By Emily Cox

The Eleventh Circuit revived a woman’s claims Tuesday that a defective pelvic mesh sling caused egregious injuries, ruling that her injury report did not toll the statute of limitations as she was not aware of the mesh’s significant design defects.

In its opinion, the panel determined that Patricia Perryman’s claims could go before a jury despite filing her lawsuit more than seven years after her Mentor Worldwide LLC ObTape transobturator vaginal mesh sling removal. The panel determined that it was questionable when she noticed her injuries as the symptoms that precipitated the removal were in-line with the side effects that could happen if the product worked as intended.

“Plaintiff never suspected that ObTape was defective or that a specific defect in her ObTape implant had caused her injuries until she saw a commercial in 2013 that reported the existence of vaginal sling defects,” wrote Circuit Court Judge Julie Carnes for the panel.

Perryman’s lawsuit is part of a Mentor MDL over the defective vaginal mesh sling implant. The plaintiffs allege that Mentor did not properly test the device before introducing it into the stream of commerce in 2003. Patients claim the defective device caused erosion of internal bodily tissues, causing complications that included serious infections and pain that necessitated further invasive procedures.

Pelvic Mesh Sling Allegations

The opinion indicates that Florida resident Perryman first received the ObTape mesh sling in May 2005. According to her allegations, her physician warned her that the surgery carried risks of pain, infection, and tenderness, and that her body could outright reject the implant.

Following the surgery, she reported pain, infection, and mesh protrusion. Consequently, she underwent surgery to remove the mesh sling in February 2006. She filed her claim in September 2013, saying she realized her injuries were not merely a side effect of the mesh or the procedure after seeing a television commercial regarding ObTape’s harmful defects.

Mento moved for summary judgement, saying Florida’s four-year statute of limitations had tolled when she had the implant removed in 2006. The district court agreed with the medical device company.

However, the Eleventh Circuit disagreed, ruling that it was a question for the jury to decide when she first reasonably became aware of the mesh implant’s defects.

The panel cited a 2017 Eleventh Circuit opinion on one of the many defective vaginal mesh lawsuits against Boston Scientific Corp., saying that, under Florida case law, the time limit is not tolled until the plaintiff has notice of “an injury distinct in some way from conditions naturally to be expected from the plaintiff’s condition.”

In this case, Perryman’s symptoms were not out-of-line from what her physicians told her could happen after surgery. And, by her account, she blamed the symptoms on an infection or allergic reaction to the implant at the time.

“In other words, such symptoms could arise from a nondefective mesh that had been implanted through surgery that was properly performed,” Judge Carnes said.

By Emily Cox

New Jersey’s Atlantic County Superior Court’s multicounty litigation (MCL) over gruesome and debilitating injuries from Johnson & Johnson and its Ethicon unit’s patently defective hernia mesh has announced that the Physiomesh MCL is getting underway, setting its first case management conference for October.

The Superior Court issued the case management order (CMO) August 20, indicating that the Court will conduct its first telephone case management conference October 18 at 1:30pm. The parties will address specific matters directly affecting the Physiomesh MCL. These include discovery status and the scheduling of future in-person management conferences.

Physiomesh MCL Background

Ethicon’s Physiomesh Flexible Composite Mesh received FDA clearance through the regulatory agency’s 501(k) approval program for use in hernia repair surgery. This fast-track clearance program allows medical device approval on the basis of the manufacturers’ assertion that the device is “substantially equivalent” to a device already on the market without the intrinsic benefits of human clinical trials.

Physiomesh features a unique multilayer design that uses five distinct layers. J&J and Ethicon marketed this design as preventing and minimizing adhesions and inflammation while facilitating incorporation of the mesh into the body. However, plaintiffs in the Physiomesh MCL assert that the design actually prevents incorporation and significantly increases serious and painful complication risks that often necessitate hernia revision surgery to address.

As adverse event reports over significant Physiomesh injuries began skyrocketing, rather than issue a proper recall to ensure patient safety, J&J and Ethicon quietly removed the defective mesh from world market like thieves in the night to save their own skin while continuing to keep patients in the dark about the implants’ serious risks.

