR. CARROLL: Well, all of the stuff about revenue
16 from industrial talc sales has absolutely nothing to do
17 with specific jurisdiction. There's no arising out of or
18 related to connection between the industrial talc and the
19 state -- and Ms. Plant's claims. So that fact --
20 THE COURT: How about the rest of the argument?
21 MR. CARROLL: The rest of the argument is --
22 THE COURT: COVERGIRL.
23 MR. CARROLL: My client didn't sell to COVERGIRL.
24 My client sold to Cosmetic Specialties, and they have an
25 FOB clause that says, "We aren't going into any other
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1 state."
2 THE COURT: I understand, but that -- the material
3 they sold to Cosmetic Specialties was the material used in
4 the private -- plaintiff alleged caused her cancer; right?
5 MR. CARROLL: I don't know, Your Honor. What I do
6 know is that my client didn't direct a thing to the state
7 of South Carolina, and that's the only issue that the
8 personal jurisdiction analysis concerns itself with, is
9 what did my client do. And my client did not do anything
10 whatsoever with cosmetic talc to the state of South
11 Carolina.
12 THE COURT: Thank you, sir.
13 MR. CARROLL: Very good. Thank you.
14 THE COURT: All right. Now, this is IMI Fabi's
15 motion for summary judgment; am I correct?
16 MS. McVEY: I think it's a motion to dismiss.
17 THE COURT: What's that?
18 MS. McVEY: A motion to dismiss.
19 THE COURT: A motion to dismiss by all three
20 companies; correct?
21 MS. McVEY: Yes.
22 THE COURT: All right. The motion to dismiss is
23 denied on the basis of the averments made and the
24 pleadings in issue. All right.
25 Now, what else have we got pretrial? I know one
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1545
1 STATE OF SOUTH CAROLINA ) COURT OF COMMON PLEAS
)
2 COUNTY OF RICHLAND ) TRANSCRIPT OF RECORD
3 -----------------------------x
SARAH J. PLANT and PARKER )
4 PLANT, )
)
5 Plaintiffs, )
vs. ) Case No. 2022-CP-40-01265
6 )
AVON PRODUCTS, INC., et al., )
7 )
Defendants. )
8 -----------------------------x
9 THURSDAY, MARCH 2, 2023
TRIAL VOLUME 7
10
11 B E F O R E:
12 The Honorable Chief Justice (ret.) Jean H. Toal,
Presiding Judge; and a jury.
13
14
15
16
17
18
19
20
21
22
23
24
Court Reporter: Bobbi Fisher, RPR
25 SC Official Court Reporter III
NEW YORK
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1546
1 A P P E A R A N C E S:
2 Theile B. McVey (Kassel McVey)
Jessica Dean (Dean, Omar, Branham & Shirley, LLP)
3 Ben Braly (Dean, Omar, Branham & Shirley, LLP)
Mark Buha (Dean, Omar, Branham & Shirley, LLP)
4 Rachel A. Gross (Pro Hac Vice)(Dean, Omar, Branham &
Shirley)
5 Attorneys for the Plaintiffs
6 Robert E. Thackston (Lathrop GPW, LLP
Stephanie Flynn (Fox Rothschild LLP)
7 Nicolas J. Cherry (Fox Rothschild LLP)
Allyson Twilley (Fox Rothschild LLP)
8 Attorneys for Defendant Whittaker, Clark & Daniels,
Inc.
9
Elizabeth O'Neill (Womble Bond Dickinson LLP)
10 Theodore F. Roberts (Womble Bond Dickinson LLP)
Matthew "Todd" Carroll (Womble Bond Dickinson LLP)
11 Geoff Paschke (Womble Bond Dickinson LLP)
Attorney for Defendants IMI Fabi (USA) Inc.; IMI
12 Fabi, LLC; and IMI Fabi (Diana) LLC
13
14
15
16
17
18
19
20
21
22
23
24
25
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MOTION FOR DIRECTED VERDICT
1559
1 IMI Fabi entities. The case wasn't presented to them like
2 that and Corrado Fabi, in his testimony, in my view, did
3 not deviate and slice and dice it in such a way that it
4 makes any difference.
