Blaes v. Johnson & Johnson
71 F. Supp. 3d 944
E.D. Mo.2014Background
- Ms. Blaes was diagnosed with ovarian cancer in October 2008 and died January 12, 2011.
- Plaintiff alleges Ms. Blaes used Johnson & Johnson Baby Powder and Shower to Shower on her perineal area from 1972 to 2011 and that these products caused her cancer.
- Plaintiff sued Johnson & Johnson entities, Imerys Talc America, Inc. (f/k/a Luzenac America, Inc.), Personal Care Products Council, Walgreens Co., and Schnucks entities.
- Plaintiff asserted claims for strict liability failure to warn, negligence, breach of express warranties, breach of implied warranties, conspiracy, and concert of action.
- The court granted voluntary dismissals of Schnucks and Walgreens and dismissed Personal Care Products Council without prejudice; later, the motions to dismiss conspiracy and concert-of-action claims were addressed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conspiracy existence and pleading adequacy | Plaintiff alleges two or more defendants acted with a common unlawful objective and took overt steps to further it. | Plaintiff fails to identify specific defendants and their roles; fraud-like allegations lack Rule 9(b) particularity. | Conspiracy pleaded with particular actions; elements met; deny motion to dismiss. |
| Concert of action viability in product liability context | Concert of action exists as a theory where parties cooperate or ratify acts to commit torts. | Zafft and related authorities foreclose concert of action as a separate theory in Missouri product liability; only conspiracy remains viable. | Concert of action dismissed as a matter of law. |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- U.S. ex rel. Costner v. URS Consultants, Inc., 317 F.3d 883 (8th Cir. 2003) (Rule 9(b) particularity for fraud claims)
- Joshi v. St. Luke’s Hosp., Inc., 441 F.3d 552 (8th Cir. 2006) (Rule 9(b) particularity requirements)
- Zafft v. Eli Lilly & Co., 676 S.W.2d 241 (Mo. 1984) (concert of action as part of conspiracy; Missouri view)
- Anderson v. Douglas Cnty., 4 F.3d 574 (8th Cir. 1993) (conspiracy requires explicit concerted action)