PITTSBURGH – A Western Pennsylvania woman’s lawsuit against Giant Eagle and Johnson & Johnson for her development of ovarian cancer, after she used the latter’s talc-based personal hygiene products for more than half of her life, may be stayed due to a notice of bankruptcy filing recently introduced by the defense.
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 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 sought to strike punitive damages from the case or in the alternative, have such claims be separated from the remainder.
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, which later proved successful.
UPDATE
On Oct. 19, a suggestion of bankruptcy notice was filed by counsel for Johnson & Johnson, thereby leading to a complete stay of the proceedings, it argued.
“On Oct. 14, 2021, LTL Management, LLC, a North Carolina limited liability company, filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Western District of North Carolina,” the notice read, in part.
“Upon the filing of LTL’s Chapter 11 case, the automatic stay imposed by Section 362 of the Bankruptcy Code became immediately effective and, as a result, all claims asserted against LTL in the above-captioned action are stayed absent an order of the Bankruptcy Court lifting or modifying the automatic stay.”
The notice added that defendant Johnson & Johnson Consumer Inc. (“Old JJCI”), following a corporate restructuring that was completed on Oct. 14, 2021, ceased to exist – and that as a result of the restructuring, LTL is now responsible for the talc-related claims asserted against Old JJCI in this proceeding and a new entity named Johnson & Johnson Consumer, Inc. (“New JJCI”) was created as part of the same restructuring.
“One or more of the entities set forth on the list attached hereto as Exhibit B and/or Johnson & Johnson are defendants in this proceeding (collectively with Old JJCI and New JJCI, the “LTL Defendants”); and (ii) as a result of the automatic stay, no further action may be taken to prosecute the talc-related claims against any LTL defendant absent an order of the Bankruptcy Court lifting or modifying the automatic stay because (a) all LTL defendants share such an identity of interest with LTL that LTL is, in effect, the real-party defendant in any claims asserted against them in this proceeding and/or (b) prosecution of the talc-related claims against any LTL defendant would allow plaintiffs to fix claims against LTL – particularly through indemnity or alleged indemnity obligations, but also through collateral estoppel, res judicata and evidentiary prejudice,” per the notice.
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 and Brandy S. Ringer 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