5 So, I'm not going to slice it and dice it like that,
6 but she says there's a magic to the date of 2001 and 2004,
7 and --
8 MS. DEAN: Which is why we indicated that we were
9 looking at the years of 2000 to the present; that that's
10 15 years of exposure; that the exposure was weekly; that
11 the proximity was to the face --
12 THE COURT: I gotcha. So, you feel you have got
13 evidence in the record to support that theory. We're not
14 talking about whether the jury is going to buy it, but you
15 get past directed verdict because you've got that evidence
16 in the record.
17 MS. DEAN: Not only evidence but a lovely case where
18 it's uncontested.
19 THE COURT: All right. Okay. I understand your
20 argument on the directed verdict on the merits. Go back
21 to personal jurisdiction for a minute.
22 They cite McIntyre Machinery for the notion that IMI
23 Fabi and -- IMI Fabi did try to project this strongly.
24 They made this big pitch that they never purposely
25 directed any activity to South Carolina.
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MOTION FOR DIRECTED VERDICT
1560
1 This is a stream-of-commerce case; I'm going to
2 charge that to the jury. It is my understanding from the
3 evidence presented, including by Corrado Fabi himself,
4 that they checked out these mines and they sold broadly
5 all over the country through these mines, including to
6 suppliers as well as to -- directed to cosmetic customers.
7 And it was a nationwide distribution of their product to
8 cosmetics that found their way to end users. That's what
9 I understand your argument to be.
10 MS. McVEY: And, Your Honor, can I switch over for
11 personal jurisdiction purposes? And I know we'll take it
12 up in the jury charges, but we believe that my kind of
13 jurisdictional stream of commerce, whatever, is, of
14 course, an issue of law for the Court to decide.
15 And I want to cite the Court to Collett vs. Olympus
16 Medical Systems Group.
17 THE COURT: Spell that for me.
18 MS. McVEY: Sure. It's C-o-l-l-e-t-t.
19 THE COURT: D-o-l-l-e-t-t-e?
20 MS. McVEY: C as in "cat." C as in "cat."
21 THE COURT: C? Collett?
22 MS. McVEY: Yes.
23 THE COURT: Like the French woman?
24 MS. McVEY: Oui, oui.
25 Versus Olympus Medical Systems. And the citation is
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MOTION FOR DIRECTED VERDICT
1561
1 437 F.Supp. 3rd 1272, and it's a 2020 opinion.
2 And it is interpreting the Supreme Court case that
3 Mr. Carroll cited, McIntyre Machinery. And, Your Honor,
4 it's on all fours, actually.
5 Uh-oh.
6 [Technical difficulties with the microphone. Pause
7 in the proceedings.]
8 MS. McVEY: Was it me?
9 And what this case says, the plaintiffs in that case
10 presented enough facts to establish specific causation.
11 And let me just tell you briefly about the facts here.
12 The Court said, "Here, Olympus Medical admits that it
13 manufactured the colonoscope that allegedly injured
14 plaintiffs and that it sold the scope to an affiliated
15 company." Kind of like what we're doing here; right?
16 THE COURT: Right.
17 MS. McVEY: The talc goes to an affiliated company.
18 Which then sold it to the gastroenterologist who
19 committed the tort.
20 "Furthermore, Olympus Medical sought to achieve and
21 maintain a significant market share for its product," and
22 it goes on and on, kind of the same thing here.
23 Judge, we have specific sales into South Carolina
24 through an affiliate, knowing what their product was going
25 to be used for, and we believe this case is kind of
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MOTION FOR DIRECTED VERDICT
1562
1 interpreting on all fours the facts in our case.
2 THE COURT: All right. Anything else?
3 I deny the motion for summary judgment. With regard
4 to the first point, the difference between this company
5 and McIntyre Machinery is that it had a long relationship
6 with the Cosmetic, Toiletries, and Fragrance Association
7 and with countless cosmetic manufacturers and distributors
8 around the world, and it was well aware -- very
9 specifically aware that its product would go right into
10 the stream of commerce in -- for use by women all over the
11 world. It was very well aware of that.
12 In its own advertising materials or websites or
13 other things that it puts up demonstrates an awareness of
14 the international nature of distribution of cosmetic
15 products to women. It knew that women would use products
16 in this state, just like every other state in the United
17 States. It had a big market for its products. It bought
18 additional mines or sought out additional mines to service
19 this burgeoning and growing United States market.