The New Jersey Supreme Court consolidated the state’s Physiomesh lawsuits in Atlantic County earlier this month in response to a plaintiffs’ petition demonstrating that the cases shared many similar questions of fact and law, as well as defendants and witnesses. The plaintiffs also strived to include hernia mesh lawsuits involving Ethicon’s Proceed Ventral Patch, Prolene 3D, Proceed Surgical Mesh, and the Prolene Hernia System in the Physiomesh MCL. However, the Superior Court decided to limit the proceeding solely to Physiomesh claims.

By Emily Cox

After numerous hernia repair surgeries with Bard’s Ventrio and Ventralex meshes, a Florida man has stepped forward to take the manufacturers to task for knowingly concealing serious design defects to boost profits, resulting in permanently debilitating injuries from the popular hernia patch products.

Richard Potter filed the complaint August 24 in the District of New Jersey, naming C.R. Bard and its Davol subsidiary as defendants.

In December 2009, Potter first received a Ventrio hernia patch during hernia repair surgery. Eventually, significant chronic pain led to another surgery in August 2017 to address problems with the mesh and a recurrent hernia in the location of the Ventrio hernia patch.

This time Potter received a Ventralex ST hernia patch that was 2.5 inches in diameter. However, even worse complications were not far behind, forcing Potter to undergo yet another surgery in February 2018 due to recurring hernia. Surgeons had to remove the defective mesh that had become entangled with his insides and perform extensive lysis of intra-abdominal adhesions between the bowel and the mesh.

“He was taken to the operating room and unfortunately found to have a conglomeration of mesh and adhesions and bowel wall mangled together under the incision,” he surgeon noted. “The procedure was very difficult to do. It was basically separating bowel from mesh without causing major injuries.”

Hernia Patch Products Caused Irreparable Harm

Despite the intensive surgical intervention, Potter still experiences debilitating complications and chronic pain. Consequently, he will likely require additional surgeries to repair the extensive damage from the two hernia patch products.

According to Potter’s lawsuit, Bard Ventrio and Ventralex hernia patch products cause infection, foreign body response, mesh rejection, poor wound healing, and inflammation among other devastating complications. Although the manufacturers were fully aware of the potential risks from the products’ solid, flat, relatively smooth and continuous surfaces that inherently inhibit the body’s ability to clear toxins, they continued to sell and aggressively market the devices in a desperate push for ever higher profits.

Potter joins a growing number of individuals pursuing similar hernia patch lawsuits against Bard and other manufacturers that used non-medical grade polypropylene mesh to create hernia patch implants in recent years, alleging that they never warned the public or the medical community about the substantial risk factors.

Due to the staggering similarities in the lawsuits pending against Bard and Davol in the federal court system, the Judicial Panel on Multidistrict Litigation (JPML) centralized all federal Bard lawsuits earlier this month before District Judge Edmund A. Sargus in the Southern District of Ohio to expedite pretrial proceedings.

The JPML has established similar proceedings for Ethicon hernia mesh lawsuit and Atrium C-Qur lawsuits.  Currently, there are 1,500 Ethicon Physiomesh lawsuits and more than 700 Atrium C-Qur mesh lawsuits pending in their own individual multidistrict litigations (MDLs). The Ethicon federal lawsuits are currently pending in the Northern District of Georgia, while Atrium cases are proceeding in the District of New Hampshire.

By Emily Cox

Dow Agrosciences urged the Ninth Circuit on Monday to toss a lawsuit from environmental groups accusing the EPA of improperly approving the company’s weed killer Enlist Duo.

The company presented several reasons why the groups challenging the EPA’s 2017 approval of the herbicide can’t pursue their case. These include the fact that the groups failed to file a petition for review within 60 days of the federal agency’s registration order. According to Dow, the EPA entered this order on January 12, 2017. The environmental groups filed petitions 68 days later.

However, the groups  claim that EPA regulations dictate that “unless the administrator otherwise explicitly provides in a particular order, the time and date of entry of an order … shall be … on the date that is two weeks after it is signed.”

This would mean that the order did not become official until January 26, 2017.

Dow countered that ““the problem with that argument … is that the notice of registration — the legally operative order here, akin to a license — did ‘explicitly provide’ a different ‘date of entry’ — Jan. 12, 2017. The date of issuance is the effective date of the registration and entitled Dow to begin distributing or selling Enlist Duo as of that date.”

