This case was last updated from Santa Clara County Superior Courts on 08/14/2019 at 07:58:08 (UTC).

Musgrave v. Johnson & Johnson, et al.

Case Summary

On 01/16/2018 Musgrave filed a Personal Injury - Other Product Liability lawsuit against Johnson Johnson. This case was filed in Santa Clara County Superior Courts, Downtown Superior Court located in Santa Clara, California. The Judge overseeing this case is Walsh, Brian C. The case status is Other - Stayed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******1873

  • Filing Date:

    01/16/2018

  • Case Status:

    Other - Stayed

  • Case Type:

    Personal Injury - Other Product Liability

  • Court:

    Santa Clara County Superior Courts

  • Courthouse:

    Downtown Superior Court

  • County, State:

    Santa Clara, California

Judge Details

Judge

Walsh, Brian C

 

Party Details

Plaintiff

Musgrave, Edward M.

Defendants

Imerys Talc America, Inc. f/k/a Luzenac America, Inc.

Johnson & Johnson Consumer Companies, Inc.

Johnson & Johnson

Decedent

Musgrave, Brenda Gayle

Other

Superior Court of California

Attorney/Law Firm Details

Decedent and Plaintiff Attorney

Zukin, Helen E

Other Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Notice

Musgrave Notice of Order1.pdf: Comment: Notice of Court Order Re Coordination of Potential Add-On Cases

Proof of Service: Mail

Proof of Service Mail:

Notice

Civil Lawsuit Notice: ADR CV-5003: Comment: Civil Lawsuit Notice (1st CMC set for 5/11/18 at 10am in D1; assigned to Hon. Brian C. Walsh)

Order

Order Staying Action Due to Pending Coordination Proceedings: Comment: Order Staying Action Due to Pending Coordination Proceedings signed/BCW

Notice

Musgrave Notice of Submission.pdf: Comment: Notice of Submission of Potential Add-On Cases for Coordination of this Case Into JCCP 4872

Order: Deeming Case Complex

Order Deeming Case Complex & Staying Discovery: Comment: and Staying Discovery and Responsive Pleading Deadline signed/BCW

Notice

Civil Lawsuit Notice: ADR CV-5003: Comment: Civil Lawsuit Notice (1st CMC set for 5/11/18 at 10am in D1; assigned to Hon. Brian C. Walsh)

Affidavit

Musgrave declaration.pdf: Comment: Declaration of Edward Musgrave as Successor-in-Interest

Civil Case Cover Sheet

Musgrave civil case cover sheet.pdf: Comment: COMPLEX

Summons: Issued/Filed

Summons Issued Filed:

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies):

 

Docket Entries

  • 05/11/2018
  • Conference: Case Management - Judicial Officer: Walsh, Brian C; Hearing Time: 10:00 AM; Cancel Reason: Vacated; Comment: (1st CMC) Discovery stayed and responsive pleading deadline stayed, as of 1/17/18, when the case was deemed complex.

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  • 03/28/2018
  • View Court Documents
  • Notice - Musgrave Notice of Order1.pdf: Comment: Notice of Court Order Re Coordination of Potential Add-On Cases

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  • 03/09/2018
  • Proof of Service: Summons DLR (Civil) - Comment: Proof of Service of Summons/Complaint

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  • 03/09/2018
  • Proof of Service: Summons DLR (Civil) - Comment: Proof of Service of Summons/Complaint

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  • 03/09/2018
  • Proof of Service: Summons DLR (Civil) - Comment: Proof of Service of Summons/Complaint

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  • 03/08/2018
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  • Proof of Service: Mail - Proof of Service Mail:

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  • 02/28/2018
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  • Order - Order Staying Action Due to Pending Coordination Proceedings: Comment: Order Staying Action Due to Pending Coordination Proceedings signed/BCW

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  • 02/28/2018
  • View Court Documents
  • Notice - Musgrave Notice of Submission.pdf: Comment: Notice of Submission of Potential Add-On Cases for Coordination of this Case Into JCCP 4872

    Read MoreRead Less
  • 01/17/2018
  • View Court Documents
  • Order: Deeming Case Complex - Order Deeming Case Complex & Staying Discovery: Comment: and Staying Discovery and Responsive Pleading Deadline signed/BCW

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  • 01/17/2018
  • View Court Documents
  • Notice - Civil Lawsuit Notice: ADR CV-5003: Comment: Civil Lawsuit Notice (1st CMC set for 5/11/18 at 10am in D1; assigned to Hon. Brian C. Walsh)

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  • 01/16/2018
  • View Court Documents
  • Affidavit - Musgrave declaration.pdf: Comment: Declaration of Edward Musgrave as Successor-in-Interest

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  • 01/16/2018
  • View Court Documents
  • Civil Case Cover Sheet - Musgrave civil case cover sheet.pdf: Comment: COMPLEX

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  • 01/16/2018
  • View Court Documents
  • Summons: Issued/Filed - Summons Issued Filed:

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  • 01/16/2018
  • View Court Documents
  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies):

    Read MoreRead Less
  • 01/16/2018
  • Summons: Issued/Filed

    Read MoreRead Less
  • 01/16/2018
  • Complaint (Unlimited) (Fee Applies)

    Read MoreRead Less
  • 01/16/2018
  • Civil Case Cover Sheet

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Complaint Information

Helen Zukin, State Bar No. 117933 Zukin@ kiesel.law

Melanie Meneses Palmer, State Bar No. 286752 palmer@ kiesel.law

Cherisse H. Cleofe, State Bar No. 290152 cleofe@ kiesel.law

KIESEL LAW LLP

8048 Wilshire Boulevard

Beverly Hills, California 90211-2910

Tel: 310-854-4444

Fax: 310-854-0812

Raymond P. Boucher, State Bar No. 115364 ray@ boucher.la

Shehnaz Bhujwala, State Bar No. 223484 bhujwala@ boucher.la

BOUCHER LLP

21600 Oxnard Street, Suite 600

Woodland Hills, California 91367

Tel: 818-340-5400

Fax: 818-340-5401

Attorneys for Plaintiff

E-FILED

1/16/2018 4:02 PM Clerk of Court

Superior Court of CA, County of Santa Clara

18CV321873

Reviewed By: R. Walker

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA

EDWARD M. MUSGRAVE, Individually and as Successor-In-Interest of Decedent BRENDA GAYLE MUSGRAVE,

Plaintiff, V.

JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER COMPANIES, INC.; IMERY S TALC AMERICA, INC. f/k/a LUZENAC AMERICA, INC.; and DOES 1 through 100, inclusive,

D efendants.

