(Law 360, July 6, 2017) — A California judge tentatively denied Imerys Talc’s bid to escape an impending trial over claims that a woman’s ovarian cancer was caused by using talc mined by Imerys and sold by Johnson & Johnson, holding Wednesday that Imerys was aware talc usage could possibly cause cancer. Judge Nelson wrote that Imerys failed to warn consumers about the dangers of its talc, writing that, viewing the evidence in the light most favorable to the plaintiff, it appears Imerys knew talc had been listed as a possible carcinogen by the International Agency for Research on Cancer.
“Defendant concedes it knew that Johnson & Johnson would use its talc in body powders, and that perineal use of talc-based body powders was potentially hazardous,” Judge Nelson wrote.
It’s therefore a question of fact whether Imerys was reasonable in relying on J&J to warn consumers, rather than doing so itself, the judge concluded.
Judge Nelson said she would issue a final written ruling as soon as she could. The judge added that she would try and issue a ruling about the admissibility of Echeverria’s proposed expert witnesses by Friday.
Attorneys representing Echeverria argued in response that the California Supreme Court’s 2016 ruling in Webb v. Special Electric Co. made clear that bulk ingredient suppliers do have a duty to warn consumers, and that the court did not limit this finding to suppliers of “inherently dangerous” products.
Echeverria filed suit with six other women in LA Superior Court in July 2016, alleging that for years she used, according to the product’s instructions, talcum powder mined by Imerys and sold by J&J, and that she developed ovarian cancer in 2007.
Echeverria would be the first plaintiff to head to trial out of the hundreds in the complex litigation consolidating California claims against the companies. Her attorneys had argued in January that her case should be tried first because she had been diagnosed with only six months to live, and that month Judge Nelson scheduled her trial for July 10.
Echeverria’s trial comes in the wake of six trials in St. Louis over the alleged link between J&J’s talcum powder products and ovarian cancer. The company has been hit with verdicts totaling more than $300 million in the first handful of cases to go to trial there, and it’s been cleared of liability in one trial. The judge overseeing the St. Louis talc cases put a stop to most recent trial in the city, declaring a mistrial because of the U.S. Supreme Court’s recent ruling in Bristol-Myers Squibb Co., which struck down a California Supreme Court ruling allowing out-of-state plaintiffs to join a mass action over the blood-thinner Plavix.