The green group’s lawsuit indicates that the FDA failed to follow laws governing plant and animal protections, as well as pollution. According to the lawsuit, Enlist Duo’s ingredients, glyphosate and 2, 4-D, are highly toxic. Furthermore, Dow specifically genetically engineered corn, soybean, and cotton plants to survive direct exposure to the dangerous chemical compound.

The EPA has approved the herbicide for use in 34 states so far.

Dow Argues for Enlist Duo Lawsuit Dismissal

Dow also asserts that the groups’ lawsuit cannot continue as the groups have not provided proof that Enlist Duo’s registration “threatens them with any imminent injury that can be redressed in this proceeding.”

The Natural Resources Defense Council claims that they live in Enlist Duo-approved areas “and risk exposure during their daily activities.”

“But the declarations show that any such ‘risk’ is entirely attenuated and speculative,” Dow wrote. “No declarant identifies any past, present, or imminent future exposure to Enlist Duo … These declarations do not come close to establishing an injury-in-fact from exposure to Enlist Duo.”

The company also dismissed the environmental groups’ assertions that the EPA ignored evidence that Enlist Duo is harmful to monarch butterflies by destroying their milkweed habitat. Dow argued that the EPA “expressly considered” evidence about Enlist Duo’s 2, 4-D choline ingredient’s impact on milkweed and other plants.

“In a nutshell, EPA concluded that the choline in Enlist Duo’s 2,4-D ingredient, combined with the stringent use restrictions on the Enlist Duo label, would prevent any unreasonable adverse effect on non-target terrestrial plants (including milkweed outside a treated field),” Dow said.

The company further said that three of the six petitioners – National Family Farm Coalition, Family Farm Defenders, and Beyond Pesticide – are not residents of the Ninth Circuit. Consequently, Dow says they cannot bring the EPA challenge to that court.

Dow Lawsuit Background

In January 2017, the EPA reapproved Enlist Duo after analyzing the effects of combining two of the ingredients in the weed killer’s formula. According to the EPA, after granting registration in 2014, the agency discovered that Dow had made claims that it had not shared with the EPA that blending 2,4-D and glyphosate intensifies their effects. After a review of the product on genetically engineered corn and soy plants, the agency found that the ingredients do not have a synergistic effect.

The petitioners say that the EPA is in violation of its duties under the Federal Insecticide, Fungicide and Rodenticide Act in issuing the conditional registration and further violated the Endangered Species Act by not consulting with the Fish and Wildlife Service or the National Marine Fisheries Service to ensure that the chemical’s registration would not harm any applicable species or destroy or adversely modify any of critical habitats.

By Emily Cox

While many people chose e-cigarettes as a healthier alternative to smoking tobacco, a new study indicates that vaping could double heart attack risks.

This past week the American Journal of Preventative Medicine published a study by George Washing University researchers who warn that vaping and combustible cigarettes both raise a person’s risk of suffering myocardial infarction. Using the two together increases risks five-fold.

Researchers examined data from 2014 and 2016 National Health Interview Surveys. These included more than 69,000 people older than 18 years old. They analyzed cross-sectional associations between vaping and myocardial infarction, or heart attack, risks, as well as between cigarette smoking and heart attack risks.

Daily vaping carried double the heart attack risks compared to people who never used e-cigarettes. Traditional smokers had triple the heart attack risks.

Approximately two-thirds of e-cigarette users also used traditional tobacco products. Among those who used both e-cigarettes and tobacco cigarettes, the heart attack risk was five times the rate of nonsmokers.

Vaping Studies Continue to Indicate Elevated Risks

Most consumers assume that e-cigarettes are safer than traditional tobacco products. However, this is not the first study to connect vaping with heart problems. A 2017 UCLA study also concluded that vaping increased heart disease risks.

According to the researchers’ findings, the heart attack risk also increased among e-cigarette users if they had a history of hypertension, high cholesterol, or diabetes. The risk increased with age as well, going up for every 10 years of age. However, women had the lowest odds overall.