Case No. 18C V32 1873

COMPLAINT FOR DAMAGES

1. STRICT PRODUCTS LIABILITY -

FAILURE TO WARN

2, STRICT PRODUCTS LIABILITY -

DESIGN DEFECT

3. NEGLIGENCE

4, NEGLIGENT

MISREPRESENTATION

5. BREACH OF EXPRESS

WARRANTY

6. BREACH OF IMPLIED

WARRANTY

7.DECEIT BY CONCEALMENT -

CALIFORNIA CIVIL CODE §§

1709, 1710

8. FRAUD

9. WRONGFUL DEATH Plaintiff EDWARD M. MUSGRAVE (hereinafter “PLAINTIFF”) brings this action on behalf of himself and as successor in interest of the estate of Decedent BRENDA GAY LE MUSGRAVE (hereinafter “DECEDENT"), alleges the following facts and claims for relief against JOHNSON & JOHNSON; JOHNSON & JOHNSON CONSUMER COMPANIES, INC.; IMERYS TALC AMERICA, INC. f/k/a LUZENAC AMERICA, INC.; and DOES 1 through 100, inclusive, (collectively referred to herein as “DEFENDANTS”), and requests a trial by jury of all issues and causes of action so triable:

INTRODUCTION

1. PLAINTIFF brings this products liability case against DEFENDANTS because DECEDENT developed ovarian cancer and was fatally injured from her use of talc-based products manufactured, designed, marketed, promoted, labeled, tested, distributed, and/or sold by DEFENDANTS, and each of them. DEFENDANTS, and each of them, substantially contributed to the manufacture, design, distribution, promotion, marketing, labeling, testing, and selling of the talc- based products used by PLAINTIFF, including but not limited to JOHNSON & JOHNSON's ® Baby Powderand Showerto Shower (referred to herein as the “PRODUCTS”). Each DEFENDANT is, and, at all relevant times herein was, a participant and/or entity in the chain of distribution for these PRODUCTS.

PARTIES

2. PLAINTIFF is, and at all times herein mentioned was, a citizen and resident of Contra Costa County, California. PLAINTIFF is the surviving husband of DECEDENT. PLAINTIFF brings this action in his individual capacity for his claim of wrongful death pursuant to California Code of Civil Procedure section 377.60(a) and as the DECEDENT'S successor in interest for all survival claims pursuant to California Code of Civil Procedure sections 377.10 et seq. Beginning in or about 1985 through approximately 1999, DECEDENT purchased the PRODUCTS and used the PRODUCTS all over her body including her perineal area for feminine hygiene purposes, and was thereby exposed to the talc ingredient contained therein, on a daily basis during this time period. Atall times relevant hereto, DECEDENT purchased the PRODUCTS and used the PRODUCT'S pursuant to

the instructions for use that accompanied the PRODUCTS in a reasonably foreseeable manner. In approximately January 1999, at the age of forty (40), DECEDENT was diagnosed with ovarian cancer. DECEDENT developed ovarian cancer, and suffered the effects attendant thereto, as a direct and proximate resultPRODUCTS developed, manufactured, designed, marketed, labeled, promoted, tested, distributed, and/or sold by DEFENDANTS. At the time of her passing, DECEDENT was unaware of and/or not informed of any risk(s) of using the PRODUCTS. DECEDENT passed away from ovarian cancer on April 29, 1999.

3. DefendantJOHNSON & JOHNSON is a corporation organized and existing under the laws of the State of New Jersey with its principal place of business in the State of New Jersey.

4, PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times Defendant JOHNSON & JOHNSON maintains several office locations within the State of Califomnia, and has approximately 127,100 employees worldwide. As stated in JOHNSON & JOHNSON's Form 10-K Annual Report Pursuant to Section 13 of the Securities Exchange A ct of 1934 forthe fiscal year ended January 3, 2016, JOHNSON & JOHNSON's primary focus is on products related to human health and well-being.

5. Defendant JOHNSON & JOHNSON was and is authorized to do business in the State of California and was and is engaged in substantial, systematic, and continuous business activities in California.

0. Defendant JOHNSON & JOHNSON is engaged in the business of designing, developing, manufacturing, testing, promoting and selling talc-based PRODUCTS, including the PRODUCTS used by DECEDENT, and derives substantial revenue from such sales in the State of California.

7. At all relevant times herein, Defendant JOHNSON & JOHNSON designed, manufactured, marketed, promoted, tested, distributed, and sold talc-based PRODUCT'S to the general public, including DECEDENT.

8. Defendant JOHNSON & JOHNSON CONSUMER COMPANIES, INC. (hereinafter “1&J] CONSUMER?”) is a corporation organized and existing under the laws of the State of New Jersey with its principal place of business in the State of New Jersey.

9. Uponinformation and belief, Defendant J&] CONSUMER is, and at all relevant times herein was, a wholly owned subsidiary of Defendant JOHNSON & JOHNSON.

10. Defendant ]&] CONSUMER was and is authorized to do business in the State of California and was and is engaged in substantial business activities in California.

11. Defendant J&] CONSUMER is engaged in the business of designing, developing, manufacturing, testing, promoting, and selling talc-based products, including the PRODUCT'S used by DECEDENT, and derives substantial revenue from such sales in the State of California.

12. At all relevant times herein, Defendant J&] CONSUMER designed, manufactured, marketed, promoted, tested, distributed, and sold talc-based products to the general public, including DECEDENT.

13. Defendant IMERY S TALC AMERICA, INC. f/k/a LUZENAC AMERICA, INC. (hereinafter “IMERY STALC”) is a corporation organized and existing under the laws of the State of Delaware with its principal place of business in the State of California.

14. PLAINTIFF is informed and believes, and based thereon allege, that at all relevant times, Defendant IMERY S TALC is the successor or continuation of LUZENAC AMERICA, INC,, and Defendant IMERY S TA LC islegally responsible forall liabilities incurred when it was known as LUZENAC AMERICA, INC.

15. Defendant IMERY S TALC is, and at all relevant times herein was, engaged in the business of mining, producing, supplying, and distributing talcum powder for use in talc-based products, including the PRODUCTS used by DECEDENT.

16. According to its website, IMERY S TALC is “the world’s leading talc producer” for talc-based PRODUCTS.

17. Defendant IMERY S TALC was and is authorized to do business in the State of California and was and is engaged in substantial business activities in California.

18. DefendantIMERY S TALC derives substantial revenue from the PRODUCTS it sells, including talcum used in DEFENDANTS’ talc-based products.

! See http://www.imerystalc.com/content/corporate/About Imerys Talc/Who are we./Overview/ (last accessed June 7, 2016). 19. Uponinformation and belief, Defendant IMERY S TA L.C mined, produced, distributed and/or supplied the talcum powder utilized in the PRODUCTS used by DECEDENT.

