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Cosmetic Talc Litigation Media Coverage August 03, 2016
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J&J cites ad blitz in asking to move talc case from St. Louis
Aug 3, 2016 | Reuters
By Jessica Dye
Johnson & Johnson has asked a judge to relocate an upcoming trial over claims that its talc-based powders can cause ovarian cancer out of St. Louis, due to a "pervasive and targeted publicity campaign" by plaintiffs' firms. -
Plaintiffs in Missouri Talc Case Ask Court to Stay Proceedings in Light of Motion to Remand
Aug 2, 2016 | Harris Martin Publishing
Plaintiffs whose talcum powder claims were recently removed to federal court have asked that court to stay the proceedings, arguing that they have recently moved to remand and continuing before the court has a chance to rule on that motion would save time and judicial resources. -
Talcum Powder Complaint Roundup: New Suits Filed in Alabama, Georgia Federal Courts
Aug 2, 2016 | Harris Martin Publishing
Two new talcum powder lawsuits were filed recently in Alabama and Georgia federal courts, with each one of the plaintiffs contending that they developed ovarian cancer as a result of using Johnson & Johnson’s products. -
Plaintiffs in Talcum Powder Class Action Ask Calif. Court to Stay Proceedings
Aug 2, 2016 | Harris Martin Publishing
Plaintiffs in a class action talcum powder lawsuit filed two years ago in California have asked the federal court overseeing the lawsuit to stay the proceeding in light of the recent motion to create a coordinated docket for the pending talc-based powder product litigation. -
Talcum Powder Plaintiffs in Illinois Class Action Indicate Intent to Oppose Creation of MDL Docket
Aug 2, 2016 | Harris Martin Publishing
Plaintiffs involved in a class action lawsuit pending in Illinois federal court have indicated that they intend to oppose the recent motion to create a multi-district litigation docket for talcum powder claims. -
Talcum Powder Plaintiff Says Hospital Won’t Produce Tissue Blocks without Court Order
Aug 2, 2016 | Harris Martin Publishing
A hospital in control of a talcum powder plaintiff’s pathology slides and tissue blocks has indicated that it will not release the original pathology slides or tissue blocks without a court order, according to a status report from the plaintiff. -
Douching can double your risk of developing ovarian cancer
Aug 2, 2016 | Destiny Connect
By Zukiswa Zimela
Shop shelves are full of products promising to make women smell fresh and clean ‘down there’, however some research shows that douching with products to ‘clean’ the vagina can double your chances of getting ovarian cancer.
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J&J cites ad blitz in asking to move talc case from St. Louis
Aug 3, 2016 | Reuters
By Jessica Dye
Johnson & Johnson has asked a judge to relocate an upcoming trial over claims that its talc-based powders can cause ovarian cancer out of St. Louis, due to a "pervasive and targeted publicity campaign" by plaintiffs' firms.
In a motion filed in St. Louis state court on Monday, J&J said a blitz of ads over the past year targeting that market had tainted the jury pool, making it impossible for the company to get a fair trial there.
http://www.reuters.com/article/products-talc-advertising-idUSL1N1AJ1Q0
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Plaintiffs in Missouri Talc Case Ask Court to Stay Proceedings in Light of Motion to Remand
Aug 2, 2016 | Harris Martin Publishing
ST. LOUIS – Plaintiffs whose talcum powder claims were recently removed to federal court have asked that court to stay the proceedings, arguing that they have recently moved to remand and continuing before the court has a chance to rule on that motion would save time and judicial resources.
In a motion to remand filed on July 27 in the U.S. District Court for the Eastern District of Missouri, the plaintiffs noted that the underlying case was removed one day after “an identically postured case brought by the same Plaintiffs’ counsel, against the same defendants, with the same allegations, involving the same products, was remanded from the same District, rejecting the same arguments removal herein is founded upon.”
The instant case was brought by 88 plaintiffs who were allegedly injured by the use of talc-based powder products such as Baby Powder and Shower-to-Shower. The case was originally filed in the Missouri 22nd Judicial Circuit Court for St. Louis City; the defendants removed the suit on July 11.