20 So, this is an entirely different situation from
21 McIntyre, that had a distributor and was in shows in
22 several states and that was kind of about it. This is a
23 -- IMI Fabi is a very different animal from that.
24 So, on that basis, I will deny the motion to direct
25 on personal jurisdiction.
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FILED: NEW YORK ULSTER COUNTY COUNTY CLERK CLERK 09/15/2023 11/27/2023 12:41 03:38 PMPM 190069/2023 INDEX NO. EF2023-1417 162 NYSCEF DOC. NO. 159 09/15/2023 RECEIVED NYSCEF: 11/27/2023 74 1 STATE OF SOUTH CAROLINA ) COURT OF COMMON PLEAS ) 2 COUNTY OF RICHLAND ) TRANSCRIPT OF RECORD 3 ------------------------------x SARAH J. PLANT and PARKER ) 4 PLANT, ) ) 5 Plaintiffs, ) vs. ) Case No. 2022-CP-40-01265 6 ) AVON PRODUCTS, INC., et al., ) 7 ) Defendants. ) 8 ------------------------------x 9 THURSDAY, FEBRUARY 23, 2023 TRIAL VOLUME 2 10 B E F O R E: 11 The Honorable Chief Justice (ret.) Jean H. Toal, 12 Presiding Judge; and a jury. 13 14 15 16 17 18 19 20 21 22 23 Court Reporter: Bethanie Creppon (AM-2 Session) 24 Court Reporter: Bobbi Fisher, RPR (AM/PM Session) SC Official Court Reporter III 25 FILED: NEW YORK ULSTER COUNTY COUNTY CLERK CLERK 09/15/2023 11/27/2023 12:41 03:38 PMPM 190069/2023 INDEX NO. EF2023-1417 162 NYSCEF DOC. NO. 159 09/15/2023 RECEIVED NYSCEF: 11/27/2023 75 1 A P P E A R A N C E S: 2 Theile B. McVey (Kassel McVey) Jessica Dean (Dean, Omar, Branham & Shirley, LLP) 3 Ben Braly (Dean, Omar, Branham & Shirley, LLP) Mark Buha (Dean, Omar, Branham & Shirley, LLP) 4 Rachel A. Gross (Pro Hac Vice)(Dean, Omar, Branham & Shirley) 5 Attorneys for the Plaintiffs 6 Chris Schwegmann Jill Herz 7 William Wilson, III Attorneys for Defendant Mary Kay 8 Robert E. Thackston (Lathrop GPW, LLP 9 Stephanie Flynn (Fox Rothschild LLP) Nicolas J. Cherry (Fox Rothschild LLP) 10 Allyson Twilley (Fox Rothschild LLP) Attorneys for Defendant Whittaker, Clark & Daniels, 11 Inc. 12 Elizabeth O'Neill (Womble Bond Dickinson LLP) Theodore F. Roberts (Womble Bond Dickinson LLP) 13 Matthew "Todd" Carroll (Womble Bond Dickinson LLP) Geoff Paschke (Womble Bond Dickinson LLP) 14 Attorney for Defendants IMI Fabi (USA) Inc.; IMI Fabi, LLC; and IMI Fabi (Diana) LLC 15 James Insco (Gordon Rees Scully Mansukhani) 16 Victor Rawl (Gordon Rees Scully Mansukhani) William H. Kleindienst (Gordon Rees Scully Mansukhani) 17 Attorney for Defendant Color Techniques 18 19 20 21 22 23 24 25 NEW YORK FILED: ULSTER COUNTY COUNTY CLERK CLERK 09/15/2023 11/27/2023 12:41 03:38 PMPM 190069/2023 INDEX NO. EF2023-1417 162 NYSCEF DOC. NO. 159 09/15/2023 RECEIVED NYSCEF: 11/27/2023 MOTIONS/MATTERS OF LAW 103 1 THE COURT: Thank you. 2 MR. CARROLL: Yes, ma'am. Well, I'll try to be 3 brief. I do not want to delay the ultimate proceedings. 4 Your Honor, I'm Todd Carroll on behalf of IMI Fabi 5 (USA) Incorporated; IMI Fabi LLC; and IMI Fabi (Diana) 6 LLC. Three different entities. 7 Your Honor, we have pending motions to dismiss all 8 three for lack of personal jurisdiction. The 9 jurisdictional facts are as follows: There are no 10 contacts between any of my clients and the State of South 11 Carolina, and that's with the one single exception of IMI 12 Fabi LLC has shipped industrial talc to the State of South 13 Carolina for use in rubber and plastic products. It has 14 nothing to do with this case, which is about cosmetic 15 talc. 16 So, there's no -- just for purposes of the record, 17 IMI Fabi Inc., is a Delaware corporation. Principal place 18 of business is Delaware. IMI Fabi LLC is a West Virginia 19 LLC with its principal place of business in the state of 20 West Virginia. And IMI Fabi (Diana) ceased operations 21 around 2004, but it was a North Carolina LLC, with its 22 principal place of business in the state of New York. So, 23 there are no corporate contacts with the state of South 24 Carolina. 