20. PLAINTIFF isignorant of the true names and capacities of defendants sued herein as Does 1 through 100 and therefore sue these defendants by such fictitious names pursuant to California Code of Civil Procedure section 474. PLAINTIFF is informed and believes, and upon such information and belief alleges, that each of the defendants designated as a Doe are legally responsible in some manner for the events and happenings and caused damages, as alleged herein. PLAINTIFF will seek leave of the Court to amend this Complaint to show the true names and capacities of the defendants, designated as Does, when the same has been ascertained.

JURISDICTION AND VENUE

21. Venueis properin this Court because PLAINTIFF isinformed and believes, and based thereon alleges that, at all relevant times, Defendant, IMERYS TALC AMERICA, INC,, is a Delaware corporation, with its principal place of business in San Jose, California in the County of Santa Clara. Specifically, IMERYS TALC AMERICA, INC. maintains its Head Office and Laboratory at 1732 North First Street, Suite 450, San Jose, California 95112.

22. PLAINTIFF is a citizen and resident of Contra Costa County, California. Moreover, DECEDENT was a citizen of California, up to and until the date of her passing, DECEDENT purchased and used the PRODUCTS in California, and was thereby exposed to the talc ingredient in the PRODUCTS that caused her injuries in California.

23. The California Superior Court has jurisdiction overall DEFENDANT'S because, based on information and belief, each is a corporation and/or entity and/or person organized under the laws of or having its principal place of business in the State of California, a foreign corporation or association authorized to do business in California and registered with the California Secretary of State, or that has sufficient minimum contacts in California, is a citizen of California, or otherwise intentionally avails itself of the California market so as to render the exercise of jurisdiction overit by the California courts consistent with traditional notions of fair play and substantial justice.

24. Further, DEFENDANTS have each purposefully availed themselves of the benefits and protections of the laws within the State of California. Collectively, DEFENDANTS conduct substantial, continuous, and systemic business in California and have had sufficient contact with California such that the exercise of jurisdiction would be consistent with the traditional notions of fair play and substantial justice.

FACTUAL ALLEGATIONS

25. The PRODUCTS that are the subject of this action contain talc, also known as magnesium trisilicate. Talc is an inorganic mineral that is mined from the earth. Talc is the main ingredient contained in the PRODUCTS used by DECEDENT, as the PRODUCTS are composed almost entirely of talc.

26. PLAINTIFFisinformed and believes, and thereon alleges, that historically, Johnson's Baby Powder has been a symbol of freshness, cleanliness, and purity.

27. PLAINTIFF is informed and believes, and thereon alleges, that DEFENDANTS advertised and marketed the product Shower to Shower as safe for use by women, including

DECEDENT as evidenced in its slogans and advertisements:

a. “A sprinkle a day keeps odor away;”

b. “Y our body perspires in more places than just under yourarms. Use SHOWER to SHOWER to feel dry, fresh, and comfortable throughout the day;” and

C. “SHOWER to SHOWER can be used all over your body.”

28. DECEDENT used the PRODUCTS for feminine hygiene purposes. This was an intended and foreseeable use of the PRODUCTS based on the advertising, marketing, and labeling of the PRODUCTS.

29. PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times alleged herein, a feasible alternative to the PRODUCTS has existed. PLAINTIFF is informed and believes, and thereon alleges, that cornstarch is an organic carbohydrate that is quickly broken down by the body with no known health effects. In fact, cornstarch powders have been sold and marketed for the same uses with nearly the same effectiveness.

30. PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times alleged herein, DEFENDA NTS have continually advertised and marketed talc as safe for human use.

31. PLAINTIFF is informed and believe, and based thereon allege that, at all relevant times, Defendant IMERY S TA LC supplied customers with M aterial Safety Data Sheets (“MSDS”) for talc. These MSD Ss are supposed to convey adequate health and warning information to its customers. Numerous Studies Have Found that Talc- and Talcum Powder-Based PRODUCTS Increase the Risk of Ovarian Cancer

32. PLAINTIFF isinformed and believes, and thereon alleges, thatin 1971, Dr. Henderson in Cardiff, Wales, conducted the first study connecting the use of talc and talc-based products with ovarian cancer. Dr. Henderson’s study showed an association between talc and ovarian cancer.

33. PLAINTIFF is informed and believes, and thereon alleges, that in 1982, an epidemiological study was conducted and published by Dr. Daniel Cramer, et al. This study found a 92% increased risk of ovarian cancer in women who reported perineal talc use. Shortly thereafter, Dr. Cramer met with Dr. Bruce Semple from JOHNSON & JOHNSON. Dr. Cramer recommended that JOHNSON & JOHNSON should place a warning to consumers on its talc-powder PRODUCTS and talc-based PRODUCT'S about the increased risks of ovarian cancer.

34. PLAINTIFF isinformed and believes, and thereon alleges, that since 1982 there have been approximately twenty-two additional epidemiologic studies providing data regarding the association of talc and ovarian cancer. Nearly all of these studies have reported an elevated risk for ovarian cancer associated with perineal talc use in women.

35. PLAINTIFF is informed and believes, and thereon alleges, that in 1992, a comprehensive study was published in Obstetrics & Gynecology that concluded there was a statistically significant threefold increased risk of ovarian cancer in women who use talc-based PRODUCTS, including talc-based baby powders, to dust their perineal area during ovulation.

36. PLAINTIFF is informed and believes, and thereon alleges, that in 1993, the United States National Toxicology Program published a study on the toxicity of non-asbestiform talc and found clear evidence of carcinogenic activity. Talc was found to be a carcinogen, with or without the presence of asbestos-like fibers. In response to the United States National Toxicology Program’s study, the Cosmetic Toiletry and Fragrance A ssociation (CTFA) formed the Talc Interested Party Task Force (TIPTF). JOHNSON & JOHNSON, J & ] CONSUMER, and LUZENAC AMERICA, INC. were members of the CTFA and were the primary actors and contributors of the TIPTF. The stated purpose of the TIPTF was to pool financial resources of these companies in an effort to collectively defend talc use at all costs and to prevent regulation of any type over this industry. The TIPTF hired scientists to perform biased research regarding the safety of talc, members of the TIPTF edited scientific reports of the scientists hired by this group prior the submission of these scientific reports to governmental agencies, members of the TIPTF knowingly released false information about the safety of talc to the consuming public, and used political and economic influence on regulatory bodies regarding talc. All of these activities have been well coordinated and planned by these companies and organizations over the past four (4) decades in an effort to prevent regulation of talc and to create confusion to the consuming public about the true hazards of talc relative to ovarian cancer.