In their removal notice, the defendants argued that federal jurisdiction was proper under the procedural misjoinder doctrine because the claims of the non-Missouri plaintiffs are jurisdictionally improper. On the same day it removed the lawsuit, the defendants filed a motion to dismiss the plaintiffs’ claims for lack of personal jurisdiction and improper venue.
In that motion, the defendants maintained that the case was filed by 88 unrelated individuals from 29 different states, all of who alleged that they developed an “unspecified subtype of ovarian cancer” as a result of applying talcum powder products, including Baby Powder or Shower-to-Shower, to their perineal areas.
In their motion to dismiss, the defendants urged the court to dismiss the claims of 82 non-Missouri plaintiffs for lack of personal jurisdiction.
“None of the Defendants in this case are subject to the personal jurisdiction of Missouri Courts as to the claims of the non-Missouri Plaintiffs,” the motion stated. “This Court should rule on the straightforward issue of personal jurisdiction first and dismiss the claims of all non-Missouri Plaintiffs, thereby creating complete diversity between the remaining Missouri Plaintiffs and any remaining defendants.”
Ultimately, the defendant argued, there is no constitutional basis to exercise general jurisdiction over any of the defendants.
“Not only is the issue of personal jurisdiction straightforward in this case,” the defendants additionally pointed out. “It is also extremely important in these circumstances. By refusing to consider the issue first, the Johnson & Johnson defendants will continue to be deprived of their Due Process rights as a result of the ongoing talc litigation in the City of St. Louis courts (including this Gallow case).”
In their recent motion to remand, however, the plaintiffs said that federal courts have repeatedly rejected the defendants’ fraudulent misjoinder argument, “which again serves as the only basis for presently being before this Court.”
“This Court has even remanded these cases sua sponte,” the plaintiffs said. “Nonetheless, Defendants want the Court to take up the issue of personal jurisdiction, knowing full well the Court does not have subject-matter jurisdiction. The Johnson & Johnson Defendants’ invitation here is a non-starter given there is no ‘difficulty and novel’ issue regarding subject-matter jurisdiction – the court can literally cut and paste the analysis from a myriad of prior remand orders.”
In the separate motion to stay, the plaintiffs asked the court for an expedited ruling on their motion to remand.
“Alternatively,” the motion to stay states, “Plaintiffs move for leave to initiate discovery directed to the Defendants on the issue of general personal jurisdiction. Plaintiffs additionally request an extension of time for Plaintiffs to respond to Defendants’ Motions to Dismiss for Lack of Personal Jurisdiction pending completion of said discovery or until Plaintiffs’ Motion to Remand is ruled upon.”
The plaintiffs are represented by James G. Onder, William W. Blair, Michael J. Quillin and Stephanie L. Rados of Onder, Shelton, O’Leary & Peterson LLC in St. Louis.
The defendants are represented by Beth A. Bauer of HeplerBroom LLC in Edwardsville, Ill., and Gerar T. Noce of the firm’s St. Louis office; and Mark C. Hegarty of Shook, Hardy & Bacon LLP in Kansas City, Mo.
Gallow, et al. v. Johnson & Johnson, et al., No. 16-01123 (E.D. Mo.).
http://harrismartin.com/article/21175/plaintiffs-in-missouri-talc-case-ask-court-to-stay-proceedings-in-light-of-motion-to-remand/
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Talcum Powder Complaint Roundup: New Suits Filed in Alabama, Georgia Federal Courts
Aug 2, 2016 | Harris Martin Publishing
COLUMBUS, Ga. – Two new talcum powder lawsuits were filed recently in Alabama and Georgia federal courts, with each one of the plaintiffs contending that they developed ovarian cancer as a result of using Johnson & Johnson’s products.
In her complaint filed July 29 in the U.S. District Court for the Middle District of Georgia, plaintiff Brenda Traylor said she was diagnosed with ovarian cancer in November 2015. Her cancer, she said in the complaint, was caused by exposure to talcum powder products such as Baby Powder and Shower-to-Shower.
