Ill. talcum powder class action survives J&J’s motion to dismiss

Sept. 23, 2016 – San Diego, CA — A class action lawsuit filed in Illinois federal court survived Johnson & Johnson’s attempt to dismiss it Tuesday.

Johnson & Johnson filed a motion to dismiss the class action suit back in February, arguing the plaintiff not only failed to sufficiently plead certain claims, but lacked standing to bring others.

U.S. District Judge David R. Herndon dismissed J&J’s motion in part on Tuesday, Sept. 20, upholding two of the plaintiff’s claims but dismissing her claim of unjust enrichment.

The class action suit was first filed by Illinois resident Barbara Mihalich in 2014. Judge Herndon dismissed her complaint for failure to state a claim in December 2015, but gave her the chance to submit an amended complaint by the end of January.

Mihalich’s amended complaint alleged women faced an increased risk of ovarian cancer due to prolonged use of J&J’s talc-based baby powder in the female perineum. The complaint also alleged J&J knew of the risks associated with its product, which Mihalich supported by citing various national studies dating back to the 1960s.

Mihalich alleged violations under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA) and sought injunctive relief to stop J&J from marketing its baby powder in the future without proper warnings on the label. Mihalich also alleged claims of unjust enrichment, arguing J&J unjustly retained a benefit to her detriment.

Judge Herndon upheld Mihalich’s claim of alleged violations under the ICFA, as well as her claim of unjust enrichment, writing in his Sept. 20 Memorandum and Order:

“At this stage, plaintiff’s assertions are sufficient to withstand dismissal.”

The judge did grant J&J’s motion to dismiss plaintiff’s claims of injunctive relief, however, writing:

“Mihalich cannot rely on the idea that other Illinois consumers may be deceived by Johnson’s Baby Powder label or advertisements in order to establish that she has standing to pursue injunctive relief. … Mihalich has failed to allege that she personally will suffer ‘real and immediate’ harm based on the defendant’s actions, and as such, Mihalich lacks standing to seek injunctive relief.”

Mihalich filed this class action suit on behalf of herself and potentially thousands of other women who may be “similarly situated.” Johnson & Johnson faces hundreds more lawsuits filed across the country in both state and federal courts regarding its talc-based products and their potential link to ovarian cancer.

The case is Mihalich v Johnson & Johnson et al. (3:14-cv-00600) in the U.S. District Court for the Southern District of Illinois.