The findings suggest that former e-cigarette users no longer had increased heart attack risks. But, former tobacco cigarette users did not enjoy the same relief. Former tobacco smokers still had increased heart attack risks, especially if they were using e-cigarettes.

Almost 60 percent of smokers use vaping to quit tobacco cigarettes. However, even after quitting tobacco cigarettes, their heart attack risks remain high.

The study’s lead author warned that switching from traditional cigarettes to e-cigarettes does not reduce heart attack risks. Furthermore, being a former smoker actually compounds a person’s risks even when using e-cigarettes.

Consequently, researchers determined that the only way to effectively reduce health risks is to quit all forms of nicotine.

By Emily Cox

Two Virgin Island juries slammed RJ Reynolds on Friday with simultaneous verdicts totaling $113.3 million in two consolidated tobacco trials alleging Newport cigarettes’ marketing caused addiction and death from smoking-related illness.

The legal nonprofit Public Health Advocacy Institute (PHAI) indicates that two St. Thomas juries found that RJ Reynolds, as Lorillard Tobacco’s successor-by-merger, was accountable for the death of Newport smokers Patrice Brown and Lucien England. Thanks for Newport’s aggressive marketing campaigns that blatantly targeted younger consumers, both plaintiffs began smoking as minors. Consequently, they became addicted and ultimately succumbed to smoking-related illnesses. According to the nonprofit, Brown died from lung cancer, while England passed away due to bladder cancer.

The jury awarded England’s estate $30 million in punitive damages Friday, after awarding $1 million in compensatory damages on August 20. The other jury returned with $12.3 million punitive damages verdict August 23 for Brown’s estate on top of an August 21 award of $70 million in compensatory damages.

According to PHAI president and Northeastern University law professor Richard Daynard, the organization was “delighted” the two juries found that the Newport cigarette companies “sold an unreasonably and unnecessarily dangerous product, marketed it by use of fraud, fraudulent concealment, and conspiring with the other major cigarette producers, and acted in callous disregard of the rights and safety of smokers.”

Tobacco Trials Consolidation

Co-counsel for Brown and England with PHAI attorneys told Law360 on Friday that the consolidation of the cases for trial was the right decision.

“For us it’s pretty easy: It’s the same fraud, the same conduct, they both died, they were smoking the same brand at the same time,” he said. “If you look at it from tobacco’s side, none of their clients were individuals.”

The lawyer continued that the trial proceeding was empaneled by a pair of six-person juries, with three alternatives apiece. They shared a jury box for most of the the cases’ testimony. However, one jury or the other would leave when a specific witness, such as a medical doctor, was testifying about issues relating to only one of the plaintiffs.

PHAI attorneys concurred, saying the consolidation of the tobacco trials made sense since the same reprehensible conduct by tobacco companies was at the heart of both cases, adding that they hope it “becomes a model for trials across the United States.”

Tobacco Trials Cases

England and Brown filed their claims in November and December 2010, respectively. In 1960, England encountered a Lorillard marketing campaign while visiting New York with his mother that involved leaving free packs of Newport cigarettes on the doorknobs of public housing projects. Consequently, the 10-year-old England would come home from school in the Bronx and take the free cigarettes before his mother got home from work, fueling an addiction that would last until 2005.

Also, in 1960, Virgin Islands native Brown was 16 years old and attending a Florida boarding school. She started smoking Newports due to brand’s “beautiful Caribbean advertisements.”

Both plaintiffs died while the litigation was ongoing with their children taking up each of their claims – Christian Brown for Patrice Brown and Jevon Gerald for Lucien England. Reynolds became a defendant in the cases following its 2015 merger with Lorillard.

In July 2017, Judge Michael Dunston granted the plaintiffs’ motion for the consolidation of the tobacco trials.

By Emily Cox

A Missouri state court judge affirmed the recent $4.69 billion baby powder verdict against Johnson & Johnson, indicating that the women’s award this past month over developing ovarian cancer from asbestos contamination in the company’s prized Baby Powder and other talcum powder products will stand.

