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While Johnson & Johnson has suffered a series of devastating losses in Baby Powder lawsuits filed by women diagnosed with ovarian cancer following use of the talc-based powder, the manufacturer did recently obtain the dismissal of a class action lawsuit filed over allegedly false advertising, which claimed that the talcum powder product was “safe and pure”.
The complaint alleged Johnson & Johnson engaged in deceptive advertising for Johnson’s Baby Powder and other talc-based products as part of an effort to gain consumer confident and increase sales. However, the lawsuit pointed out that in actuality, the talcum powder products sold by the company, and co-defendants Bausch Health US, was not “pure”, since it has been found to contain multiple hazardous substances, including asbestos, lead, asilica, and arsenic.
While plaintiffs who filed the class action lawsuit over the Baby Powder marketing claims did not pursue damages for their physical injuries, the complaint (PDF) sought damages for all purchasers of the talcum powder products in the state of California, indicating that the products were not “pure”, but rather contained contaminants that can cause cellular inflammation and oxidative stress.
In an order (PDF) issued on January 22, U.S. District Judge Todd W. Robinson, of the Southern District of California, provided Johnson & Johnson one of the few wins the manufacturer has been able to secure in the litigation, granting a motion to dismiss.
“Apart from a few exceptions, Plaintiffs do not allege the specific content of the advertisement they viewed,” the order states. “Instead, they only provide their own interpretation of the advertisements.”
Judge Robinson pointed out that even when plaintiffs identified specific statements they believe to be misrepresentations, there is no evidence plaintiffs relied on those misrepresentations or even saw them, according to the order. He indicated plaintiffs failed to identify which particular advertisement they relied on, and that they failed to show which specific statement they actually saw. In addition, Judge Robinson indicated plaintiffs failed to show the products are actually unsafe, and dismissed the case with prejudice.
Talcum Powder Litigation
While Johnson & Johnson now faces one less class action claim, the manufacturer still faces more than 20,000 individual talcum powder injury lawsuits, indicating women developed ovarian cancer and other injuries after regularly applying the products around the genitals for feminine hygiene purposes. Plaintiffs claim Johnson & Johnson knew about the risks associated with asbestos and talc contained in the Baby Powder products for years, yet failed to warn adult women about the risks they may face.
Given common questions of fact and law presented in the injury claims, the federal litigation is currently centralized before Judge Freda L. Wolfson in the District of New Jersey, for coordinated discovery and pretrial proceedings.
Last year, Judge Wolfson rejected Johnson & Johnson’s attempts to avoid liability by precluding plaintiffs’ expert witnesses from testifying at trial, and a small group of representative claims are now being prepared for a series of “bellwether” trials, which are designed to help gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout individual injury claims in the federal court system
Johnson & Johnson has previously been hit with billions of dollars in verdicts in state court trials, after juries found that the company know about the link between talcum powder and cancer, yet withheld information from consumers and continued to promote the use of their products by adult women for “feminine hygiene”.
While the outcomes of these bellwether trials will not be binding on other claims in the litigation, they may have a substantial impact on potential Baby Powder settlement negotiations, if Johnson & Johnson is unable to establish that it can successfully defend the safety of talc at trial.