25 THE COURT: Well, let me ask you this: What kind of FILED: NEW YORK ULSTER COUNTY COUNTY CLERK CLERK 09/15/2023 11/27/2023 12:41 03:38 PMPM 190069/2023 INDEX NO. EF2023-1417 162 NYSCEF DOC. NO. 159 09/15/2023 RECEIVED NYSCEF: 11/27/2023 MOTIONS/MATTERS OF LAW 104 1 cosmetic -- were any of the cosmetic defendants in this 2 case entities to which IMI Fabi shipped materials? 3 MR. CARROLL: Well, Your Honor, you have actually 4 phrased the question precisely consistent with our 5 argument. We didn't ship -- my clients don't ship 6 products to anybody. All of their products are picked up 7 FOB at my client's dock. 8 THE COURT: Well, I understand how people do FOB. 9 That used to be a big thing in the old days -- 10 MR. CARROLL: Yes, ma'am. 11 THE COURT: -- with the beginning days of UCC. But 12 is any IMI Fabi material used by any of these cosmetic 13 defendants? If they had to pick it up FOB at your dock, 14 so be it. 15 MR. CARROLL: Well, none of them picked it up at our 16 dock. Our products were sold to Cosmetic Specialties. 17 THE COURT: Cosmetic Specialties? 18 MR. CARROLL: Yes, ma'am. And they're not a 19 defendant in this case. 20 THE COURT: How about any of the other defendants 21 like Whittaker, Clark & Daniels? 22 MR. CARROLL: I don't believe so. I don't think 23 there's any evidence that would suggest that. 24 THE COURT: Okay. 25 MR. CARROLL: As it relates to the FOB issue, I FILED: NEW YORK ULSTER COUNTY COUNTY CLERK CLERK 09/15/2023 11/27/2023 12:41 03:38 PMPM 190069/2023 INDEX NO. EF2023-1417 162 NYSCEF DOC. NO. 159 09/15/2023 RECEIVED NYSCEF: 11/27/2023 MOTIONS/MATTERS OF LAW 105 1 don't want to gloss over that. There's a Court of 2 Appeals' decision from our state Court of Appeals that 3 it's the Digital Ally case, 408 S.C. 101, where this 4 notion of an FOB clause in a contact, does that impact the 5 personal ideal analysis? And our Court of Appeals says it 6 does. 7 It's not dispositive, I'll grant you that, but the 8 presence of an FOB clause can impact the personal 9 jurisdiction analysis. And here, our FOB clause says our 10 engagement with the outside world ends at our dock. We 11 are not purposefully availing ourselves of any other 12 state. We're not purposefully availing ourselves of our 13 next-door neighbor's parcel. Our purposeful availment 14 ends at the four corners of our building. 15 THE COURT: And, of course, we have just such a 16 world of law that deals with products cases and putting 17 things in the stream of commerce and the long-arm statute 18 itself, so the FOB clauses and contracts can certainly be 19 considered just like a lot of other clauses and contracts 20 that seek to limit the ambit of the relationship. Placing 21 the material in the stream of commerce is kind of -- it 22 trumps everybody. 23 MR. CARROLL: Well, I will quibble with Your Honor 24 on that just a tad, because we're not the ultimate 25 manufacturer and we're not the ones selling directly to NEW YORK FILED: ULSTER COUNTY COUNTY CLERK CLERK 09/15/2023 11/27/2023 12:41 03:38 PMPM 190069/2023 INDEX NO. EF2023-1417 162 NYSCEF DOC. NO. 159 09/15/2023 RECEIVED NYSCEF: 11/27/2023 MOTIONS/MATTERS OF LAW 106 1 the customer. Like in the Ford case, the U.S. Supreme 2 Court just had, in 2021 -- 3 THE COURT: Well, supply liability is around for 4 people who actually fabricated anything. That's