Notable Win for Baby Powder Manufacturer & Distributor, as New Jersey Federal District Court Judge Grants Motion Dismissing Claims for Lack of Standing

On July 14, 2017, a New Jersey Federal District Court Judge handed Johnson & Johnson a victory in a case involving talc and ovarian cancer, dismissing the plaintiff’s amended complaint for lack of standing and for failure to state a claim.

Initially, the plaintiff filed her complaint in California Federal District Court, alleging that Johnson & Johnson engaged in unfair business practices by manufacturing, marketing, and distributing talc-based baby powder products without informing consumers that use of baby powder by women could lead to an increased risk of developing ovarian cancer.  Johnson & Johnson moved to dismiss the action in California for lack of standing, and the California Federal District Court Judge agreed.

Plaintiff then filed an amended complaint in California Federal District Court, alleging causes of action for violations of various California consumer and business practice statutes, negligent misrepresentation, and breach of implied warranty and merchantability.  She did so both in her individual capacity and on behalf of a putative class of consumers who purchased baby powder manufactured and sold by Johnson & Johnson.  Johnson & Johnson again moved to dismiss the amended complaint.

During the pendency of Johnson & Johnson’s motion, the case was transferred to New Jersey Federal District Court as part of the Multi-District Litigation (MDL) pending in New Jersey, and earlier this month, Judge Wolfson granted Johnson & Johnson’s motion.  In doing so, the judge found that the plaintiff failed yet again to allege a particularized, distinct, and palpable injury and, thus could not meet the federal standing requirements for pursuit of a claim.  The judge also noted that the plaintiff failed to demonstrate the statutory standing requirements under the various California consumer and business practice statutes on which she based her claims because she failed to plead that she sustained an actual injury.

Overall, while this is only another dismissal without prejudice, we believe that this was nevertheless a strong win for the J&J defendants, which have been facing a volume of talc and ovarian cancer claims lately.  Hopefully, this decision, and the court’s explicit acknowledgment that there are statutory and procedural limitations to pursuit of claims against manufacturers  and distributors of talc-based products, will have a positive influence over other federal and state court judges presiding over such claims.

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