U.S. District Judge Staci Yandle has sent a claim that talcum powder caused ovarian cancer back to Madison County circuit court where it began.
On Aug. 31, Yandle granted a motion to remand a suit that Illinois resident Candace Lewis filed against manufacturer Johnson & Johnson and retailer Walgreens.
Yandle rejected an argument from Johnson & Johnson that Lewis asserted no viable claim against Walgreens but fraudulently named it as a defendant in order to defeat federal jurisdiction.
“Under Illinois law, all entities in the chain of distribution for an allegedly defective product are subject to state liability in tort,” Yandle wrote.
Lawyers from the Onder Shelton firm in Webster Groves, Mo., sued Johnson & Johnson and Walgreens on Lewis’s behalf in March, in Madison County.
They wrote that Johnson & Johnson “compelled women through advertisements to dust themselves with this product to mask odors.”
Lewis claims she dusted herself with talcum powder from 1981 to 2014, in Illinois, Arkansas, Georgia and Virginia.
Her lawyers wrote that in 2013, at age 49, she was diagnosed with ovarian cancer.
They wrote that in 1982, a study of talcum powder use in the female genital area found a 92 percent increase in risk of ovarian cancer. They further wrote that in 1993, toxicologists found talc to be a carcinogen; in 1994, a cancer prevention group asked Johnson & Johnson chief executive Ralph Larson to withdraw talc products from the market.
They wrote that Walgreens marketed, promoted and sold Johnson & Johnson products.
Johnson & Johnson removed the suit to federal court in May.
Its lawyers argued that Lewis sued Walgreen, an Illinois business, only to overcome the diversity of citizenship between Lewis and Johnson & Johnson.
They wrote that Illinois statute entitles a product distributor to dismissal from claims of strict liability when the plaintiff is able to pursue a claim against a manufacturer.
“Walgreens does nothing more than provide shelf space for the retail of consumer products,” they wrote.
Lewis’s lawyers replied that Walgreen knew or should have known the risk to women.
“Walgreens to this day, some 20 years later, continues not only failing to warn, but affirmatively marketing talc products to women for use in the perineal region, going so far as to advise as to the appropriate type of talc to purchase,” Lewis's lawyers wrote.
Yandle ruled that Illinois statute did not mandate dismissal because Lewis alleged not only strict liability but also negligence and civil conspiracy.
“Accordingly, Walgreens will remain in the lawsuit even if it has a valid defense to the strict liability claim,” she wrote.
Prior to removal, Madison County Circuit Judge Barbara Crowder presided over the case.