37. PLAINTIFF isinformed and believes, and thereon alleges, that on November 10, 1994, the Cancer Prevention Coalition mailed a letter to then Johnson & Johnson C.E.O, Ralph Larson, informing his company that studies as far back as 1960s “. . . show|[ ] conclusively that the frequent use of talcum powder in the genital area pose| | a serious health risk of ovarian cancer.” The letter cited a recent study by Dr. Bernard Harlow from Harvard Medical School confirming this fact and quoted a portion of the study where Dr. Harlow and his colleagues discouraged the use of talc in the female genital area. The letter further stated that 14,000 women per year die from ovarian cancer and that this type of canceris very difficult to detect and has a low survival rate. The letter concluded by requesting that Johnson & Johnson withdraw talc PRODUCTS from the market because of the alternative of cornstarch powders, orat a minimum, place warning information on its talc-based body powders about ovarian cancer risk they pose.

38. PLAINTIFF is informed and believes, and thereon alleges, that in 1996, the condom industry stopped dusting condoms with talc due to the health concerns of ovarian cancer.

39. PLAINTIFF isinformed and believes, and thereon alleges, thatin 2000, a prospective study published in the Journal of the National Cancer Institute found a 40% increased risk of cancerin women who applied talcum powder on their perineum.

40. In 2003, ameta-analysis was conducted which pooled data from 16 studies, and found

a 33% increased risk of ovarian cancer in talc and talcum powder users. 41. PLAINTIFF is informed and believes, and thereon alleges, that in February of 2006, the International A ssociation forthe Research of Cancer (“IARC”) of the World Health Organization published a paper whereby they classified perineal use of talc based body powder as a “Group 2B” human carcinogen. IARC, which is universally accepted as the international authority on cancer issues, concluded that studies from around the world consistently found an increased risk of ovarian cancer in women from perineal use of talc. IARC found that between 16-52% of women in the world were using talc to dust their perineum and found an increased risk of ovarian cancer in women talc users ranging from 30-60%. TARC concluded with this “Evaluation”: “There is limited evidence in humans for the carcinogenicity of perineal use of talc-based body powder.” By definition “Limited evidence of carcinogenicity” means “a positive association has been observed between exposure to the agent and cancer for which a causal interpretation is considered by the W orking Group to be credible, but chance, bias or confounding could not be ruled out with reasonable confidence.”

42. Inapproximately 2006, the Canadian government under The Hazardous PRODUCTS Act and associated Controlled PRODUCTS Regulations classified talc as a “D2A,” “very toxic,” “cancer causing” substance under its Workplace Hazardous Materials Information System (“WHMIS”). Asbestos is also classified as “D2A”.

43. Nearly all of the numerous epidemiologic studies performed that evaluated the association of talc and ovarian cancer have reported an increased risk of ovarian cancer caused by perineal talc use in women.

44, DEFENDANTS had a duty to know and warn about the hazards associated with the use of the talc-based PRODUCTS used by DECEDENT.

Defendants Knew that Talc- and Talcum Powder-Based PRODUCTS Cause Ovarian Cancer

45. Based on the epidemiologic studies cited above regarding the association between talc and ovarian cancer, DEFENDANTS knew, orreasonably should have known, that the use of the talc- based products, including the PRODUCTS used by DECEDENT, for feminine hygiene purposes increased the risk of ovarian cancer.

46. Moreover, PLAINTIFF isinformed and believes, and thereon alleges, thatin 1994, the Cancer Prevention Coalition notified the CEO of JOHNSON & JOHNSON that the studies evaluating talcum powder use conclusively show that the frequent use of talcum powderin the genital area poses a serious health risk of ovarian cancer. This letter cited the difficulties in detecting ovarian cancer and low survival rate, and urged JOHNSON & JOHNSON to remove their talc and talcum powder-based PRODUCTS from the market because of the safer alternative (comstarch-based powders), or alternatively, to place a warning to potential consumers on their talc-based PROD UCTS regarding the increased risks of ovarian cancer.

47. PLAINTIFF is informed and believes, and thereon alleges, that in 2006, Defendant IMERY S TALC began placing a warning on the MSDS it provided to Defendants JOHNSON & JOHNSON and J & ] CONSUMER regarding the talc it sold to them to be used in the PRODUCTS. These MSDSs not only provided the warning information about the IJARC classification but also included warning information regarding “States Rights to Know” and warning information about the Canadian Government's “D2A” classification of talc as well.

43. PLAINTIFF isinformed and believes, and thereon alleges, that DEFENDANT'S knew about these adverse side effects, yet, without further testing and without including any warning, began marketing and selling their talc-based PRODUCTS to the general public, including PLAINTIFF.

Defendants Concealed the Risks of Talc-Based PRODUCTS and Misrepresented the Safety of These PRODUCTS

49. PLAINTIFF is informed and believes, and thereon alleges, that prior to the time DECEDENT used DEFENDANTS’ talc-based PRODUCTS, DEFENDANTS, and each of them, knew through pre-market studies and post-marketing studies and reports that the use of talc-based PRODUCTS were associated with a significant, increased risk of ovarian cancer in women who use the PRODUCTS for feminine hygiene purposes. Nonetheless, DEFENDANTS took no action to properly study their talc-based PRODUCTS, which would have reflected that risk. DEFENDANTS, and each of them, failed to adequately warn or remedy the risks, but instead concealed, suppressed, and failed to disclose the dangers.

50. PLAINTIFF isinformed and believes, and thereon alleges, that DEFENDANTS, and each of them, knew and/or should have known that the talc-based PRODUCTS presented an unreasonable and hazardous risk.

51. PLAINTIFF isinformed and believes, and thereon alleges, that DEFENDA NTS failed to inform its customers and end users, including PLAINTIFF and DECEDENT, of a known catastrophic health hazard associated with the use of their talc-based PRODUCTS.

52. PLAINTIFF is informed and believes, and thereon alleges, that DEFENDANTS procured and disseminated false, misleading, and biased information regarding the safety of their PRODUCTS to the public and used influence over governmental and regulatory bodies regarding talc.

53. PLAINTIFF is informed and believes, and thereon alleges, that despite knowing that their talc-based PRODUCTS caused ovarian cancer, DEFENDANTS, and each of them, actively marketed and promoted their talc-based PRODUCTS to women, including DECEDENT, for feminine hygiene purposes. Indeed, at all relevant times herein, DEFENDA NTS marketed and promoted their talc-based PRODUCTS as products for freshness, cleanliness, and comfort. Further, the labeling on Johnson’s Baby Powder specifically states its intended use for women: “For you, use anytime you want skin to feel soft, fresh, and comfortable.”

54. Asadirect and proximate result of the DEFENDANTS’ calculated and reprehensible conduct, PLAINTIFF and DECEDENT were injured and suffered damages because DECEDENT developed ovarian cancer, which required substantial treatments, caused her to suffer physical injuries, pain and suffering, extreme mental and physical anguish, and ultimately caused her death.

