Plaintiff Asks Appeals Court to Reinstate Talcum Powder Class Action Lawsuit

Published on January 29, 2018 by Sandy Liebhard

Talcum-Powder-Class-Action-Lawsuit-3rd-Cir-Opening-BriefLawyers representing California consumers have asked a federal appeals court to reverse a lower court’s decision dismissing a talcum powder class action lawsuit for lack of standing.

According to the New Jersey Law Journal, the complaint sought to represent consumers who allegedly incurred economic damages related to the purchase of Johnson & Johnson’s Baby Powder and accused the company of violating certain California consumer protection laws by marketing the product without an ovarian cancer warning.

The case was initially filed in the U.S. District Court, Eastern District of California in 2015.  However, it was ultimately transferred to the U.S. District Court, District of New Jersey, where all federal talcum powder ovarian cancer claims pending against Johnson & Johnson are currently undergoing coordinated pretrial proceedings.

The class action lawsuit was dismissed for lack of standing in July, after the Court found that the lead plaintiff had failed to prove that she was economically injured based on three different theories of damages.

The Plaintiff then filed an appeal with the U.S. Court of Appeals for the Third Circuit. In her Opening Brief dated January 5^th, she asserted, among other things, that the District Court inappropriately considered the damages theories even though her attorneys weren’t necessarily relying on them and, moreover, were pursuing injunctive relief.

Talcum Powder Ovarian Cancer Allegations

Johnson & Johnson has been named a defendant in more than 5,500 talcum powder lawsuits currently pending in courts throughout the United States. The vast majority were brought on behalf of individual women who allegedly developed ovarian cancer due to their regular and repeated use of the company’s Baby Powder and/or Shower-to-Shower products for feminine hygiene purposes.

Among other things, plaintiffs allege that Johnson & Johnson has been aware of research dating back to the 1970s that suggested women who regularly applied talc-based powders to the genital region were significantly more likely to develop ovarian cancer compared to those who did not. Plaintiffs further claim that the company made a deliberate decision not to include ovarian cancer warnings on its product labels in order to protect the revenues associated with Baby Powder and Shower-to-Shower sales.

Talcum Powder Verdicts

Since February 2015, plaintiffs in several high-profile talcum powder ovarian cancer trials have been awarded multi-million-dollar judgments ranging from $55 million to $417 million. Recently, however, a judge in California overturned the $417 million verdict because of accusations involving juror misconduct and other issues.

A $72 million verdict awarded to an out-of-state plaintiff in Missouri’s talcum powder litigation was also tossed to comply with new jurisdictional standards set by the U.S. Supreme Court’s recent ruling in Bristol-Myers Squibb v. Superior Court of California.

In November, however, a $110 million verdict awarded to another out-state-plaintiff was upheld, after the trial court concluded that jurisdiction was appropriate because Johnson & Johnson had used a Missouri-based company to label, package and distribute their talc products.