been 5 around for a long time. 6 MR. CARROLL: Yes, ma'am, I understand that, but 7 what I'm saying is that this notion of stream of commerce 8 is the -- it's -- that thread of case law is manufacturer 9 to consumer. Like in the Ford case, the whole notion of 10 what did Ford do and how is it subject to jurisdiction in 11 Minnesota and Montana, the Supreme Court looked at it and 12 said, Well, they targeted this specific market with these 13 specific products. So, Ford had gone into Montana and 14 Ford had gone into Minnesota with their ultimate product 15 to the consumer. There's nothing that Whittaker Clark's 16 made that in this instance for any of the IMI Fabi 17 entities, Your Honor. 18 THE COURT: I understand your argument. 19 MR. CARROLL: Very good. Thank you. 20 THE COURT: Ms. McVey? 21 MS. McVEY: Thank you, Your Honor. I'll be very 22 brief, but let me say at the outset, I'm relying on our 23 briefs that we filed in this case. 24 THE COURT: Yes, I understand. You're never going 25 to be caught saying you consented to anything, if you want NEW YORK FILED: ULSTER COUNTY COUNTY CLERK CLERK 09/15/2023 11/27/2023 12:41 03:38 PMPM 190069/2023 INDEX NO. EF2023-1417 162 NYSCEF DOC. NO. 159 09/15/2023 RECEIVED NYSCEF: 11/27/2023 MOTIONS/MATTERS OF LAW 107 1 to speed up your -- 2 MS. McVEY: Okay. Everybody knows that. 3 THE COURT: I think that ship has sailed, thanks to 4 Joe Anderson. 5 MS. McVEY: Well, one would hope. 6 Your Honor, just -- you know, IMI Fabi asked that 7 this be heard the first day of trial, and we consented to 8 that without any problem, and I would go through the 9 facts. And yesterday, in front of Judge Anderson, they 10 represented that this motion had been languishing in state 11 court for over seven months, and they deserved to get out. 12 We agreed for them to pull it and then we'd hear it the 13 first day. So, I'm happy to argue that to you. 14 What IMI Fabi has done is kind of this corporate 15 game of IMI Fabi LLC, IMI Fabi (USA), IMI Fabi (Diana). 16 But where they come into this case is that Sarah Plant, as 17 you know, used COVERGIRL for a very long time. And what 18 we learned in their deposition is that IMI Fabi (USA) owns 19 IMI Fabi LLC. Okay? IMI Fabi LLC has sold cosmetic talc 20 from 2004 to the present, and they've sold industrial talc 21 since 2001. So, that overlaps Sarah Plant's usage of it. 22 They have South Carolina sales, between 2015 and 23 2021, they had revenue of 1.3 million to 1.63 million a 24 year from industrial -- now, it's industrial talc -- in 25 South Carolina. So, total revenue of sales in South NEW YORK FILED: ULSTER COUNTY COUNTY CLERK CLERK 09/15/2023 11/27/2023 12:41 03:38 PMPM 190069/2023 INDEX NO. EF2023-1417 162 NYSCEF DOC. NO. 159 09/15/2023 RECEIVED NYSCEF: 11/27/2023 MOTIONS/MATTERS OF LAW 108 1 Carolina over the last six years is over $11 million to 2 South Carolina. All right? 3 They also had sales prior to 2016, which we don't 4 have that information on, but what we do know is they sold 5 2,600 to 3,600 tons of industrial talc to companies in 6 South Carolina every year. 7 How do we get to this case? And how we get to this 8 case is through IMI Fabi LLC owns Fabi (Diana). So, now 9 we're coming on down. What we know is that, during this 10 time, COVERGIRL pressed powder contained talc as an 11 ingredient. Diana sold Talc 141. And between -- let's 12 see, Noxell, who was a prior defendant, who supplied to 13 COVERGIRL, primarily used Talc 141 in its COVERGIRL line. 14 Whittaker, Clark & Daniels, the previous -- entered 15 the facility, changed their name to rename 141 product 16 after the facility was sold to IMI Fabi. Diana never 17 changed the name of the product or the product range. 