Justices Won’t Hear J&J Challenge To Miss. AG’s Talc Trial

The U.S. Supreme Court said it won’t hear Johnson & Johnson’s attempt to halt an upcoming trial in the Mississippi attorney general’s suit alleging the company failed to warn consumers of a possible link between its talcum powder and ovarian cancer.

In a brief order, the high court denied a petition for a writ of certiorari filed by J&J in August. Two justices recused themselves from the decision: Justice Samuel Alito, who has reported that he owns the company’s stock, and Justice Brett Kavanaugh, whose father previously headed the Personal Care Products Council, a cosmetics trade association that submitted an amicus brief on J&J’s behalf.

J&J had challenged an April opinion from the Mississippi Supreme Court, which found that Attorney General Lynn Fitch’s 7-year-old false advertising suit is not preempted by the U.S. Food and Drug Administration’s 2014 decision not to issue a warning label flagging reported cancer risks associated with the perineal use of talc.

The pharmaceutical and cosmetics giant had argued that the Mississippi high court ruling deepened “entrenched circuit splits” over whether federal agency actions must go through a notice-and-comment period in order to preempt state law.

The recent order is the second recent high court cert denial for J&J in its nationwide battle against a slew of talc liability claims. The justices declined in June to review a $2.1 billion verdict won by nearly two dozen ovarian cancer patients in Missouri, despite the company’s arguments that too many claims were combined in a single trial.

J&J is now seeking to pause the thousands of talc liability suits by spinning off its cosmetic talc unit into Chapter 11 bankruptcy. The move has met staunch opposition from talc claimants, who say the proceeding is designed to escape the jury trial system and insulate J&J from billions in liability.

LAW360: https://www.law360.com/articles/1448068/justices-won-t-hear-j-j-challenge-to-miss-ag-s-talc-trial

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