J&J Favored Talc Verdict Reversed By Kentucky Court

Introduction

The Kentucky Court of Appeals reversed a verdict that favored Johnson & Johnson (J&J) over a lawsuit claiming its baby powder for a deceased woman's cancer.

According to the opinion dated January 29, the appellate court reversed the verdict after finding that the trial court’s decision over allowing the defendant to elicit “irrelevant personal and family use testimony from its witness” prejudiced the plaintiff. The court also remanded the case for a new trial against the defendant.

The lawsuit was filed on behalf of a woman who was in her early 70s when she was diagnosed with mesothelioma in April 2016. She died in December 2016, and her family claimed that her disease was caused by asbestos-containing cosmetic talcum powder manufactured by J&J and Colgate-Palmolive.

In this trial, the defendant offered a witness, a toxicologist, who worked for various J&J units from the 1970s to the 1990s. The witness told the jurors about his personal use of the product to rebut the claims made by the family.

Earlier, U.S. District Judge Todd W. Robinson of the Southern District of California favored Johnson & Johnson (J&J) Consumer Inc. and Bausch Health US LLC over a lawsuit that claimed the defendants for misleading representations in advertising and marketing of the talcum products.

The lawsuit was brought by two plaintiffs seeking damages on behalf of all purchasers of the talcum powder products in the state of California. The plaintiffs contended that the products contained contaminants like asbestos, lead, silica, and arsenic that can cause cellular inflammation and oxidative stress.

J&J and the co-defendant were alleged of engaging in deceptive advertising practices for its baby powder and other talc-based products as an effort to obtain consumers' trust and increase sales.

The defendants filed a motion to dismiss, arguing that the plaintiffs failed to show that the alleged misrepresentations are in fact misleading and they have not satisfied Rule 9(b). Under Rule 9(b), the plaintiff must state with “particularity the circumstances constituting the fraud or mistake.”

According to the recent order, Judge Robinson stated that the plaintiffs failed to identify which particular advertisement they relied on and that they failed to show which specific statement they actually saw. Additionally, the judge said that the plaintiffs failed to show the products are unsafe and dismissed the case with prejudice.

Earlier this month, the Baby Powder giant argued over the Plaintiffs’ Steering Committee's (PSC) motion to add a spoliation of evidence claim to the First Amended Master Long Form Complaint, stating that it's untimely for the plaintiffs to add the claim four years after the first Master Complaint was filed.

J&J is currently facing more than 20,000 Baby Powder and Shower-to-Shower lawsuits and has been paying millions to resolve them.

Last year the company stopped selling its talcum-based products in the U.S. and Canada, stating a decline in consumer demand and misinformation about the safety of the products.

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