TOLLING STATUTES OF LIMITATIONS AND PUNITIVE DAMAGES

55. PLAINTIFF re-alleges each and every previous paragraph and incorporates them herein by reference as though set forth in full.

56. Thedelayed discovery rule applies to toll the running of the statute of limitations until PLAINTIFF knew, orthrough the exercise of reasonable care and diligence, should have known of the existence of claims against all DEFENDANTS. The nature of injuries to PLAINTIFF and DECEDENT, subsequent damages, and their causal relationship to DECEDENT"s use of the talc-

% See https://www.johnsonsbaby.com/powder/johnsons-baby-powder#how-amp-when-to-use_(last accessed October 3, 2010). based PRODUCTS were not and could not have been discovered through reasonable care and diligence.

57. Furthermore, the running of any statute of limitations has been equitably tolled by reason of DEFENDANTS' fraudulent concealment and conduct. Through their affirmative misrepresentations and omissions, DEFENDANTS actively concealed from PLAINTIFF and DECEDENT the true risks associated with their talc-based PRODUCTS.

58. Asaresultof DEFENDANTS’ actions, PLAINTIFF, DECEDENT, and DECEDENT’s physicians were unaware, and could not reasonably know or have learned through reasonable diligence that DECEDENT had been exposed to the risks alleged herein and that those risks were the direct and proximate result of DEFENDANTS’ acts and omissions.

59. DEFENDANTS are estopped from relying on any statute of limitations because of their concealment of the truth, quality, and nature of their talc-based PRODUCTS. DEFENDANTS were under a duty to disclose the true character, quality, and nature of the PRODUCTS because this was non-public information which DEFENDANTS had and continue to have exclusive control, and because DEFENDANT'S knew that this information was not available to PLAINTIFF or DECEDENT.

60. DEFENDANTS had the ability to and did spend enormous amounts of money in furtherance of their purpose of marketing and promoting the profitable talc-based PRODUCTS, notwithstanding the known or reasonably known risks. PLAINTIFF, DECEDENT, and medical professionals could not have afforded and could not have possibly conducted studies to determine the nature, extent and identity of related health risks, and were forced to rely on DEFENDANTS’ representations.

ol. In representations to PLAINTIFF, DECEDENT, and the public in general, DEFENDANTS also fraudulently concealed and intentionally omitted the following material information:

a. that the PRODUCTS were not as safe as other PRODUCTS available; b. that the PRODUCTS were dangerous; and C. that the PRODUCTS were defectively and negligently designed and had

defective, inadequate, and insufficient warnings and instructions. 62. DEFENDANTS were under a duty to disclose to PLAINTIFF, DECEDENT, and the public in general, the defective nature of the PRODUCTS. Nonetheless, DEFENDANTS made the misrepresentations and actively concealed information concerning the safety and efficacy of the PRODUCTS with the intention and specific desire to induce the consumers, including DECEDENT, to rely on such misrepresentations in selecting, purchasing, and using the PRODUCTS.

63. DEFENDANTS made these misrepresentations and actively concealed information concerning the safety and efficacy of the PRODUCTS in the labeling, advertising, promotional material, or other marketing efforts. These representations, and others made by DEFENDANTS, were false when made and/or were made with the pretense of actual knowledge when such knowledge did not actually exist, and were made recklessly and without regard to the true facts.

64. The misrepresentations and active concealments by DEFENDANTS were perpetuated directly and indirectly by DEFENDA NTS, their sales representative, employees, distributors, agents, marketers, and detail persons.

0. DEFENDANTS knew that PLAINTIFF, DECEDENT, and the public in general, had no way to determine the truth behind DEFENDANTS’ concealment and omissions, and that these included material omissions of facts surrounding the PRODUCTS, as set forth herein. Had DECEDENT known the true facts about the dangers and serious health and/or safety risks of the PRODUCTS, DECEDENT would not have purchased, used, or relied on DEFENDANTS’ PRODUCTS.

66. DEFENDANTS had a duty when disseminating information to the public to disseminate truthful information and a parallel duty not to deceive the public, PLAINTIFF, and DECEDENT.

67. The information distributed to the public, PLAINTIFF, and DECEDENT by DEFENDANTS included, but was not limited to, reports, press releases, advertising campaigns, television commercials, print advertisements, billboards, and other commercial media containing material representations, which were false and misleading, contained omissions, and concealed the truth about the dangers of the use of their talc-based PRODUCTS.

68. DEFENDANTS intentionally made material misrepresentations to the medical community and public, including PLAINTIFF and DECEDENT, regarding the safety of their PRODUCTS, specifically that the PRODUCTS did not have dangerous and/or serious adverse health safety concerns, and that the PRODUCTS were as safe as other products. DEFENDANTS’ intent and purpose in making these misrepresentations was to deceive, gain the confidence of the public and the medical community, and falsely assure the public, PLAINTIFF, and DECEDENT of the quality and fitness for use of their talc-based PRODUCTS to induce DECEDENT and the public to use their PRODUCTS.

69. Atall times relevant to this action, DEFENDANTS knew that the PRODUCTS were not safe for consumers. Nonetheless, DEFENDANTS recklessly and/or intentionally falsely represented the dangerous and serious health and safety concems inherentPRODUCTS to the public at large, for the purpose of influencing the sale of PRODUCTS known to be dangerous and defective, and/or not as safe as other alternatives.

70. The misrepresentations and active concealment by DEFENDANTS constitute a continuing tort. Indeed, DEFENDANTS continue to misrepresent the potential risks and serious side effects associated with the use of their PRODUCTS. As aresult of the DEFENDANTS’ advertising, marketing, and representations, the PRODUCTS are and continue to be pervasively manufactured and used in California and throughout the United States.

71. The acts, conduct, and omissions of DEFENDANTS, and each of them, as alleged throughout this Complaint were fraudulent, willful, and malicious and were done with a conscious disregard for the rights of DECEDENT and other users of the PRODUCTS and for the primary purpose of increasing DEFENDANTS’ profits from the sale and distribution of the PRODUCTS. DEFENDANTS’ outrageous and unconscionable conduct warrants an award of exemplary and punitive damages against each DEFENDANT in an amount appropriate to punish and make an example of each DEFENDANT.

