Talc suit tossed after plaintiffs fail to investigate their claims

A federal judge in San Diego threw out a class action against Johnson & Johnson because the plaintiffs failed to investigate their own claims and test the accused products as required by California's product labeling law.

However, U.S. District Judge Dana Sabraw in his order Tuesday granted leave to amend.

Kimberly Montagnino, spokeswoman for J&J, said Wednesday that Sabra's ruling is consistent with the fact that the lawsuit never stated a viable claim concerning the company's statements on the safety of its powder or its labeling.

"The company acted responsibly and more than 40 years of independent scientific evaluations confirm that Johnson's Baby Powder is safe," Montagnino said.

James M. Treglio, a partner at Potter Handy LLP who represented the plaintiffs, said Wednesday he would amend the complaint to sufficiently plead other viable theories. He acknowledged the plaintiffs didn't develop any malady from using J&J products.

"Our case is more so arguing the companies are selling and advertising something as being safe, while it's not," Treglio said. "We tried to make it explicit in our suit that our theory is different from Proposition 65 in its entirety," he said referring to the California law. "The fight is far from over."

Treglio sued the pharmaceutical company last year, accusing it of selling baby powder without warning consumers of cancer-causing ingredients he alleged were in talc products in violation of the state's Consumer Legal Remedies Act, False Advertising Law and the labeling law.

Gutierrez et al v. Johnson & Johnson et al., 3:19-cv-01345 (S.D. Cal., filed Jul. 18, 2019).

J&J's lawyers sought to throw out the case as the plaintiffs didn't comply with the state law's pre-suit notice requirements and do their own legwork to prove the products contained chemicals in excess of "safe harbor" labels. Under the law passed by voters as Proposition 65, businesses must warn consumers about regulated chemicals, except when the level of chemical exposure occurs at or below the safety threshold.

J&J was represented by partners Peter A. Bicks, Elyse D. Echtman, Stacy W. Harrison and managing associate Natalie Z. Nahabet of Orrick Herrington & Sutcliffe LLP.