18 What we know is Talc 141 was shipped to Proctor & Gamble 19 between 2001 and 2005, and Noxell, i.e. IMI Fabi, as a 20 supplier to COVERGIRL products, to which she used in the 21 right time period. 22 Your Honor, we would maintain that there is both 23 general and specific jurisdiction in this case based on 24 the talc that was sold and the products that were sold 25 here, and they availed themselves in South Carolina. FILED: NEW YORK ULSTER COUNTY COUNTY CLERK CLERK 09/15/2023 11/27/2023 12:41 03:38 PMPM 190069/2023 INDEX NO. EF2023-1417 162 NYSCEF DOC. NO. 159 09/15/2023 RECEIVED NYSCEF: 11/27/2023 MOTIONS/MATTERS OF LAW 109 1 THE COURT: Thank you, Ms. McVey. 2 Mr. Carroll, a brief reply? 3 MR. CARROLL: Yes, ma'am. 4 Your Honor, everything Ms. McVey said about the 5 industrial talc can only be relevant to a general 6 jurisdiction analysis, and the Supreme Court has made it 7 crystal-clear that general jurisdiction only applies if 8 you are, quote, "at home in the jurisdiction." I don't 9 think there's any colorful argument that any IMI Fabi 10 entities are at home in South Carolina, given that they 11 have absolutely no corporate affiliation here, no 12 registered agent, no -- 13 THE COURT: I understand that argument. They'll 14 have the secret jurisdiction argument. 15 MR. CARROLL: Well, all of the stuff about revenue 16 from industrial talc sales has absolutely nothing to do 17 with specific jurisdiction. There's no arising out of or 18 related to connection between the industrial talc and the 19 state -- and Ms. Plant's claims. So that fact -- 20 THE COURT: How about the rest of the argument? 21 MR. CARROLL: The rest of the argument is -- 22 THE COURT: COVERGIRL. 23 MR. CARROLL: My client didn't sell to COVERGIRL. 24 My client sold to Cosmetic Specialties, and they have an 25 FOB clause that says, "We aren't going into any other FILED: NEW YORK ULSTER COUNTY COUNTY CLERK CLERK 09/15/2023 11/27/2023 12:41 03:38 PMPM 190069/2023 INDEX NO. EF2023-1417 162 NYSCEF DOC. NO. 159 09/15/2023 RECEIVED NYSCEF: 11/27/2023 MOTIONS/MATTERS OF LAW 110 1 state." 2 THE COURT: I understand, but that -- the material 3 they sold to Cosmetic Specialties was the material used in 4 the private -- plaintiff alleged caused her cancer; right? 5 MR. CARROLL: I don't know, Your Honor. What I do 6 know is that my client didn't direct a thing to the state 7 of South Carolina, and that's the only issue that the 8 personal jurisdiction analysis concerns itself with, is 9 what did my client do. And my client did not do anything 10 whatsoever with cosmetic talc to the state of South 11 Carolina. 12 THE COURT: Thank you, sir. 13 MR. CARROLL: Very good. Thank you. 14 THE COURT: All right. Now, this is IMI Fabi's 15 motion for summary judgment; am I correct? 16 MS. McVEY: I think it's a motion to dismiss. 17 THE COURT: What's that? 18 MS. McVEY: A motion to dismiss. 19 THE COURT: A motion to dismiss by all three 20 companies; correct? 21 MS. McVEY: Yes. 22 THE COURT: All right. The motion to dismiss is 23 denied on the basis of the averments made and the 24 pleadings in issue. All right. 