“Plaintiff used the products to dust her genital area for feminine hygiene purposes,” the Traylor complaint said. “This was an intended and foreseeable use of the products based on the advertising, marketing, and labeling of the products.”
On July 28, plaintiff Jamie Johnston filed her complaint in the U.S. District Court for the Middle District of Alabama, accusing the defendants of negligence and willful and wrongful conduct in connection with the design of the talcum powder products.
Johnston, born in 1972, using Baby Powder and Shower-to-Shower for “nearly her entire life” until approximately 1999. She was diagnosed with ovarian cancer in December 1998, according to the complaint.
In her complaint, Johnston stated that she was not aware at the time of her diagnosis that her ovarian cancer was caused by talcum powder products and, as such, said that the running of the statute of limitations had been tolled.
The Traylor plaintiffs are represented by Henry G. Garrard III, James B. Matthews III, Andrew J. Hill III, Josh B. Wages and Patrick H. Garrard of Blasingame, Burch, Garrard & Ashley, P.C.
Of counsel in the Johnston complaint is Jamie A. Johnston, P.C., in Montgomery, Ala.
Traylor v. Johnson & Johnson, et al., No. 16-00623 (M.D. Ga.); Johnston v. Johnson & Johnson, et al., No. 16-620 (M.D. Ala.).
http://harrismartin.com/article/21174/talcum-powder-complaint-roundup-new-suits-filed-in-alabama-georgia-federal-courts/
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Plaintiffs in Talcum Powder Class Action Ask Calif. Court to Stay Proceedings
Aug 2, 2016 | Harris Martin Publishing
SACRAMENTO, Calif. –– Plaintiffs in a class action talcum powder lawsuit filed two years ago in California have asked the federal court overseeing the lawsuit to stay the proceeding in light of the recent motion to create a coordinated docket for the pending talc-based powder product litigation.
In a July 28 motion filed in the U.S. District Court for the Eastern District of California, the plaintiffs noted that the discovery in the case had been stayed pending the court’s ruling on a defense motion to dismiss the first amended complaint.
Plaintiff Mona Estrada filed the underlying class action in April 2014, on behalf of herself and all those similarly situated, contending that she was injured from the defendant’s talc-based powder products.
Johnson & Johnson moved to dismiss the suit in June 2014; one month later, the court ordered that the parties’ joint status report not be filed until 30 days after the ruling on the motion to dismiss.
“This effectively stayed all discovery,” the plaintiff explained.
The court granted the motion to dismiss with leave to amend in March 2015; the plaintiffs’ first amended complaint was filed in April 2015, but the defendant again moved to dismiss.
“That motion is fully briefed and pending,” the motion stated.
However, this month, a plaintiff in a related case filed a motion to create a multidistrict litigation coordinated docket for all talcum powder lawsuits.
As such, the plaintiffs urged the court to stay proceedings until the U.S. Judicial Panel on Multidistrict Litigation rules on the motion to coordinate.
“A stay in this action will promote judicial economy by avoiding duplicative efforts by this Court and the parties,” the motion said. “If the Panel grants the MDL motion, a consolidated complaint will be filed and the motion to dismiss process renewed. Thus, any efforts expended by this Court on the pending motion to dismiss or other matters will most likely need to be replicated by the judge who is ultimately assigned the consolidated litigation …. It would be a waste of time and expense for this Court to make rulings with the possibility that its efforts are discarded or will need to be duplicated should the Panel grant the MDL motion.”
The plaintiffs are represented by Timothy G. Blood, Leslie E. Hurst, Thomas J. O’Reardon II and Paula R. Brown of Blood Hurst & O’Reardon LLP in San Diego; W. Daniel “Dee” Miles III, Lance C. Gould and Alison Douillard Hawthorne of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C.; and Allen Smith Jr. of the Smith Law Firm in Ridgeland, Miss.