72. Priorto the manufacturing, sale and distribution of the PRODUCTS, DEFENDANTS, and each of them, knew that the PRODUCTS were in a defective condition as previously alleged herein and knew that those who used the PRODUCTS for feminine hygiene purposes would

experience and did experience severe physical, mental, and emotional injuries. Further, DEFENDANTS and each of them through their officers, directors, managers, and agents, had knowledge that the PRODUCT'S presented a substantial and unreasonable risk of harm to the public, including DECEDENT, as such, consumers of the PRODUCTS were unreasonably subjected to risk of injury. Despite such knowledge, DEFENDANTS, and each of them, acting through their officers, directors, and managing agents for the purpose of enhancing DEFENDANTS’ profits, knowingly and deliberately failed to remedy the known defects in the PRODUCTS and failed to warn the public, including PLAINTIFF and DECEDENT, of the extreme risk of injury occasioned by said defects inherent in the PRODUCTS. DEFENDANTS and their individual agents, officers, and directors intentionally proceeded with the manufacturing, sale, distribution and marketing of the PRODUCTS knowing that the public, including DECEDENT, would be exposed to serious danger in order to advance DEFENDANTS’ pecuniary interest and monetary profits.

73. DEFENDANTS’ conduct was despicable, and so contemptible that it would be looked down upon and despised by ordinary decent people, and, moreover, was carried on by DEFENDANTS with willful and conscious disregard for safety, entitling PLA INTIFF to exemplary damages under California Civil Code section 3294.

74. PLAINTIFF filed this lawsuit within the applicable limitations period of first suspecting that the PRODUCTS were the cause of any appreciable harm sustained by DECEDENT and PLAINTIFF, within the applicable limitations period of first suspecting or having reason to suspect any wrongdoing, and within the applicable limitations period of first discovering the injuries. PLAINTIFF or DECEDENT could not, by the exercise of reasonable diligence, have discovered any wrongdoing and could not have discovered the causes of the injuries at an earlier time because the injuries occurred without initial perceptible trauma or harm and, when the injuries were discovered, the causes were not immediately known. PLAINTIFF or DECEDENT did not suspect, nor did they have reason to suspect, that wrongdoing had caused the injuries until recently. PLAINTIFF filed the original action within two years of discovering the causes of action and identities of DEFENDANTS.

75. PLAINTIFF and DECEDENT had no knowledge of the defectsin the PRODUCTS or of the wrongful conduct of DEFENDANTS as set forth herein, nor did they have access to

information regarding other injuries and complaints in the possession of DEFENDANTS. Additionally, PLAINTIFF and DECEDENT were prevented from discovering this information sooner because DEFENDANTS herein misrepresented and continue to misrepresent to the public that the PRODUCTS are safe and free from defects, and DEFENDANT'S fraudulently concealed information to allow PLAINTIFF or DECEDENT to discover a potential cause of action sooner.

76. PLAINTIFF has reviewed his potential legal claims and causes of action against DEFENDANTS and intentionally chooses only to pursue claims based on state-law. A ny reference to a federal agency, regulation, or rule is stated solely as background information and does not raise a federal question. PLAINTIFF is not making any claims that raise federal questions.

FIRST CAUSE OF ACTION STRICT PRODUCTS LIABILITY - FAILURE TO WARN

(Against All Defendants)

77. PLAINTIFF re-alleges each and every previous paragraph and incorporates them herein by reference as though set forth in full.

78. PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times alleged herein, Defendant IMERYS TALC mined and sold talc to the DEFENDANTS and DEFENDANTS then packaged and sold said talc in the PRODUCTS to consumers knowing that consumers of the PRODUCTS were using it to powder their perineal regions.

79. PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times alleged herein, DEFENDANT'S knew and/or should have known of the unreasonably dangerous and carcinogenic nature of the talc contained in the PRODUCTS.

80. PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times alleged herein, DEFENDANTS, especially when used in a woman's perineal regions, knew or should have known that no warnings were being given consumers of the serious risks posed by use of the PRODUCTS.

81. PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times alleged herein, DEFENDANTS were manufacturing, marketing, testing, promoting, selling, and/or distributing the PRODUCTS in the regular course of business.

82. PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times alleged herein, DECEDENT used the PRODUCTS to powder her perineal area, which is a reasonably foreseeable use.

83. PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times alleged herein, at all pertinent times, all DEFENDANTS in this action knew or should have known that the use of talcum powder based products in the perineal area significantly increases the risk of ovarian cancer based upon scientific knowledge dating back to the 1960s.

84. PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times alleged herein, including the time of sale and consumption, the PRODUCTS, when put to the aforementioned reasonably foreseeable use, were in an unreasonably dangerous and defective condition because they failed to contain adequate and proper warnings and/or instructions regarding the increased risk of ovarian cancer associated with the use of the PRODUCTS by women to powder their perineal area. DEFENDANT'S themselves failed to properly and adequately warn and instruct DECEDENT as to the risks and benefits of the PRODUCTS given DECEDENT’s need for this information.

35. Had DECEDENT received a warning that the use of the PRODUCTS would have significantly increased her risk of ovarian cancer, DECEDENT would not have used the same. As a proximate result of DEFENDANTS’ design, manufacture, marketing, sale, and distribution of the PRODUCTS, DECEDENT was catastrophically and fatally injured, and was caused severe and permanent pain, suffering, disability, impairment, loss of enjoyment of life, loss of care, comfort, and economic damages during her lifetime.

86. PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times alleged herein, DECEDENT’S cancer was the direct and proximate result of the unreasonably dangerous and defective condition of the PRODUCTS at the time of sale and consumption, including their lack of warmings.

87. PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times alleged herein, the DEFENDANTS’ PRODUCT'S were defective because it failed to contain warnings and/or instructions, and breached express warranties and/or failed to conform to express factual representations upon which DECEDENT justifiably relied in electing to use the PRODUCTS. The

defect or defects made the PRODUCTS unreasonably dangerous to those persons, such as DECEDENT, who could reasonably be expected to use and rely upon such PRODUCTS. As aresult, the defect or defects were a proximate and producing cause of PLAINTIFF and DECEDENT’S injuries and damages.

88. Asalegal and proximate result of DEFENDANTS’ failure to warn, DECEDENT used the PRODUCTS and developed ovarian cancer, which required substantial treatments, caused her to suffer physical injuries, pain and suffering, extreme mental and physical anguish, and ultimately caused her death.

89. As a further direct and proximate result of DEFENDANTS’ failure to warm, PLAINTIFF has suffered economic damages, including but not limited to monetary contributions and financial support from DECEDENT, loss of gifts or benefits, funeral and burial expenses, and household services, noneconomic damages, including but not limited to deprivation of love, affection, solace, companionship, society, moral support, assistance, protection, training and guidance, consortium, services, comfort, care, counsel, and advice of DECEDENT, and any other damages as permitted by law.,

90. PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times alleged herein, DEFENDANTS’ PRODUCTS failed to contain, and continues to this day not to contain, adequate warnings and/or instructions regarding the increased risk of ovarian cancer with the use of their talc-based PRODUCTS. DEFENDANTS continue to market, advertise, and expressly represent to the general public that it is safe for women to use their PRODUCTS regardless of application. DEFENDANTS continue with these marketing and advertising campaigns despite having scientific knowledge that dates back to the 1960s that their PRODUCT'S increase the risk of ovarian cancer in women when used in the perineal area.

