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LOS ANGELES – A federal judge is expected to hear arguments next week over a motion by counsel for a group of plaintiffs in a personal Injury and product liability case against Johnson & Johnson, asking that their lawsuit be dismissed.
It would stand to reason in theory that Johnson & Johnson would be in favor of dismissing the suit filed by Lanier Law Firm, but instead, Johnson & Johnson's attorneys say the reason Lanier wants it dismissed is to avoid a trial it knows it can't win.
"The Lanier Law Firm commenced this action as a transparent tactical maneuver to improve their litigation position in personal injury actions that they have pending against defendants across the country," Johnson & Johnson said in its July 8 motion opposing dismissal. "They saw Proposition 65 as a potential vehicle to obtain a court-ordered cancer warning on defendants’ talcum powder products - a warning that the Federal Food and Drug Administration twice found unwarranted."
Johnson & Johnson is represented by Orrick, Herrington & Sutcliffe in Los Angeles, Sacramento and New York.
The plaintiffs seek dismissal now because, after fact discovery and three rounds of expert disclosures, Lanier no longer has faith in its case and wants to fall back and regroup, Johnson & Johnson said in its opposition.
"Now, with a fully developed record that shows what plaintiffs have known all along - that the products are safe - they ask the court to voluntarily dismiss so that they can try again," Johnson & Johnson's opposition said. "Plaintiffs seek a voluntary dismissal for the patently improper reason of avoiding an inevitable adverse ruling on the merits."
The case is assigned to U.S. District Court Judge George H. Wu, on the bench in California's Central District, Western Division, who is scheduled to hear the Lanier's motion to dismiss and Johnson & Johnson's opposition on Monday, July 29.
Trial is scheduled to begin Tuesday, Oct. 15.
The Lanier Law Firm, based in Houston, filed the case last year on behalf of seven California residents and claimed Johnson & Johnson misled the public about the safety of its baby powder and Shower to Shower products. The firm filed the case under California's Safe Drinking Water and Toxic Enforcement Act of 1986, often called "Proposition 65" or "Prop 65."
Plaintiffs are asking the court, among other things, to order Johnson & Johnson to place cancer warnings on its talc powder products in California. The lawsuit also seeks restitution and civil penalties of $2,500 per day for each alleged violation.
Named plaintiffs in the case are Hermelinda Luna, Alexandria Hanks-Caldwell on behalf of the estate of Tania D. Hanks, Ethel Herrera, Jeanette Jones, Becky Canzoneri, Margaret Reed and Brenda Versic. However, four of the plaintiffs, Hanks-Caldwell, Reed, Canzoneri and lead plaintiff Luna, testified during depositions that they didn't know they were plaintiffs.
"When they were shown the complaint, the individuals were under the misimpression that it sought personal injury damages for ovarian cancer," Johnson & Johnson's opposition said. "Not one of the five plaintiffs who was deposed had undertaken a search for responsive documents and things in response to defendants’ document requests. In fact, none of those plaintiffs was aware that defendants had propounded discovery requests."
In its July 15 response to Johnson & Johnson's opposition to dismissing the case, Lanier maintained it doesn't have to "establish a 'good reason' for dismissal" but that they aren't seeking a tactical retreat.
"Plaintiffs’ motion for voluntary dismissal is not 'a transparent tactical maneuver' as J&J contends," Lanier Law Firm's response said. "Plaintiffs filed this action amid the growing body of concern and scientific evidence about the deadly and dangerous carcinogens in J&J’s talc-based products."
And the plaintiffs' case has merit and Johnson & Johnson will not suffer if the case is dismissed, according to Lanier Law Firm's response.
"J&J has not demonstrated that it will endure legal prejudice or be unfairly affected by dismissal of this action," the response said.