There is no doubt that J&J will appeal the verdict to a higher court. However, the trial judge’s decision to uphold the baby powder verdict for 22 plaintiffs is yet another indication of the strength of evidence against the healthcare giant and the crippling liability that the company could face as the litigation continues. Currently, J&J is facing off against a woman in Pasadena, California in the latest trial over asbestos contamination, alleging that J&J and its talc supplier, Imerys Talc America Inc., bear the responsibility for her mesothelioma, a terminal cancer of the lungs’ lining caused by asbestos exposure.

Baby Powder Verdict Litigation

Currently, there are almost 11,000 J&J Baby Powder and Shower to Shower lawsuits pending against J&J across the country. The lawsuits all have strikingly similar allegations that the company deliberately concealed cancer risks to protect its wholesome corporate identity at the cost of human lives. Many of these are women who developed ovarian cancer from using talcum powder products around their genitals. However, in a new line of attack, many plaintiffs who developed mesothelioma after asbestos exposure from J&J’s talcum powder are beginning to come forward to take the massive corporation to task for putting consumers in harm’s way.

Several prior Missouri juries have already hit J&J with massive multimillion dollar verdicts. However, this most recent Baby Powder verdict was by far the largest to date with $550 million in compensatory damages for the 22 women and another $4.14 billion in punitive damages to punish the company for maliciously endangering lives for profit.

Supreme Court Jurisdiction Ruling’s Impact on Talcum Powder Litigation

The baby powder verdict stems from the first talcum powder case to go to trial in Missouri since a landmark Supreme Court decision in 2017 that limited the jurisdictional reach of state courts to preside over nonresidents’ product liability injury claims.

The June 2017 Supreme Court decision resulted in an immediate mistrial in another Missouri state court trial over talcum powder causing ovarian cancer. J&J quickly removed thousands of cases in the Missouri state court system to the federal court system. The Judicial Panel on Multidistrict Litigation (JMPL) has centralized these federal claims in a multidistrict litigation (MDL) before District Judge Freda L. Wolfon in the District of New Jersey.

In late November 2017, a Missouri judge affirmed a $110 million baby powder verdict against J&J in one of the earlier trials. The judge determined that the Supreme Court jurisdiction ruling does not prevent the state court jury from awarding damages for failing to warn a nonresident about ovarian cancer risks as there were adequate business connections between defendants and Missouri.

Experts indicate that more high-dollar rewards in early trial dates suggest troubling signs for J&J as the talcum powder litigation continues, showing that juries are not buying what J&J is selling in these cases.

By Emily Cox

An electron microscopist told a California jury Friday in the latest trial over Johnson & Johnson’s talcum powder’s connection to cancer and mesothelioma that the plaintiff’s J&J Baby Powder bottle contained millions of asbestos fibers.

During the fifth day of the Pasadena, California trial, plaintiff Carolyn Weirick’s legal team called materials science and electron microscopy expert William Longo to the stand. Longo told the jury that he had analyzed a sample of talc from a J&J Baby Powder bottle that Weirick had used and found asbestos fibers.

Prior to this revelation, Longo had detailed the process of transmission electron microscopy and how scientists use it to identify microscopic mineral particles. He also described the specific scientific and regulatory his laboratory employs to identify asbestos particles.

According to Longo, after investigating the chemical and chrystalline structure to identify an asbestos mineral, his laboratory will count any particle that is at least half a micrometer in length and five times longer than it is wide with parallel sides as asbestos.

J&J has contended that asbestos only comes from the asbestiform version of particular minerals and that these same minerals’ fibers, in their non-asbestiform versions, are harmless. However, Longo testified that the standards that the Environmental Protection Agency, Occupational Safety and Health Administration, and other regulatory authorities propagate don’t make this distinction.

“For the methods we’re using, this is an asbestos fiber, you call it asbestos, it does not get into the argument of, is it asbestiform or not asbestiform, it’s asbestos,” he said.

Baby Powder Bottle Contamination Cross-Examination

J&J’s legal team asked Longo during cross-examination about his assertion that dozens of J&J’s internal documents revealed the company had found asbestos in its products. However, J&J’s lawyer argued that many of these documents don’t actually ascertain they found asbestos or describe its mines’ testing results regarding talc J&J was only considering using or about talc the company was utilizing for industrial purposes.

“How many documents that you use to say there was asbestos found actually use the word ‘asbestos’?” the lawyer asked.

