Plaintiffs’ attorney Mark Lanier a Los Angeles based attorney has filed a motion in court for the dismissal of a case that seeks to require cancer warnings on Johnson & Johnson’s baby powder products sold in California.
However, Johnson & Johnson, the defendant, opposed the motion and accused Lanier of intentionally stalling the case.
Lanier of The Lanier Law Firm filed the case under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 AKA Proposition 65 in Los Angeles County Superior Court. His clients were seven California residents who claim they were misled about the safety of J&J’s Shower to Shower and baby powder products. Asbestos, a carcinogen was found on both products.
Proposition 65 requires businesses to provide a “clear and reasonable warning” before exposing consumers to listed carcinogens and Reproductive, and or developmental toxicants that potentially can cause birth defects or other developmental harm.
Lanier’s suit also sought for restitution and civil penalties of $2,500 daily for each violation.
On April 18, plaintiffs moved to amend their complaint to add Valeant Pharmaceuticals North America LLC as another defendant. They claimed that they found out that Shower to Shower products have been owned by Valiant since 2012, but some stores still carried the product with the Johnson & Johnson label. They added that both companies used talc sourced from the same Chinese mines that contained asbestos.
Michael Akselrud, an associate at the Lanier Law Firm said that the purpose of the motion was to bring all parties that violated Proposition 65 to court in one case.
According to Akselrud, he intended to refile the case.
Both Valeant which was renamed Bausch Health US LLC and Johnson & Johnson opposed the amendment. The defendants saw it as the plaintiff’s way to buy more time.
Johnson & Johnson attorney Elyse Echtman noted that the plaintiffs already knew about J&J’s sale of Shower to Shower.
According to Echtman, now that they have records that show that the plaintiffs have known that the products are safe, they are asking the court for voluntary dismissal of the case “so that they can try again.”
Lanier and Michael Akselrud did not respond to requests for comment.
A hearing is set for July 29.
Echtman wrote that the plaintiffs are apparently not satisfied with the strategies they have developed “which is why they seek court permission for a complete do-over.”
J&J also noted that only one of the five plaintiffs who sat for depositions knew they were parties in a lawsuit. Some of them were not aware of Prop 65.
Johnson & Johnson attorney Peter Bicks said that the lawsuit “was completely lawyer manufactured,”
In a response filed, Akselrud refused to consider the defendant’s concerns about the plaintiffs’ lack of awareness about the case. He said that cases against Johnson & Johnson that its talcum powder products contain asbestos have been widely publicized.
Akselrud wrote that the “FDA’s warnings about asbestos in cosmetic products demonstrates the merits of plaintiffs’ case.”
FDA’s warnings about asbestos will probably not be enough for the Lanier firm to get out of the mess they have created, but stranger things have happened in Prop 65 litigation. If the case proceeds beyond the July 29 hearing date, it may proceed to trial in October 2019.