Estrada, et al. v. Johnson & Johnson, et al., No. 14-01051 (E.D. Calif.).
http://harrismartin.com/article/21174/talcum-powder-complaint-roundup-new-suits-filed-in-alabama-georgia-federal-courts/
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Talcum Powder Plaintiffs in Illinois Class Action Indicate Intent to Oppose Creation of MDL Docket
Aug 2, 2016 | Harris Martin Publishing
EAST ST. LOUIS, Ill. –– Plaintiffs involved in a class action lawsuit pending in Illinois federal court have indicated that they intend to oppose the recent motion to create a multi-district litigation docket for talcum powder claims.
According to an Aug. 1 docket entry entered in the U.S. District Court for the Southern District of Illinois, a status conference was held that day, during which the parties informed the court that a motion had been filed to transfer this case into an MDL.
“Plaintiffs will be opposing the motion,” the court said. “Upon entry of an order on the currently pending motion to dismiss, should the case survive the motion, the parties are directed to contact this Court in order to schedule a telephone conference.”
Plaintiff Barbara Mihalich filed the class action complaint in May 2014 on behalf of herself and all other similarly situated in the state of Illinois under the Illinois Consumer Fraud and Deceptive Business Practices Act and for violations of the Missouri Merchandising Practices Act.
In the lawsuit, the plaintiff also sought injunctive relief to stop the defendants’ “deceptive and fraudulent commercial practices in order to protect Illinois consumers.”
“As a result of defendants’ misrepresentations and omissions regarding the safety of Johnson’s Baby Powder, Plaintiffs and the proposed Class have purchased a product which is potentially lethal,” the complaint alleged, adding that the plaintiff is not claiming physical harm or seeking the recovery of personal injury or other monetary damages.
The defendants recently filed a reply brief backing a motion they filed to dismiss the first amended complaint, maintaining that the plaintiffs cannot sidestep Rule 9(b) requirements by asserting that Johnson & Johnson’s conduct was “unfair.”
“Here,” the defendant argued, “Plaintiff’s claims are all based on supposed ‘concealment, misrepresentation, and fraud’ and the only reference to ‘unfair’ is in a boilerplate conclusion that J&J’s conduct allegedly ‘constitute[s] unfair, deceptive and/or fraudulent’ practices. In short, as this Court already held, Plaintiff’s CFA claim ‘must be pleaded with the same particularity and specificity under Rule 9(b0 as that required for common law fraud.’”
In January, the federal court overseeing the case dismissed it with leave to amend, opining that the plaintiff had established Article III standing, but had failed to meet the heightened requirements under the Illinois Consumer Fraud and Deceptive Business Practices Act. For more on the court’s order, see the Premier issue of HarrisMartin’s Talcum Powder Litigation Report.
Mihalich, et al. v. Johnson & Johnson, et al., No. 14-00600 (S.D. Ill.).
http://harrismartin.com/article/21171/talcum-powder-plaintiffs-in-illinois-class-action-indicate-intent-to-oppose-creation-of-mdl-docket/
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Talcum Powder Plaintiff Says Hospital Won’t Produce Tissue Blocks without Court Order
Aug 2, 2016 | Harris Martin Publishing
TRENTON, N.J. –– A hospital in control of a talcum powder plaintiff’s pathology slides and tissue blocks has indicated that it will not release the original pathology slides or tissue blocks without a court order, according to a status report from the plaintiff.
In a July 27 letter to the U.S. District Court for the U.S. District of New Jersey, counsel for the plaintiffs noted that the hospital did indicate that they would comply with a court order.
The letter also stated that Memorial Sloan Kettering Hospital had partially complied with the subpoena and produced an inventory list for pathology slides.
“We are going to follow-up with them to get the full inventory list for the tissue blocks and we are hopeful that they will be forthcoming,” the letter stated.
Counsel for the plaintiff additionally noted that since New York is the “compliance court,” the motion to enforce the subpoena will be filed in the Southern District of New York.
“It is then within that Court’s discretion to decide the motion or to transfer it to this Court for resolution,” the letter stated.
Counsel for the plaintiffs additionally noted that the parties have been working together to draft a motion to compel the subpoena.
