Madison - St. Clair Record

Thursday, September 19, 2019

Consumer claims Johnson & Johnson did not warn of safety risks of Baby Powder product

By Lhalie Castillo | Mar 13, 2018

EDWARDSVILLE – A Granite City woman alleges she would not have purchased Johnson's Baby Powder had she known about the dangers associated with the product, namely an increased risk of ovarian cancer.

Barbara Mihalich, individually and on behalf of all others similarly situated, filed a complaint on Feb. 27 in the Madison County Circuit Court against Johnson & Johnson Consumer Inc. alleging violation of the Illinois Consumer Fraud and Deceptive Business Practice Act and unjust enrichment.

Mihalich, who purchased the product for decades and claims to have relied on representations that the product was safe for external use, is not claiming physical harm or seeking recovery of personal injury damages.

"Plaintiff did not receive what she paid for - a safe product," the suit says. "Defendant knew the Baby Powder was unsafe for Plaintiff to use in the genital area but did not inform Plaintiff of the safety risks and omitted this safety information from its label. Had Plaintiff known the truth about the safety of Johnson's Baby Powder, she would not have purchased the product. As a result of her purchase of an unsafe product that she reasonably believed to be safe, Plaintiff suffered injury in fact and lost money."

Mihalich holds Johnson & Johnson Consumer Inc. responsible because the defendant allegedly advertised goods with the intent not to sell them as advertised and concealed, suppressed or omitted material facts on its labels.

The plaintiff seeks an order for the certification of the class, award for punitive damages, attorney's fees, costs and any further relief as the court deems just and proper. She is represented by Mark C. Goldenberg, Thomas Rosenfeld, Amy E. Callis and Kevin P. Green of Goldenberg, Heller & Antognoli PC in Edwardsville.

Madison County Circuit Court has seen a number of talcum powder-ovarian cancer related lawsuits against Johnson & Johnson and talc manufacturers in recent years, but most are removed or voluntarily dismissed. 

However, Madison County Circuit judge William Mudge dismissed two talcum powder cancer cases on Feb. 26 for lack of personal jurisdiction. The plaintiffs in those cases were both Illinois residents. 

Talc manufacturer Imerys Talc America Inc. sought dismissal, arguing that it had no connections to Illinois supporting jurisdiction in Madison County. The defendant merely sold talc to its customer, Johnson & Johnson, that could be modified and added to any products or sold anywhere beyond the defendant's control. 

Citing the BMS decision, Mudge concluded that there is "no adequate link" between Illinois and the plaintiffs' claims. 

While this lawsuit may be the first class action of its kind in Madison County Circuit Court, talcum powder-ovarian cancer related litigation has exploded in St. Louis City Circuit Court, considered to be a magnet jurisdiction for plaintiffs from across the country. Several multi-million dollar verdicts have come from the court of Circuit Judge Rex Burlison.

However, last October a $72 million verdict leveled against Johnson & Johnson in 2016 in Burlison's court was vacated by the Missouri Court of Appeals, Eastern District.

The appeals court held that in light of the groundbreaking ruling in Bristol-Myers Squibb (BMS) v. Superior Court of California, Burlison erred when he exercised personal jurisdiction over J&J because the claims of an Alabama woman did not arise out of the company's activities in Missouri.

Jacqueline Fox, who had resided in Birmingham, Ala., died in 2015, four months before her trial started on claims that her use of J&J talcum powder caused her to develop ovarian cancer. While the case originally included claims of 65 individual plaintiffs - only two who were Missouri residents - the case proceeded to trial on claims brought only by Fox.

Burlison's court entered a judgment of $10 million in compensatory damages and $62 million in punitive damages to her estate.

While the case was on appeal, the U.S. Supreme Court last June issued its ruling in BMS, holding that specific personal jurisdiction requires a connection between the forum state and the specific claims at issue. According to the ruling, even if resident plaintiffs have suffered similar injuries, specific jurisdiction is not afforded to the claims of non-residents.

Other St. Louis City Circuit Court verdicts - $110 million to Lois Slemp of Virginia and $55 million to Gloria Ristesund of South Dakota - remain under appeal.

Madison County Circuit Court case number 18-L-264

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