Ashley Johnson blames her malignant epithelioid mesothelioma diagnosis on her use of Johnson & Johnson talc powder products. When she filed a lawsuit against the company and its subsidiary LTL management in Louisiana, she accused the companies of both a construction/composition defect and nonconformity to an express warranty, in addition to failure to warn and design defects. Though the district judge hearing the case granted Johnson & Johnson’s motion to dismiss one of the charges, she allowed the other charges to stand.
Mesothelioma Victim Used J&J Talc on Herself and Her Children
After years of “regular and prolonged” exposure to Johnson & Johnson talc powder products, Ashley Johnson was diagnosed with malignant epithelioid mesothelioma, a rare and deadly form of cancer. In filing claims against the company seeking compensation, she first sought to establish construction/composition defects, which requires the plaintiff to establish four elements: that the defendant is a manufacturer of the product; that their damage was caused by a characteristic of the product; that the characteristic made the product unreasonably dangerous; and that the plaintiff’s damage arose from a reasonably anticipated use of the product.”
Johnson & Johnson requested that the claims for construction/composition defect be dismissed because the mesothelioma victim had failed to provide proof to support her claim. Ms. Johnson conceded that they were correct, and that claim was dismissed. However, the same did not hold for her charge of nonconformity to express warranty.
Nonconformity to Express Warranty Mesothelioma Charge Survives Motion to Dismiss
The mesothelioma victim’s charge of nonconformity to express warranty fared better in court, as the judge noted that to maintain the claim she needed to show that the company had made an express warranty regarding their product; that she had been induced to use the product because of that warranty; that the product had failed to conform to that warranty; and that her damage was proximately caused because the warranty was untrue.
The judge noted that an express warranty goes beyond a general opinion or praise, and agreed with the mesothelioma victim that Johnson & Johnson had advertised that their product was “safe” and “pure” and that she had relied on those representations when she used it on herself and her children. Though the company argued that they had made no express warranty but had instead used generic marketing descriptions of product safety, Ms. Johnson presented ads that stated that the product went through a “strict 5-level safety process, ensuring every ingredient is safe for use,” as well as the terms “backed by science,” “clinically proven,” and “purity of its ingredients.” The court agreed with Ms. Johnson that these advertisements went beyond a “general opinion” or “general praise,” allowing the nonconformity of express warranty charge to stand.
If you or someone you love has been diagnosed with malignant mesothelioma or another asbestos-related disease, experienced guidance can make all the difference. The Patient Advocates at Mesothelioma.net are here to provide you with the resources you need. Call us today at 1-800-692-8608.