91. Inperforming the foregoing acts, conduct, and omission DEFENDANTS, and each of them, acted despicably, fraudulently, and with malice and oppression so as to justify an award of punitive and exemplary damages.

[1] [1] [1]

SECOND CAUSE OF ACTION STRICT PRODUCTS LIABILITY - DESIGN DEFECT

(Against All Defendants)

92. PLAINTIFF re-alleges each and every previous paragraph and incorporates them herein by reference as though set forth in full.

93. PLAINTIFF is informed and believes, and thereon alleges, that all relevant times alleged herein, the PRODUCTS were designed, engineered, developed, manufactured, fabricated, assembled, equipped, tested or failed to test, inspected or failed to inspect, labeled, advertised, promoted, marketed, supplied, distributed, licensed, wholesaled, and sold by DEFENDANTS.

94, PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times alleged herein, the PRODUCTS manufactured, supplied, licensed, and/or placed into the stream of

commerce by DEFENDANTS was defective and unreasonably dangerous in that:

a. The foreseeable risks far exceeded the benefits associated with the design or formulation;

b. They contained inadequate warnings or instructions; and

C. They contained dangerous ingredients while feasible safer alternative designs

and ingredients were available.

95. PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times alleged herein, the PRODUCTS manufactured, supplied, licensed, and/or placed into the stream of commerce by DEFENDANTS was more dangerous than an ordinary consumer would expect, and more dangerous than other PRODUCTS or procedures available.

96. PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times alleged herein, DEFENDANTS knew that the PRODUCTS were to be purchased and used without inspection for defects.

97. PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times alleged herein, the PRODUCT'S were and are unsafe for its intended use by reason of defects in the design so that it would not safely serve its purpose, but would instead expose the users of said PRODUCTS to serious injuries.

98. DECEDENT used the PRODUCTS in a reasonably foreseeable manner. 99. DEFENDANTS designed the PRODUCT'S defectively, causing the PRODUCTS to fail to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.

100. As alegal and proximate result of the aforementioned defects in the design of the PRODUCTS, DECEDENT used the PRODUCTS and developed ovarian cancer, which required substantial treatments, caused her to suffer physical injuries, pain and suffering, extreme mental and physical anguish, and ultimately caused her death.

101. Asafurtherdirect and proximate result of the aforementioned defects in the design of the PRODUCTS, PLAINTIFF has suffered economic damages, including but not limited to monetary contributions and financial support from DECEDENT, loss of gifts or benefits, funeral and burial expenses, and household services, noneconomic damages, including but not limited to deprivation of love, affection, solace, companionship, society, moral support, assistance, protection, training and guidance, consortium, services, comfort, care, counsel, and advice of DECEDENT, and any other damages as permitted by law.

102. Inperforming the foregoing acts, conduct, and omission DEFENDANTS, and each of them, acted despicably, fraudulently, and with malice and oppression so as to justify an award of punitive and exemplary damages.

THIRD CAUSE OF ACTION NEGLIGENCE

(Against All Defendants)

103. PLAINTIFF re-alleges each and every previous paragraph and incorporates them herein by reference as though set forth in full.

104. PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times alleged herein, DEFENDANTS were negligent in marketing, designing, manufacturing, producing, supplying, inspecting, testing, selling, and/or distributing the PRODUCTS in one or more of the following respects:

a. In failing to wamn DECEDENT of the hazards associated with the use of the PRODUCTS; b. In failing to properly test their PRODUCTS to determine adequacy and effectiveness or safety measures, if any, prior to releasing the PRODUCTS for consumer use;

C. In failing to properly test their PRODUCTS to determine the increased risk of ovarian cancer during the normal and/or intended use of the PRODUCTS;

d. In failing to inform ultimate users, such as DECEDENT, as to the safe and proper methods of handling and using the PRODUCTS;

€. In failing to remove the PRODUCTS from the market when the DEFENDANTS knew or should have known the PRODUCTS were defective;

f. In failing to instruct the ultimate users, such as DECEDENT, as to the methods for reducing the type of exposure to the PROD UCTS which caused increased risk of ovarian cancer;

g. In failing to inform the public in general and DECEDENT in particular of the known dangers of using the PRODUCT'S for dusting the perineum;

h. In failing to advise users how to prevent or reduce exposure that caused increased risk for ovarian cancer;

i, In marketing and labeling the PRODUCTS as safe for all uses despite knowledge to the contrary.

j. In failing to actlike a reasonably prudent company under similar circumstances.

105. Each and all of these acts and omissions, taken singularly or in combination, were a proximate cause of the injuries and damages sustained by DECEDENT.

106. PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times alleged herein, DEFENDANTS knew or should have known that the PRODUCT S were unreasonably dangerous and defective when put to its reasonably anticipated use.

107. PLAINTIFF is informed and believes, and thereon alleges, that as a direct and proximate result of the DEFENDANTS’ negligence in one or more of the aforementioned ways, DECEDENT purchased and used, as aforesaid, the PRODUCT'S that directly and proximately caused DECEDENT to develop ovarian cancer.

108. PLAINTIFF is informed and believes, and thereon alleges, that DECEDENT was caused to incur medical bills, lost wages, and conscious pain and suffering.

109. Asadirectand proximate resultof DEFENDANTS’ negligence, DECEDENT used the PRODUCTS and developed ovarian cancer, which required substantial treatments, caused her to suffer physical injuries, pain and suffering, extreme mental and physical anguish, and ultimately caused her death.

110. As a direct and proximate result of DEFENDANTS’ negligence, PLAINTIFF has suffered economic damages, including but not limited to monetary contributions and financial support from DECEDENT, loss of gifts or benefits, funeral and burial expenses, and household services, noneconomic damages, including but not limited to deprivation of love, affection, solace, companionship, society, moral support, assistance, protection, training and guidance, consortium, services, comfort, care, counsel, and advice of DECEDENT, and any other damages as permitted by law.

111. The foregoing acts, conduct, and omissions of each DEFENDANT were vile, willful, malicious, wanton, oppressive, and fraudulent, and were done with a conscious disregard for the health, safety, and rights of DECEDENT and PLAINTIFF, and other persons affected by the use of DEFENDANTS’ PRODUCTS, and for the primary purpose of increasing DEFENDANTS’ profits.

112. Inperforming the foregoing acts, conduct, and omission DEFENDANTS, and each of them, acted despicably, fraudulently, and with malice and oppression so as to justify an award of punitive and exemplary damages.

FOURTH CAUSE OF ACTION NEGLIGENT MISREPRESENTATION

(Against All Defendants)

113. PLAINTIFF re-alleges each and every previous paragraph and incorporates them herein by reference as though set forth in full.

