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September 27, 2018Download PDF

The "Other" Talc Litigation: The Third Circuit Weighs in on Article III Standing

On July 12, 2018, a Missouri jury awarded $4.7 billion to twenty-two women who were diagnosed with ovarian cancer after using Johnson & Johnson’s talc-based powder products. The headline-grabbing verdict is certain to generate additional litigation by consumers who have used talc-based products. But before the “dust” on that verdict has settled (as Johnson & Johnson intends to appeal), another talc lawsuit resulted in a Third Circuit Court of Appeals decision of constitutional dimensions.

Many of the talc lawsuits involve allegations that Johnson & Johnson’s talc-based products caused users to develop ovarian cancer. Here, the case is a little different. In In re Johnson & Johnson Talcum Powder Products Marketing, Sales Practices and Liability Litigation, the plaintiff sued Johnson & Johnson because she purchased its talc-based baby powder products. For nearly sixty years, she purchased and consumed the products without incident. In fact, the plaintiff did not claim that she developed ovarian cancer or that she had an increased risk of ovarian cancer from using the talc products. Instead, the plaintiff claimed she was harmed because she purchased talc products that the defendant manufactured – nothing more. In other words, she claimed that had she been aware of the propensity of the talc-based baby powder to cause ovarian cancer, she would not have purchased the products at all.

How did this case rise to a level of constitutional concern? The dispute involved a doctrine known as “Article III standing.” The standing doctrine comes from Article III, Section 2, Clause 1 of the United States Constitution, which grants the judicial branch the power to decide “Cases” or “Controversies.” In brief, the standing doctrine prevents litigants from suing in federal court to resolve a problem that is merely abstract or hypothetical with respect to the plaintiff’s rights. According to long-standing case law, an abstract or hypothetical problem is not a “case or controversy”; therefore the judicial branch lacks power to hear those issues. In this way, the standing doctrine maintains the separation of powers under the Constitution. Specifically, the doctrine limits the role of the judicial branch and prevents it from infringing the roles of the other branches. As a corollary, the standing doctrine has an important practical effect on who is entitled to sue in federal court.

At a minimum, standing requires a plaintiff in federal court to demonstrate an injury-in-fact, traceable to the defendant’s conduct, which is likely to be redressed by a favorable judicial decision. An injury-in-fact requires an actual or imminent invasion of the plaintiff’s particularized legal rights. In other words, to establish the injury-in-fact element of standing, a person’s rights (not the rights of someone else) must have already been violated or are in imminent danger of being violated. In In re Johnson & Johnson, the parties disputed whether the plaintiff suffered an injury-in-fact merely because she purchased talc products without knowing their propensity to cause ovarian cancer.

The trial court and the Third Circuit held that she did not have standing because she did not suffer an injury that would entitle her to judicial relief. The Third Circuit concluded that the plaintiff received exactly what she paid for – a talc-based baby powder product. It did not matter to the Third Circuit that the talc products were unsafe as to others. Because the Plaintiff did not allege she developed or faced an increased risk of ovarian cancer, the alleged injury was not particularized to her.

Judge Fuentes dissented from the majority’s conclusion. In breaking from the majority opinion, he asserted that a fundamental basis of the bargain between the plaintiff and Johnson & Johnson is that the talc products would be safe. According to Judge Fuentes, because the plaintiff paid money for a safe product but purchased a product that was, in fact, unsafe, she suffered an Article III injury. He compared the situation to an observant Jew who believes he or she is purchasing kosher meat that is, in fact, not kosher; or a consumer who purchases a lock labeled as “Made in U.S.A.” that, in fact, contains foreign parts. In those situations, the consumer would likely have standing, and Judge Fuentes argued the same reasoning should apply to the plaintiff who purchased safe talc products that were, in fact, unsafe.

The majority’s decision in In re Johnson & Johnson circumscribed a plaintiff’s ability to plead Article III standing in the Third Circuit. The court did, however, offer a roadmap for future plaintiffs to allege standing in cases involving an unmanifested risk of harm from a product. Lawyers and litigants should be aware of this decision – for both the pitfalls and opportunities it provides – before filing a complaint in the Third Circuit. And, of course, the vicissitudes of standing jurisprudence demonstrate that our constitutional republic is an ongoing experiment of which we are all a part.