Plaintiff James Chakalos asserted the claims on behalf of his wife, Janice Chakalos. In his complaint, the plaintiffs said that Janice Chakalos developed ovarian cancer as a result of her use of talc-based powder products.
In a May 6 letter, the plaintiffs indicated his intent to request permission to file a motion regarding the testing of tissue samples it recently received from Memorial Sloan Kettering Hospital, at which his wife received chemotherapy and, eventually, underwent a hysterectomy and oophorectomy.
According to the plaintiff’s letter, Sloan created pathology slides from each block of tissue it recovered in order to confirm the ovarian cancer diagnosis. The hospital also preserved the blocks of tissue from which the slides were made.
The plaintiff believes that six existing blocks remain, but, despite “diligent attempts to obtain these tissue samples for purposes of testing in this case,” Sloan has denied requests to release the original pathology slides or tissue blocks.
“Instead they agreed to create re-cuts of the slides for review before they would even consider releasing larger samples,” the letter explained.
An expert for the plaintiff reviewed the re-cut slides and, subsequently, requested the relevant blocks in order to have a “sufficient amount of tissue to test for the presence of talc.”
The hospital, however, denied this request and only provided small samples, which are destroyed during the testing process. And while an expert retained by the plaintiffs has developed a method by which to test the samples, the testing takes place in a clinical lab, at which representatives for the defendants are not permitted.
“We are left with two alternatives,” the plaintiff said. “[H]ave our expert conduct destructive testing on the scrolls/curls of tissue, for which we hereby seek the Court’s permission; or request that the Court order Sloan to produce the entire remaining blocks of tissue for non-destructive examination and subsequent return to Sloan. It is our understanding that all of the blocks still have tissue in them but not enough tissue to create more slides or curls without exhausting the block which Sloan is unwilling to do.”
The letter further noted that the defendants have declined to allow the tissue to be tested using the plaintiff’s expert’s method.
“Although any test results are not necessarily dispositive, juries in the ‘CSI’ age expect parties to run any available tests,” the plaintiff explained. “This tissue has been potential compromised by chemotherapy so Plaintiff cannot be certain that if any talc was present in the tissue that it is still there. However, the tissue serves no purpose by remaining untested. Plaintiff wishes to file the motion to avoid any potential spoliation of evidence arguments at trial. Therefore, Plaintiffs seek an Order allowing for destructive testing of the available scrolls/ curls to prevent an argument of spoliation of evidence by Defendants as to this tissue. If this honorable court denies plaintiff’s request to file a motion for destructive testing, Plaintiff alternatively requests that the Court compel production of the tissue blocks from Sloan and extend the deadline related to the relevant expert reports so that non-destructive testing can be conducted on the tissue blocks.”
In its responding letter, counsel for defendant Imerys Talc wrote that, while it understands the points addressed by the plaintiff, “the fact that there is an extremely limited volume of tissue available for examination precludes the destructive testing requested.”
According to the defendant, the destructive testing would destroy the tissue samples, could not be replicated by the defendant, and cannot be observed by the defendant.
“Moreover, the testing proposed by plaintiffs has not been shown to be reliable and the resulting destruction of tissue leaves no means to verify and/or test the results,” the defendant pointed out. “Based upon these factors, destructive testing is prejudicial and therefore unacceptable to Defendants.”
Imerys Talc did agree, however, that compelling Sloan to produce the remaining tissue blocks for non-destructive testing would be acceptable.
“Release of the blocks by Sloan allows all parties to perform appropriate and adequate non-destructive testing of the samples, ensures that neither party is prejudiced, and allows all parties the most equal opportunity to present their evidence at trial,” the defendant said.
The defendant further noted that this approach would require an extension of the expert report deadline and opined that a 90-day extension would be appropriate.
In their recent letter, however, the plaintiffs maintained that they do not intend to story the actual products that are at issue in the case.
“The tissue samples we wish to test are not critical to defendants’ defense nor do we anticipate that Defendants’ are planning on inspecting or testing the tissues if we do not test them,” the plaintiffs said. “We believe that Defendants’ experts are not planning on testing the tissue with destructive or non-destructive testing. Therefore, we are not depriving them or prejudicing them by testing in this manner. Although we are not certain we believe that the only examination that Defendants’ experts would perform would only be in reaction to whatever tests that Plaintiff’s expert performs and that they do no perform independent testing.”