25 Now, what else have we got pretrial? I know one FILED: NEW YORK ULSTER COUNTY COUNTY CLERK CLERK 09/15/2023 11/27/2023 12:41 03:38 PMPM 190069/2023 INDEX NO. EF2023-1417 162 NYSCEF DOC. NO. 159 09/15/2023 RECEIVED NYSCEF: 11/27/2023 1545 1 STATE OF SOUTH CAROLINA ) COURT OF COMMON PLEAS ) 2 COUNTY OF RICHLAND ) TRANSCRIPT OF RECORD 3 -----------------------------x SARAH J. PLANT and PARKER ) 4 PLANT, ) ) 5 Plaintiffs, ) vs. ) Case No. 2022-CP-40-01265 6 ) AVON PRODUCTS, INC., et al., ) 7 ) Defendants. ) 8 -----------------------------x 9 THURSDAY, MARCH 2, 2023 TRIAL VOLUME 7 10 11 B E F O R E: 12 The Honorable Chief Justice (ret.) Jean H. Toal, Presiding Judge; and a jury. 13 14 15 16 17 18 19 20 21 22 23 24 Court Reporter: Bobbi Fisher, RPR 25 SC Official Court Reporter III NEW YORK FILED: ULSTER COUNTY COUNTY CLERK CLERK 09/15/2023 11/27/2023 12:41 03:38 PMPM 190069/2023 INDEX NO. EF2023-1417 162 NYSCEF DOC. NO. 159 09/15/2023 RECEIVED NYSCEF: 11/27/2023 1546 1 A P P E A R A N C E S: 2 Theile B. McVey (Kassel McVey) Jessica Dean (Dean, Omar, Branham & Shirley, LLP) 3 Ben Braly (Dean, Omar, Branham & Shirley, LLP) Mark Buha (Dean, Omar, Branham & Shirley, LLP) 4 Rachel A. Gross (Pro Hac Vice)(Dean, Omar, Branham & Shirley) 5 Attorneys for the Plaintiffs 6 Robert E. Thackston (Lathrop GPW, LLP Stephanie Flynn (Fox Rothschild LLP) 7 Nicolas J. Cherry (Fox Rothschild LLP) Allyson Twilley (Fox Rothschild LLP) 8 Attorneys for Defendant Whittaker, Clark & Daniels, Inc. 9 Elizabeth O'Neill (Womble Bond Dickinson LLP) 10 Theodore F. Roberts (Womble Bond Dickinson LLP) Matthew "Todd" Carroll (Womble Bond Dickinson LLP) 11 Geoff Paschke (Womble Bond Dickinson LLP) Attorney for Defendants IMI Fabi (USA) Inc.; IMI 12 Fabi, LLC; and IMI Fabi (Diana) LLC 13 14 15 16 17 18 19 20 21 22 23 24 25 NEW YORK FILED: ULSTER COUNTY COUNTY CLERK CLERK 09/15/2023 11/27/2023 12:41 03:38 PMPM 190069/2023 INDEX NO. EF2023-1417 162 NYSCEF DOC. NO. 159 09/15/2023 RECEIVED NYSCEF: 11/27/2023 MOTION FOR DIRECTED VERDICT 1559 1 IMI Fabi entities. The case wasn't presented to them like 2 that and Corrado Fabi, in his testimony, in my view, did 3 not deviate and slice and dice it in such a way that it 4 makes any difference. 5 So, I'm not going to slice it and dice it like that, 6 but she says there's a magic to the date of 2001 and 2004, 7 and -- 8 MS. DEAN: Which is why we indicated that we were 9 looking at the years of 2000 to the present; that that's 10 15 years of exposure; that the exposure was weekly; that 11 the proximity was to the face -- 12 THE COURT: I gotcha. So, you feel you have got 13 evidence in the record to support that theory. We're not 14 talking about whether the jury is going to buy it, but you 15 get past directed verdict because you've got that evidence 16 in the record. 17 MS. DEAN: Not only evidence but a lovely case where 18 it's uncontested. 19 THE COURT: All right. Okay. I understand your 20 argument on the directed verdict on the merits. Go back 21 to personal jurisdiction for a minute. 22 They cite McIntyre Machinery for the notion that IMI 23 Fabi and -- IMI Fabi did try to project this strongly. 24 They made this big pitch that they never purposely 25 directed any activity to South Carolina. NEW YORK FILED: ULSTER COUNTY COUNTY CLERK CLERK 09/15/2023 11/27/2023 12:41 03:38 PMPM 190069/2023 INDEX NO. EF2023-1417 162 NYSCEF DOC. NO. 159 09/15/2023 RECEIVED NYSCEF: 11/27/2023 MOTION FOR DIRECTED VERDICT 1560 1 This is a stream-of-commerce case; I'm going to 2 charge that to the jury. It is my understanding from the 3 evidence presented, including by Corrado Fabi himself, 4 that they checked out these mines and they sold broadly 5 all over the country through these mines, including to 6 suppliers as well as to -- directed to cosmetic customers. 