SAN DIEGO (Legal Newsline) - A federal judge in California dismissed a proposed class action against Johnson & Johnson and Bausch over talcum powder products, saying plaintiff lawyers failed to show the products were unsafe or that their clients were misled into buying them.
The would-be class action also ran afoul of California’s notorious Proposition 65, which requires companies to list every chemical on a long list of suspected toxins in their products. By claiming talc contained dangerous contaminants including asbestos, the court ruled, the plaintiffs triggered a requirement to notify J&J and Bausch at least 60 days before filing suit.
The lawsuit by Louisa Gutierrez and Debbie Luna sought damages for consumers who bought Johnson’s Baby Powder and Shower to Shower over a four-year period, claiming they were deceived into thinking the products were safe by advertisements describing them as “pure” and “#1 Choice for Hospitals.” Gutierrez and Luna claimed they learned otherwise after reading a December 2018 Reuters article that detailed the scientific theories of plaintiff experts that the products contain deadly amounts of asbestos that can cause mesothelioma and ovarian cancer.
Johnson & Johnson denies its products contain asbestos, although it is removing talc-based powders from the U.S. market in response to the litigation.
A federal judge dismissed the case last April with leave to amend the complaint. In a 22-page decision released Jan. 22, U.S. District Judge Todd Robinson dismissed the latest complaint with prejudice and seemed to side with J&J on the scientific argument. The plaintiffs claimed they learned from the Reuters article that talc products were unsafe but didn’t provide solid evidence to support that assertion, the judge ruled.
With fraud claims, “the plaintiff must state the `who, what, when, where, and how’ of the misconduct charged,” he wrote. But here, “plaintiffs have not carried their burden of showing that the Talcum Products are unsafe.”
On a more basic level, the plaintiffs never said which advertising materials they saw and didn’t explain how they relied on whatever it was they did see. The plaintiffs argued they saw ads that described talc products as “pure” and “safe” but didn’t identify which particular ads they were talking about. The plaintiffs cited ads touting products as the “#1 Choice for Hospitals” and the “#1 Choice for Adults” but those ads didn’t involve talc.
The products did have warnings about inhaling talc, the judge ruled, and the plaintiffs didn’t show how the claims by paid experts that talc causes cellular inflammation and “oxidative stress” are actually harmful.
The plaintiffs tried to cite an exception to the general rule requiring them to cite specific ads that the California Supreme Court made in a tobacco lawsuit. That decision allowed more general claims when people have “been exposed to numerous advertisements over a period of decades.” While the plaintiffs don’t have to claim a specific ad they relied upon, the judge in the talc case ruled, they must allege “they viewed and relied on the marketing campaign.”
In this case, the plaintiffs didn’t establish a “long-term marketing campaign” during the class period, instead citing ads that ran years earlier or which the plaintiffs didn’t claim to have seen. In the class complaint, the plaintiffs said they relied “upon these representations for the past 50 years” and “purchased the talcum products, believing they were safe.”
The plaintiffs also claimed the mere sale of talcum products in stores was a deceptive act because it misled consumers into thinking they were safe. But the cases they cited to support that claim all involved companies that failed to disclose material information, such as defects. But plaintiffs haven’t shown Baby Powder is unsafe, the judge ruled.
“This is critical,” the judge wrote. “Without sufficiently showing that the product is unsafe, Plaintiffs cannot establish anything deceptive or misleading about (J&J’s) product placement.”
The court also threw out claims against Bausch, saying the plaintiffs incorrectly lumped the company together with J&J without making specific claims.