In re Johnson & Johnson Talcum Powder Prods. Mktg., Sales Practices, & Prods. Liab. Litig.

Citation553 F.Supp.3d 211
Decision Date16 June 2021
Docket NumberMDL No. 16-2738 (FLW) (LHG)
Parties IN RE: JOHNSON & JOHNSON TALCUM POWDER PRODUCTS MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION
CourtU.S. District Court — District of New Jersey
OPINION

WOLFSON, Chief Judge:

Individual consumer-plaintiffs ("Plaintiffs") brought tort actions related to talcum powder use in their respective states against defendants Johnson & Johnson, Johnson & Johnson Consumer, Inc. f/k/a Johnson & Johnson Consumer Companies, Inc. (the "Johnson & Johnson Defendants"), Imerys Talc American, Inc. f/k/a Luzenac America, Inc. f/k/a Ro Tino Minerals, Inc. ("Imerys"), and Personal Care Products Counsel ("PCPC") (collectively, "Defendants"). Those cases have been transferred to this Multidistrict Litigation ("MDL") by the MDL Panel for pretrial coordination purposes. Before the Court is PCPC's Motion for Summary Judgment on all claims against it. For the reasons set forth below, PCPC's Motion is GRANTED .

I. BACKGROUND1
A. Factual Background

PCPC is a non-profit, trade association for its members, who are cosmetics and personal care products manufacturers and ingredient suppliers. (PCPC Statement of Undisputed Facts ("PCPC SUMF"), ¶¶ 1–2.) PCPC is organized under the laws of the District of Columbia and maintains a principal place of business in the District of Columbia. (Id. ¶ 2.)

Plaintiffs’ claims against Defendants center on the alleged link between ovarian cancer

and the use of talc products, specifically those sold by the Johnson & Johnson Defendants. Plaintiffs allege that the products contained known carcinogens, such as asbestos, arsenic, and heavy metals and that they, or the person whose estate they represent, developed cancer as a result of using the products. Plaintiffs further allege that Defendants, including PCPC, knew of the potential health effects of exposure to the products and misrepresented to consumers, regulators, and the scientific and medical communities the contents of, and health hazard posed by, the products. Relevant here, Plaintiffs assert common law claims of negligence, fraud, fraudulent concealment, and civil conspiracy against PCPC.

Different from traditional products liability claims, Plaintiffs’ claims against PCPC arise from PCPC's activities as a trade association for the cosmetics industry. The Johnson & Johnson Defendants are members of PCPC and participated with PCPC "and other [industry] members on petitioning various government entities regarding the regulation of talc." (PCPC Resp. to Pls.’ SUMF ¶ 1.) Specifically, in the 1970s, PCPC organized a talc task force (the "Talc Task Force") "to coordinate voluntary, self-regulating testing standards for asbestos." (Pls.’ SUMF ¶ 1.) The Talc Task Force worked with the Food & Drug Administration ("FDA") and provided documentation from talc manufacturers regarding the presence of certain types of asbestos in talc. (See id. ; PCPC Resp. to Pls.’ SUMF ¶ 1.) Thereafter, in 1976, PCPC formed the Cosmetic Ingredient Review ("CIR") "to thoroughly review and assess the safety of cosmetic ingredients in an unbiased and expert manner."2 (Pls.’ SUMF, Ex. 47, at 5.) The CIR is wholly funded by, and shares the same office space as, PCPC in Washington, D.C. and CIR staff are considered employees of PCPC. (Pls.’ SUMF ¶¶ 11–12.) The CIR and its review processes, however, "are distinctively separate from [PCPC] and the cosmetics industry, except as the latter contributes directly and substantially by providing data needed for assessing safety." (Pls. SUMF, Ex. 47, at 5.)

In the 1990s, the PCPC Talc Task Force began meeting frequently and, from 1992 to 2009, the Johnson & Johnson Defendants contributed significant funds to the Task Force "in order to pool resources and hire scientists and consultants to help [engage] regulatory agencies" about the safety of talc. (Pls.’ SUMF ¶ 4; PCPC Resp. to Pls.’ SUMF ¶ 4.) PCPC also formed, and operated, various committees over the years focused on safety issues facing the cosmetic industry, including the Scientific Advisory Executive Committee ("SAEC") and the Safety and Regulatory Toxicology Committee ("SRTC"). (Pls. SUMF ¶ 7.)