Regarding the talc sources the company was testing, he asked, “They were not industrial talc, they were not exploratory talc?”

I can’t give you an actual number because I haven’t added them up,” Longo responded. “The ones that say definitely ‘This is asbestos,’ is maybe a dozen.”

Baby Powder Bottle Contamination Lawsuit

Weirick filed her lawsuit in April 2017. She alleges that J&J and its talc supplier, Imerys Talc America Inc., bear the responsibility for her mesothelioma, a terminal cancer of the lungs’ lining caused by asbestos exposure. During his opening statement, her lawyer said that Weirick’s fatal condition was caused by near-daily use of J&J’s Baby Powder and Shower to Shower talcum product lines for four decades.

Longo has frequented the witness stand as an expert throughout the recent run of trials over allegations that J&J’s talcum powder contains asbestos. This represents a new battlefront in the ongoing legal fight involving thousands of lawsuits over talcum powder causing ovarian cancer when used on a woman’s genital area.

Longo also testified in the trial of Stephen Lanzo III and his wife. A New Jersey jury awarded the couple $117 million on claims that asbestos in J&J’s talc products caused mesothelioma. He further testified for California plaintiffs over the alleged J&J talcum powder-asbestos contamination in a trial that ended in a win for the company and Imerys.

By Emily Cox

A Missouri appeals court ordered a new trial Tuesday in a pelvic mesh appeal over a lawsuit alleging that C.R. Bard concealed dangerous defects to bolster sales growth at the cost of patients’ health, ruling the judge who oversaw Bard’s triumph in the initial trial wrongly excluded essential testimony regarding the medical device company’s prior criminal convictions.

In the unanimous decision Tuesday, the three-judge Missouri Court of Appeals panel in Kansas City found the judge should have allowed the plaintiff’s legal team to question Bard executive John Weiland about the company pleading guilty to withholding information from the FDA about defective angioplasty catheters in 1994.

Mesh Appeal Original Trial

In December 2015, Eva Sherrer became the first plaintiff to take on two medical device companies at once over horrifying injuries from pelvic mesh implants. During the trial, her lawyer indicated that the mesh implanted in her pelvic region became scar-plated, causing it contract, shrink, and become rigid, resulting in painful and debilitating injuries.

“That’s not supposed to happen,” he said. “Nobody disagrees with that. They never brought an expert witness in here, neither Bard nor Boston, to say, ‘Oh, this is normal. It won’t hurt a lady,’ … They all admitted that that is a dangerous condition, and that is what came out of Ms. Sherrer’s pelvis.”

Sherrer’s case and mesh appeal centered on Boston Scientific’s Solyx device and Bard’s Align device. According to Sherrer, the devices caused significant issues, including constant pain, difficulty walking, and a “nonfunctional vagina.” However, Bard and Boston Scientific argued that other issues, including doctor error, past surgeries, and medical problems caused Sherrer’s substantial issues.

Mesh Appeal Alleges that Polypropylene Mesh Wasn’t Medical Grade

During the trial, her lawyers told the court that the Marlex-brand mesh in both devices wasn’t even medical grade and not intended for permanent implantation. Boston Scientific’s use of the plastic for vaginal mesh implants prompted the mesh supplier to sever its contract with the company for use with medical devices. However, Boston Scientific struck a deal with the supplier to buy 10 years’ worth of the Marlex mesh at once, releasing the supplier from liability.

During opening arguments, Sherrer’s attorney told jurors that medical device companies, in a maniacal cash grab, used mesh for abdominal applications in the vagina without any prior testing, completely disregarding the fact that the tissue areas are massively different. Furthermore, since the Marlex mesh was never intended for medical use, it destabilized and degraded inside her body.

“This is polypropelene that is supposed to be used for carpet backing. It’s supposed to be used for ropes and cords,” Cartmell said. “It’s not medical-grade polypropelene that they decided to use.”

Bard also set-up intermediary companies to buy Marlex resin directly from the manufacturer, Chevron Phillips Chemical, while actively concealing that it intended to use the material in medical device applications.

Sherrer received the Solyx implant in October 2010. In January 2011, surgeons partially removed the Solyx mesh and implanted an Align device. As complications continued to escalate, doctors removed both devices in April 2014. She underwent additional surgery to address her debilitating problems in August 2014.