7 And it was a nationwide distribution of their product to 8 cosmetics that found their way to end users. That's what 9 I understand your argument to be. 10 MS. McVEY: And, Your Honor, can I switch over for 11 personal jurisdiction purposes? And I know we'll take it 12 up in the jury charges, but we believe that my kind of 13 jurisdictional stream of commerce, whatever, is, of 14 course, an issue of law for the Court to decide. 15 And I want to cite the Court to Collett vs. Olympus 16 Medical Systems Group. 17 THE COURT: Spell that for me. 18 MS. McVEY: Sure. It's C-o-l-l-e-t-t. 19 THE COURT: D-o-l-l-e-t-t-e? 20 MS. McVEY: C as in "cat." C as in "cat." 21 THE COURT: C? Collett? 22 MS. McVEY: Yes. 23 THE COURT: Like the French woman? 24 MS. McVEY: Oui, oui. 25 Versus Olympus Medical Systems. And the citation is NEW YORK FILED: ULSTER COUNTY COUNTY CLERK CLERK 09/15/2023 11/27/2023 12:41 03:38 PMPM 190069/2023 INDEX NO. EF2023-1417 162 NYSCEF DOC. NO. 159 09/15/2023 RECEIVED NYSCEF: 11/27/2023 MOTION FOR DIRECTED VERDICT 1561 1 437 F.Supp. 3rd 1272, and it's a 2020 opinion. 2 And it is interpreting the Supreme Court case that 3 Mr. Carroll cited, McIntyre Machinery. And, Your Honor, 4 it's on all fours, actually. 5 Uh-oh. 6 [Technical difficulties with the microphone. Pause 7 in the proceedings.] 8 MS. McVEY: Was it me? 9 And what this case says, the plaintiffs in that case 10 presented enough facts to establish specific causation. 11 And let me just tell you briefly about the facts here. 12 The Court said, "Here, Olympus Medical admits that it 13 manufactured the colonoscope that allegedly injured 14 plaintiffs and that it sold the scope to an affiliated 15 company." Kind of like what we're doing here; right? 16 THE COURT: Right. 17 MS. McVEY: The talc goes to an affiliated company. 18 Which then sold it to the gastroenterologist who 19 committed the tort. 20 "Furthermore, Olympus Medical sought to achieve and 21 maintain a significant market share for its product," and 22 it goes on and on, kind of the same thing here. 23 Judge, we have specific sales into South Carolina 24 through an affiliate, knowing what their product was going 25 to be used for, and we believe this case is kind of FILED: NEW YORK ULSTER COUNTY COUNTY CLERK CLERK 09/15/2023 11/27/2023 12:41 03:38 PMPM 190069/2023 INDEX NO. EF2023-1417 162 NYSCEF DOC. NO. 159 09/15/2023 RECEIVED NYSCEF: 11/27/2023 MOTION FOR DIRECTED VERDICT 1562 1 interpreting on all fours the facts in our case. 2 THE COURT: All right. Anything else? 3 I deny the motion for summary judgment. With regard 4 to the first point, the difference between this company 5 and McIntyre Machinery is that it had a long relationship 6 with the Cosmetic, Toiletries, and Fragrance Association 7 and with countless cosmetic manufacturers and distributors 8 around the world, and it was well aware -- very 9 specifically aware that its product would go right into 10 the stream of commerce in -- for use by women all over the 11 world. It was very well aware of that. 12 In its own advertising materials or websites or 13 other things that it puts up demonstrates an awareness of 14 the international nature of distribution of cosmetic 15 products to women. It knew that women would use products 16 in this state, just like every other state in the United 17 States. It had a big market for its products. It bought 18 additional mines or sought out additional mines to service 19 this burgeoning and growing United States market. 20 So, this is an entirely different situation from 21 McIntyre, that had a distributor and was in shows in 22 several states and that was kind of about it. This is a 23 -- IMI Fabi is a very different animal from that. 24 So, on that basis, I will deny the motion to direct 25 on personal jurisdiction.