B. Procedural History

In their Complaint, Plaintiffs assert claims of negligence, fraud and fraudulent concealment, and civil conspiracy against PCPC. Specifically, in Count X of the Amended Complaint, Plaintiffs bring a common law negligence claim against PCPC. (Am. Compl. ¶¶ 132–41.) In support of their negligence claim, Plaintiffs allege that PCPC is a national trade association, the "purpose and intent of [which] was to interact with and influence local, state and federal governmental agencies on issues related to, among other things, the regulation and marketing of talc-based body powders," including the products at issue in this MDL. (Id. ¶¶ 133–34.) Plaintiffs allege that PCPC had knowledge of the alleged risk of ovarian cancer

caused by the application of talc products to the female perineal area. (Id. at 135.) According to Plaintiffs, PCPC "voluntarily undertook a duty of care to Plaintiffs by self-regulating the cosmetics industry by promulgating federal, state and local standards, norms and/or bylaws that govern, control and/or inform the manufacturing, design, labeling, marketing and/or branding practices of its member companies, including but not limited to the Johnson & Johnson Defendants and Imerys Talc." (Id. ¶ 137.) Plaintiffs claim that PCPC breached that duty by "negligently failing to ensure that the Johnson & Johnson Defendants and Imerys Talc complied with and adhered to the PCPC standards, norms and/or bylaws concerning the safe manufacture, design, labeling, marketing, distribution and/or branding of [their talc-based products] ... despite their significant health and safety risks of which PCPC had full knowledge." (Id. ¶ 138.) Plaintiffs contend that, as a proximate result of this breach, Plaintiffs suffered damages. (Id. ¶¶ 140–41.)

In Count XIII of the Amended Complaint, Plaintiffs assert a claim of fraud against PCPC. (Id. ¶¶ 159–70.) Plaintiffs allege that PCPC misrepresented and concealed material facts to consumers and users of talc-based body powders and local, state and federal regulators in order to unduly influence the regulation and marketing of talc. (Id. ¶ 160–61.) Plaintiffs allege that the conduct giving rise to their fraud claim includes the formation of the Talc Task Force and the activities of the Talc Task Force. (See id. ¶ 164.) For example, Plaintiffs claim that the Talc Task Force funded scientific research studies on the safety of talc and then "edited the scientific reports in an effort to skew the data so that it demonstrated the safety of talc and talc-based body powder and suppressed data demonstrating these dangers." (Id. ¶ 164(b).) According to Plaintiffs, the consuming public, including Plaintiffs, relied on PCPC's misrepresentations concerning the safety of talc products, and further that Plaintiffs would not have purchased or used talc-based products if not for those misrepresentations. (See id. ¶¶ 165–68.) Relatedly, in Count XVII of the Amended complaint, Plaintiffs assert a fraudulent concealment claim against PCPC. (Id. ¶¶ 197–208.) In support of this count, Plaintiffs allege that PCPC fraudulently suppressed material information regarding the safety and efficacy of talc-based body powders from the public. Indeed, Plaintiffs contend that "[a]t the time PCPC concealed the fact that talc based body powders ... were not safe as designed and marketed by the Johnson & Johnson Defendants, PCPC was under a duty to communicate this information to local, state and federal agencies, as well as the general public, in such a manner that the general public could appreciate the risks associated with using [talc products], generally." (Id. ¶ 201.) Plaintiffs allege that they relied on PCPC's concealment of information regarding the safety of talc products. (Id. ¶ 202.)

Finally, in Count XVIII, Plaintiffs assert a claim of civil conspiracy against all Defendants, including PCPC. (Id. ¶¶ 209–16.) In support of Count XVIII, Plaintiffs allege that Defendants, including PCPC, conspired to defraud Plaintiffs and consumers of talc-based products in order to maintain the popularity and reputation of such products and, therefore, continue high sales of the products, at the expense of consumer safety. (Id. ¶ 212.) Notably, nowhere in the Complaint do Plaintiffs assert any products liability claims against PCPC. Indeed, Plaintiffs only assert such claims against the manufacturer defendants, i.e. , the Johnson & Johnson Defendants and Imerys. (See id. ¶¶ 57–116.) For example, in Counts I and II of the Amended Complaint, Plaintiffs assert strict liability—failure to warn claims against Imerys and the Johnson & Johnson Defendants, which specifically state that only those defendants "are liable under a theory of strict products liability." (Id. ¶¶ 58, 68.)

Pursuant to Case Management Order No. 10 in the MDL, all claims against PCPC that were not designated for trial in either New Jersey or the District of Columbia were dismissed. PCPC moves for summary judgment on all claims remaining against it.3

II. LEGAL STANDARD

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A factual dispute is genuine only if there is "a sufficient evidentiary basis on which a reasonable [factfinder] could find for the non-moving party," and it is material only if it has the ability to "affect the outcome of the suit under governing law." Kaucher v. Cty. of Bucks , 455 F.3d 418, 423 (3d Cir. 2006) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Disputes over irrelevant or unnecessary facts will not preclude a grant...

To continue reading

Request your trial
1 cases
  • IDT Domestic Telecom, Inc. v. Crumpler
    • United States
    • U.S. District Court — District of New Jersey
    • 31 Enero 2023
    ... ... Litig., 77 F.Supp.3d 422, 430 (D.N.J. 2015) (quoting ... the defendant's concealment.” In re Johnson ... & Johnson Talcum Powder Prods. Mktg., ales Practices, ... and Prods. Liab. Litig., 553 ... ...
1 firm's commentaries
  • Suing the Certifiers – A Dangerous Undertaking
    • United States
    • LexBlog United States
    • 8 Agosto 2022
    ...most recently dismissed in In re Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, & Products Liability Litigation, 553 F. Supp.3d 211 (D.N.J. 2021). First, a trade association could not be liable under New Jersey’s product liability statute: As a trade organization, [def......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT