Judge Says J & J Cancer Lawsuit Can Move Forward

SIOUX FALLS, S.D. (AP) -- A federal judge has refused to dismiss a lawsuit alleging a woman's use of Johnson & Johnson products that contained talcum caused ovarian cancer, saying the suit was filed on the last allowable day.

U.S. District Judge Karen Schreier denied a motion by the company and other defendants, including mining company Luzenac America Inc., that claimed the suit was filed after the statute of limitations. Talc is a mined mineral that is used in talcum power.

The complaint alleges that research from 1988 to 1992 found that frequent application of talc-based powder in the genital area increases the risk of ovarian cancer. Johnson & Johnson failed to inform consumers of the risk as it promoted female use of talc-based products such as Shower to Shower and Johnson's Baby Powder, according to the lawsuit.

The lawsuit was filed by Sioux Falls resident Deane Berg, who was diagnosed with ovarian cancer in 2006. The lawsuit claims she used talcum-based products for hygiene purposes for about 30 years.

"This was an intended and foreseeable use of the defendants' products based on the advertising, marketing and labeling of the products by the defendants," the lawsuit said.

The American Cancer Society said studies of personal use of talcum powder and ovarian cancer have yielded inconsistent results.

"Findings are mixed, with some studies reporting a slightly increased risk and some reporting no association," the organization said on its website. "Only a small minority of women who have used talcum powder will ever develop ovarian cancer and it is impossible to say to what extent talc use had contributed to these cases."

Berg's attorney, R. Allen Smith Jr., did not return a message for comment Wednesday. He is affiliated with the Mississippi-based Talc Litigation Group, which claims on its website that the lawsuit is the first involving talc use and ovarian cancer.

Johnson & Johnson has not filed a formal answer to the lawsuit. Phone and e-mail messages to its attorneys were not returned Wednesday. Luzenac said it can't be held liable because it supplied a bulk raw material that met all safety standards when provided to a manufacturer. The judge earlier dismissed Luzenac America's parent company as a defendant.

The suit also names unidentified individuals and corporations as defendants.

Schreier ruled that the applicable three-year statute of limitations on suing began with Berg's cancer diagnosis on Dec. 26, 2006. The defendants said the deadline expired because the lawsuit effectively began when affidavits acknowledging they had been notified of the lawsuit were filed in court on Jan. 4, 2010.

But the judge said the lawsuit began when defendants acknowledged on Dec. 27, 2009 and Dec. 28, 2009 that they were being sued. That was within the three-year period since Dec. 26, 2009, fell on a Saturday so the deadline effectively was Monday, Dec. 28, Schreier said.

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