PITTSBURGH – Giant Eagle and Johnson & Johnson have petitioned to send a Western Pennsylvania woman’s lawsuit against them for her development of ovarian cancer, after she used talc-based personal hygiene products for more than half of her life, to the Allegheny County Court of Common Pleas’s Commerce and Complex Litigation Center.
Donna Dexter of Oakmont first filed suit in the Allegheny County Court of Common Pleas on Jan. 8 versus Giant Eagle, Inc., of Pittsburgh.
(Johnson & Johnson and Johnson & Johnson Consumer, Inc. were later added as defendants in the case.)
The suit explained that asbestos is a known contaminant of talc mines, mines which yield one of the main components used in personal hygiene products, such as those used by the defendant.
In addition, it claimed that the hazards of using such talc products on the human body were first discovered 50 years ago, and that subsequent studies have borne out and further developed that assertion. Like talcum powder exposure, asbestos exposure is also a known risk factor for ovarian cancer.
“Plaintiff began using talc products in 1960, including Johnson & Johnson’s baby powder and Johnson & Johnson’s Shower to Shower. Plaintiff applied the talc products to her perineal area daily since she began using the products,” the suit stated.
“Plaintiff purchased the talc products from various Giant Eagle stores in Pennsylvania. On multiple occasions, the Giant Eagle defendant’s employees expressly affirmed the safety of the talc products, inducing plaintiff to purchase the talc products from Giant Eagle stores.”
Dexter alleged Giant Eagle was aware of the risks inherent in using the products, but sold the products anyway. Moreover, the suit asserted that another viable option was available to be sold, but not used.
“A feasible and safe alternative to talc has existed. For example, cornstarch is an organic carbohydrate that is quickly broken down by the body with no known adverse health effects. Cornstarch powders have been sold and marketed for the same uses as the talc products with nearly the same effectiveness as talcum powders,” the suit said.
Dexter alleged that continual use of the talc products in question later led her to develop ovarian cancer.
“Because of continuous exposure to the talc products that contain asbestos from applying the talc products to her perineal area since 1960, plaintiff began feeling pain and discomfort in her pelvic region. Plaintiff visited Dr. Eileen Segreti, M.D., who diagnosed plaintiff with ovarian cancer. Plaintiff experienced years of debilitating pain and suffering from ovarian cancer and endured numerous cancer treatments, including chemotherapy,” per the suit.
Counsel for Johnson & Johnson filed an answer and new matter to a second amended version of the complaint on May 5, expressly denying each and every one of Dexter’s allegations, and specifically denied that cosmetic grade talc causes ovarian cancer.
“The claims asserted in the complaint are barred, in whole or in part, because the FDA has exclusive or primary jurisdiction over the matters asserted in the complaint. The claims asserted in the complaint are preempted by federal law, including (without limitation) the Federal Food, Drug, and Cosmetic Act. Plaintiff’s claims are barred by the assumption of the risks alleged in the complaint. Plaintiff’s claims are barred because the risks, if any, associated with the use of the product at issue are outweighed by its utility,” per the answer’s new matter.
“Plaintiff’s claims are barred in whole or in part by plaintiff’s failure to assert an alternative safer design for the product at issue. Plaintiff’s claims are barred, reduced and/or limited pursuant to applicable statutory and common law regarding limitations of awards, caps on recovery, and setoffs. If plaintiff has sustained any injuries or damages, such were the result of intervening or superseding events, factors, occurrences or conditions, which were in no way caused by defendants and for which defendants are not liable.”
The answer added that the conduct of defendants, as well as the product at issue, conformed to the requirements of the FDA and there was no causal relationship between the product and the injuries Dexter suffered.
Furthermore, Johnson & Johnson seeks to strike punitive damages from the case or in the alternative, have such claims be separated from the remainder.
“If plaintiff is permitted to proceed to trial upon any claims for punitive damages, defendants reserve their right to demand such claims, if any, be bifurcated from the remaining issues,” the company’s motion said.
In a May 21 reply to the company’s new matter, the plaintiff denied the company’s answer material in its entirety.
UPDATE
The defendants filed a joint motion on June 28 to move the case to the Allegheny County Court of Common Pleas’s Commerce and Complex Litigation Center.
“First, plaintiff asserts 13 causes of action against defendants at two levels of the Baby Powder and Shower to Shower product chain: the product manufacturer (the Johnson & Johnson Defendants) and the retailer (Giant Eagle). These two categories of defendants will add to the complexity of this matter,” the motion stated.
“Second, this case presents novel and complex legal issues. Although many talc cases have been filed nationally, only a handful have been tried. This is among the first talc ovarian cases to be filed in Allegheny County. This case thus has potential to set important precedent. The complexity and novelty of the legal issues thus weighs in favor of referral to the Center.”
The defendants termed the issues of fact here as “novel and complex.”
“The causal relationship between talc and ovarian cancer, if any, is hotly contested. Evidence presented in motions and at trial will include numerous studies and expert opinions regarding the body of scientific evidence on the safety of cosmetic talc,” per the motion.
“The second amended complaint alone cites over 30 studies, and defendants anticipate presenting significant evidence and expert opinions to address the body of scientific evidence and contradict plaintiff’s assertions. Unraveling the science will require detailed explanation of the scientific method and complex analysis. This case will benefit from having a single judge who can learn the science and facts in order to assist the jury.”
For counts of negligence, strict liability (failure to warn), strict liability (defective design), breach of express warranties, breach of implied warranties, punitive damages and negligent misrepresentation, the plaintiff is seeking a long list of reliefs:
• Compensatory damages in excess of $75,000, including, but not limited to pain, suffering, discomfort, physical impairment, emotional distress, loss of enjoyment of life, and other noneconomic damages in an amount to be determined at trial of this action;
• Economic damages in the form of medical expenses, out-of-pocket expenses, lost earnings and other economic damages in an amount to be determined at trial of this action;
• Punitive and/or exemplary damages for the wanton, willful, fraudulent, reckless acts of the Giant Eagle defendant, who demonstrated a complete disregard and reckless indifference for the safety and welfare of the general public and plaintiff in an amount sufficient to punish the Giant Eagle defendant and deter future similar conduct;
• Pre-judgment interest, post-judgment interest, reasonable attorneys’ fees, costs, all other damages allowed under law and such other and further relief as this Court deems just and proper.
The plaintiff is represented by Jason A. Itkin, Kurt Arnold, Noah Wexler, Caj Boatright, Roland Christenson and Brittany L. Clark of Arnold & Itkin, in Houston, Texas.
The defendant is represented by Alice S. Johnston of Schnader Harrison Segal & Lewis in Philadelphia, plus Thomas E. Hanson, Jr., Regina S.E. Murphy and Williams J. Burton of Barnes & Thorndale, in Wilmington, Del.
Allegheny County Court of Common Pleas case GD-21-000312
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com