Johnson & Johnson wants its day in court to fight a lawsuit intended to force it to put a cancer warning on the company’s Baby Powder. So, it’s urging a judge not to let a law firm that’s been arguing for the warning to suddenly drop the lawsuit.

It’s an unusual twist for a defendant not to go along with plaintiffs who want their case dismissed. But it’s being fought because J&J doesn’t want to give the Lanier Law Firm a chance to refile the suit with more defendants.

J&J says it expects to win a decision that its talc products, including Baby Powder, don’t need a warning label under California’s Proposition 65 law, which requires it for products that contain known carcinogens. A hearing on the dismissal request is scheduled Monday in Los Angeles federal court.

Texas lawyer W. Mark Lanier has been one of J&J’s most formidable adversaries in bringing lawsuits on behalf of people who claim Baby Powder can cause ovarian cancer. Last year, Lanier won a $4.69 billion jury verdict in a Missouri state court on behalf of 22 women and their families who blamed their illnesses on the presence of asbestos in J&J’s talc products.

The New Brunswick, New Jersey-based health care conglomerate faces more than 14,000 lawsuits accusing it of hiding the health risks of Baby Powder for more than 40 years to protect one of its best-known brands. The U.S. Justice Department is also pursuing a criminal investigation into whether the company lied to the public about possible cancer risks, according to people familiar with the matter.

J&J insists its talc products are safe and that numerous scientific tests, including those done by the U.S. Food and Drug Administration, have shown that they aren’t contaminated with asbestos.

The California Prop. 65 lawsuit was an attempt to tip the scales in the other Baby Powder cases, the company said.

“The Lanier Law Firm commenced this action as a transparent tactical maneuver to improve their litigation position in personal-injury actions that they have pending against defendants across the country,” J&J said in a July 8 filing opposing the dismissal request. “They saw Proposition 65 as a potential vehicle to obtain a court-ordered cancer warning on defendants’ talcum powder products.”

The company argues that Lanier’s firm wants to walk away from the case to avoid an adverse ruling. According to J&J, it’s likely that it will win because quarterly tests by an outside laboratory have found no asbestos in its talc supply. In addition, the company says, the disputed amount of asbestos the plaintiffs’ expert found in Baby Powder would only result in potential exposure from inhalation well within California’s safety guidelines.

If U.S. District Judge George Wu denies Lanier’s request, and if he doesn’t decide himself that based on the evidence J&J’s Baby Powder doesn’t need a cancer warning, the case could head for a jury trial in October.

“In general, Prop. 65 defendants contesting dismissals are rare,” said Robert Falk, an attorney with Morrison and Foerster LLP in San Francisco who isn’t involved in the case. “Defendants having a high level of confidence that they will prevail on a Prop. 65 claim by means of either summary judgment or, if necessary, a trial are not” rare.

California’s Proposition 65, a 1986 voter-approved initiative, requires that manufacturers and retailers disclose the presence of carcinogens in their products or pay a $2,500 fine per violation. The law has created a cottage industry for lawyers who sue to enforce it, usually without anyone claiming to have suffered an injury from the lack of disclosure. The cases are usually settled for relatively little money, most of which ends up with the lawyers.

The Prop. 65 lawsuit filed last year against J&J in California state court was different because it included seven named plaintiffs who either are suffering from ovarian cancer or represent individuals who died from it.

Individual Claims

Because the lawsuit included individual damage claims, J&J was allowed to move the case to federal court where, unlike in state court, a plaintiff needs a unanimous jury verdict to win.

According to J&J, four of the five plaintiffs it was able to question under oath didn’t even know they were part of a lawsuit.

The Lanier Firm said in its request for dismissal that “Shower to Shower,” one of the products it claims needs a cancer warning, is now sold by Valeant Pharmaceuticals’ North American unit. It wants to bring a new lawsuit to include Valeant as a defendant, and possibly Claire’s Store Inc. The FDA earlier this year said that some of Claire’s products tested positively for asbestos.

The law firm denied J&J’s allegation that it’s request to the dismiss the case was a “tactical maneuver.”

“We believe Valeant is a necessary party to the litigation and
J&J refuses to allow us to add them into the current suit,” Lanier said. “We believe firmly that J&J has asbestos in its talc. Our position on that hasn’t changed.”

The case is Luna v. Johnson & Johnson, 18-cv-04830, U.S. District Court, Central District of California (Los Angeles).

–With assistance from Jef Feeley.