Now, Sherrer will head to appeals court against Bard to try and make the company take accountability for horrifically injuring countless women in its indefatigable pursuit of ever higher profits.

By Emily Cox

A California federal judge denied a request Thursday to remand a lawsuit, claiming Johnson & Johnson is violating state warning label and false advertising laws by selling asbestos-laden talcum powder products without including a baby powder warning label back to state court, ruling there is “no doubt” the case belongs in federal court.

At the beginning of the downtown Los Angeles hearing, District Judge George H. Wu issued a four-page tentative ruling to deny the remand motion from the seven plaintiffs, who opened a new battlefront in the ongoing legal fight over J&J’s talc by presenting claims that the healthcare giant’s product contamination and lack of baby powder warning labels violate California’s False Advertising Law, Unfair Competition Law, and Proposition 65. Prop 65 explicitly requires all business to provide cancer warnings if their services or products could expose consumers to carcinogens.

Judge Wu flatly rejected the women’s “somewhat surprising” assertion that they do not have federal Article III standing for their allegations as they are not bringing claims over any injuries to themselves but to protect the public in general.

“Notwithstanding the relative oddity of plaintiffs’ principal contention, defendants point out a problem with plaintiffs’ attempted maneuver: plaintiffs have actually pled that they did suffer an injury-in-fact (at least with respect to certain of their claims),” Judge Wu wrote.

Baby Powder Warning Label Remand Hearing

During the hearing, the plaintiffs’ attorney asked Judge Wu to reconsider his tentative ruling, saying that the party of interest in the lawsuit is the state of California and not the individual plaintiffs, since they are seeking an injunction for all Californians and not just individuals.

Judge Wu conceded that he understood the plaintiffs’ line of reasoning. However, he found that it was contrary to the Ninth Circuit and U.S. Supreme Court’s precedent for these matters.

“You’re making an argument that is, as it’s sometimes said, above my pay level,” Judge Wu said. “I don’t think this is a subject where I think district judges should be pontificating.”

Consequently, Judge Wu declared he was making the tentative ruling his final ruling in denying the remand motion.

Margaret Reed, Brenda Versic, Becky Canzoneri, Jeanette Jones, Hermelinda Luna, and Ethel Herrera, as well as Alexandra Hanks behalf of the estate of Tania D. Hanks, filed the lawsuit against J&J and its Johnson & Johnson Consumer Inc. unit in Los Angeles Superior Court in March.

They claim that J&J’s Baby Powder and Shower to Shower, a scented talcum powder, products contain asbestos, which is a known carcinogen. Consequently, they are in clear violation of Prop 65’s warning label requirements and deceived customers who they promised the talc was a pure and safe product in their advertising. The lawsuit is looking for injunctive relief, a baby powder warning label, and statutory penalties of $2,500 per day for each J&J talc product sold without a warning label.

Baby Powder Warning Label and Prop 65

The nonprofit Council for Education and Research on Toxics thrust California’s Prop 65 into the spotlight when it sued Starbucks and dozens of other coffee retailers and roasters, claiming they were in violation of the Prop 65 provisions by not warning consumers of acrylamide, a carcinogen that is present in low levels in coffee.

A Los Angeles Superior Court judge ruled that the coffee companies were in violation of Prop 65. However, the court has not required them to apply warning labels or assessed statutory penalties yet, because the companies have asked the court to wait while a state environmental health agency considers a rule that would make the warnings unnecessary.

In May, J&J removed the baby powder warning label case to federal court, stating in its motion for removal that the suit belongs there because the plaintiffs are California residents, while J&J has its headquarters in New Jersey. Furthermore, the company argued that the amount in controversy well exceeds the $75,000 minimum threshold, as the plaintiffs are seeking “hundreds of millions of dollars” in disgorgement, as well as statutory penalties.

The women’s lawsuit represents a new tactic in the barrage of lawsuits, accusing J&J of selling talcum powder with asbestos in it. These suits themselves were a new attack front on the talcum powder products after thousands of women and their families have filed lawsuits during the past several years, claiming the talcum powder itself causes ovarian cancer when used around a woman’s genital region.