The plaintiffs said further that, while they do not believe that the small amount of tissue constitutes “destruction of material evidence,” the requirements for such destructive testing have been met.
“The testing of the small amount of tissue in the plaintiff’s possession is reasonable, necessary, and relevant to Plaintiff’s case,” the letter stated. “…Testing this tissue does not hinder Defendants ability to present evidence or prejudice them at trial.”
The plaintiffs also pointed out that there are non-destructive testing methods available, but executing those would require a court order to obtain the tissue blocks from the hospital.
In a July 14 letter, counsel for the plaintiffs told the court that it had requested the production of all pathology slides and tissue blocks and, at the time, believed that the hospital was working towards releasing the pathology material and did not feel that a motion to compel was necessary at that time.
Counsel for the plaintiffs is Michael Kuharski of Kuharski, Levitz & Giovinazzo in Staten Island, N.Y.
Imerys Talc is represented by Lorna A. Dotro of Coughlin Duffy in Morristown, N.J.
Chakalos v. Johnson & Johnson, et al., No. 14-07079 (D. N.J.).
http://harrismartin.com/article/21170/talcum-powder-plaintiff-says-hospital-wont-produce-tissue-blocks-without-court-order/
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Douching can double your risk of developing ovarian cancer
Aug 2, 2016 | Destiny Connect
By Zukiswa Zimela
Science has come up with a very good reason to stop trying to clean your vagina with douching products
Shop shelves are full of products promising to make women smell fresh and clean ‘down there’, however some research shows that douching with products to ‘clean’ the vagina can double your chances of getting ovarian cancer.
The study, titled Douching, Talc Use, and Risk of Ovarian Cancer, focused on 50 884 women in the US and Puerto Rico who had a sister diagnosed with breast cancer. Participants were asked about douching and talc use during the previous 12 months. The women were between the ages of 35 to 74 years old and were cancer-free when they reported for the study.
According to Reuters, the following year, 154 women were diagnosed with ovarian cancer. What was shocking was that the women who admitted to douching the previous year almost doubled their risk of developing ovarian cancer, the study found.
South African women are not immune to douching.
According to a book published in 2009 titled HIV/AIDS in South Africa 25 Years On: Psychosocial Perspectives, douching happens for a number of reasons.READ MORE: Female Ugandan students have created an app that detects vaginal bacteria
Dry sex or vaginal douching is practised for increasing the sexual pleasure of men, the authors say.
According to the research, this is done in a manner of ways. Women clean their vaginas with a number of concoctions such as antiseptics and detergents, or put traditional herbs inside their vaginas. Sometimes women insert paper or cotton wool after sexual intercourse to dry and tighten their vaginas.
In a previous interview with DESTINY, sex expert and life coach Jade Zwane explained why women felt the need to sanitise their vaginas.
“Historically, women have been taught to keep their legs shut tight, as sex is only for the pleasure of the male and purely for procreation on our part,” she said.READ MORE: Lab-grown vaginas a medical first
Zwane went on to explain that there are a number of damaging myths around women’s bodies that perpetuate the idea that they are unsanitary and need cleaning. These include the idea that the vagina is dirty and it stinks.
“They’re actually self-cleaning, and every woman has her own scent. There’s also the belief that if a woman doesn’t have a ‘tight’ vagina, it means she’s promiscuous,” she said.
Besides an increased risk of cancer, douching has other risks. According to WebMD, douching is also linked to illnesses such as vaginal infections (bacterial vaginosis) because it interrupts the natural balance of bacteria in the vagina.
Douching is also linked to pelvic inflammatory disease (PID).
“PID is an infection of the uterus, fallopian tubes, and/or ovaries. Research has found that women who douche may have a 73% higher risk of getting PID,” according to WebMD.
http://www.destinyconnect.com/2016/08/02/douching-doubles-risk-ovarian-cancer/
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