Johnson & Johnson has been named as the defendant in a class action claiming that J&J baby powder causes ovarian cancer. According to the complaint, studies find that one of the ingredients of J&J’s baby powder, talc, also known as talcum powder, increases the risk for ovarian cancer among women. The plaintiffs in this class action claim that Johnson & Johnson does not tell its customers about the dangers associated with its talc-based product “…despite the potential catastrophic health consequences.” The complaint further alleges that, “Instead, defendants continue to expressly and impliedly represent that the product is safe and intended for women to use the Baby Powder in the very manner most likely to result in an increased risk of ovarian cancer."
The immediate suit comes after many similar suits against J&J. A woman from South Dakota with ovarian cancer was the first to bring forward a claim against J&J for its baby powder. Since then, many similar suits have been filed, including suits filed in New Jersey and Georgia. Similarly, a recent California class action suit claims that J&J violated the California Consumer Legal Remedies Act and Unfair Competition Law and includes claims for negligent misrepresentation and breach of implied warranty.
The instant lawsuit, however, was filed in Missouri by plaintiffs Denis Mikhlin and Erin Hoffmann. The Plaintiffs claim that Johnson & Johnson has known about the cancer risk for more than 30 years. In fact, the lawsuit alleges that, “In an August 12, 1982, New York Times article entitled ‘Talcum Company Calls Study on Cancer Link Inconclusive,’ defendants admitted being aware of the 1982 Cramer study that concluded women were three times more likely to contract ovarian cancer after daily use of talcum powder in the genital area.” Based on these allegations, the lawsuit claims that,“Defendants’ omissions and representations constitute deception, fraud, false pretense, false promise, misrepresentation, unfair practices and omission, concealment, and suppression of material information in connection with the sale or advertisement of any merchandise in trade or commerce in or from the state of Missouri.”
The alleged class consists of all Missouri residents within the past five years who have bought Johnson & Johnson’s baby powder. The plaintiffs are seeking class certification, restitution and punitive damages for these alleged violations of the Missouri Merchandising Practices Act, and a corrective advertising campaign.
Tip: There has been an increasing number of hybrid false advertising/product liability suits where there is no physical harm alleged. Consider an early summary judgment motion where the plaintiff has not and cannot allege actual harm beyond the loss of money simply based on an alleged failure to warn.