114. DEFENDANTS had a duty to accurately and truthfully representto DECEDENT and the public, that the PRODUCTS had been tested and found to be safe and effective for use in the perineal area. The representations made by DEFENDANTS, in fact, were false.

115. DEFENDANTS failed to exercise ordinary care in their representations to DECEDENT and the public concering the PRODUCT S while they were involved in its manufacture, sale, testing, quality assurance, quality control, and distribution in interstate commerce, because

DEFENDANTS negligently misrepresented the PRODUCTS’ high risk of unreasonable, dangerous, adverse side effects.

116. DEFENDANTS breached their duty in representing that the PRODUCTS had no serious side effects and was safe to use on every area of the body except in the eyes.

117. As a foreseeable, direct and proximate result of the negligent misrepresentation of DEFENDANTS as set forth herein, DEFENDANTS knew, and had reason to know, that the PRODUCTS had been insufficiently tested, or had not been tested at all, and that it lacked adequate and accurate warnings, and that it created a high risk, and/or higher than acceptable risk, and/or higher than reported and represented risk, of adverse side effects.

118. As a proximate result of DEFENDANTS’ conduct, DECEDENT was injured and sustained severe and permanent pain, suffering, disability, impairment, loss of enjoyment of life, loss of care and comfort, economic damages, and death.

119. Asadirectand proximate result of DEFENDANTS’ misrepresentations, DECEDENT used the PRODUCTS, and caused DECEDENT to suffer serious, permanent, and fatal injuries.

120. Asadirectand proximate result of DEFENDANTS’ misrepresentations, DECEDENT used the PRODUCTS and developed ovarian cancer, which required substantial treatments, caused herto suffer physical injuries, pain and suffering, extreme mental and physical anguish, and ultimately caused her death.

121. Asadirect and proximate result of DEFENDANTS’ misrepresentations, PLAINTIFF has suffered economic damages, including but not limited to monetary contributions and financial support from DECEDENT, loss of gifts or benefits, funeral and burial expenses, and household services, noneconomic damages, including but not limited to deprivation of love, affection, solace, companionship, society, moral support, assistance, protection, training and guidance, consortium, services, comfort, care, counsel, and advice of DECEDENT, and any other damages as permitted by law.

122. In performing the foregoing acts, conduct, and omission of DEFENDANTS, each of them, acted despicably, fraudulently, and with malice and oppression so as to justify an award of punitive and exemplary damages.

[11]

FIFTH CAUSE OF ACTION BREACH OF EXPRESS WARRANTY

(Against All Defendants)

123. PLAINTIFF re-alleges each and every previous paragraph and incorporates them herein by reference as though set forth in full.

124. PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times alleged herein, DEFENDANTS expressly warranted, through direct-to-consumer marketing, advertisements, and labels, that the PRODUCTS were safe and effective for reasonably anticipated uses, including use by women in the perineal area.

125. PLAINTIFF is informed and believes, and thereon alleges, that at all relevant times alleged herein, the PRODUCTS did not conform to these express representations because it causes serious injury when used by women in the perineal area in the form of ovarian cancer.

126. As a direct and proximate result of the DEFENDANTS’ breach of warranty, DECEDENT purchased and used, as aforesaid, the PRODUCT'S that directly and proximately caused DECEDENT to develop ovarian cancer and suffer fatal injuries; PLAINTIFF and DECEDENT were caused to incur special and general damages.

127. Asadirect and proximate result of DEFENDANTS’ breach of warranty, DECEDENT used the PRODUCTS, and caused DECEDENT to suffer serious, permanent, and fatal injuries.

128. As a direct and proximate result of DEFENDANTS’ breach of implied warranties, DECEDENT used the PRODUCTS and developed ovarian cancer, which required substantial treatments, caused her to suffer physical injuries, pain and suffering, extreme mental and physical anguish, and ultimately caused her death.

129. Asadirect and proximate result of DEFENDANTS’ breach of warranty, PLAINTIFF has suffered economic damages, including but not limited to monetary contributions and financial support from DECEDENT, loss of gifts or benefits, funeral and burial expenses, and household services, noneconomic damages, including but not limited to deprivation of love, affection, solace, companionship, society, moral support, assistance, protection, training and guidance, consortium, services, comfort, care, counsel, and advice of DECEDENT, and any other damages as permitted by

law. 130. In performing the foregoing acts, conduct, and omission of DEFENDANTS, each of them, acted despicably, fraudulently, and with malice and oppression so as to justify an award of punitive and exemplary damages.

SIXTH CAUSE OF ACTION BREACH OF IMPLIED WARRANTY

(Against All Defendants)

131. PLAINTIFF re-alleges each and every previous paragraph and incorporates them herein by reference as though set forth in full.

132. PLAINTIFF is informed and believes, and thereon alleges, that at the time DEFENDANTS manufactured, marketed, labeled, promoted, distributed, and/or sold the PRODUCTS, DEFENDANTS knew of the uses for which the PRODUCTS were intended, including use by women in the perineal area, and impliedly warranted the PRODUCTS to be of merchantable quality and safe for such use.

133. DEFENDANTS breached their implied warranties of the PRODUCTS sold to PLAINTIFF because they were not fit for its common, ordinary and intended uses, including use by women in the perineal area.

134. Asadirect, foreseeable, and proximate result of DEFENDANTS’ breach of implied warranties, DECEDENT purchased and used, as aforesaid, the PRODUCTS that directly and proximately caused DECEDENT to develop ovarian cancer, and DECEDENT was caused to incur medical bills, lost wages, conscious pain and suffering.

135. As a direct and proximate result of DEFENDANTS’ breach of implied warranties, DECEDENT used the PRODUCTS, and caused DECEDENT to suffer serious, permanent, and fatal injuries.

136. As a direct and proximate result of DEFENDANTS’ breach of implied warranties, DECEDENT used the PRODUCTS and developed ovarian cancer, which required substantial treatments, caused her to suffer physical injuries, pain and suffering, extreme mental and physical anguish, and ultimately caused her death.

137. As a direct and proximate result of DEFENDANTS’ breach of implied warranties,

PLAINTIFF has suffered economic damages, including but not limited to monetary contributions and financial support from DECEDENT, loss of gifts or benefits, funeral and burial expenses, and household services, noneconomic damages, including but not limited to deprivation of love, affection, solace, companionship, society, moral support, assistance, protection, training and guidance, consortium, services, comfort, care, counsel, and advice of DECEDENT, and any other damages as permitted by law.

138. In performing the foregoing acts, conduct, and omission of DEFENDANTS, each of them, acted despicably, fraudulently, and with malice and oppression so as to justify an award of punitive and exemplary damages.

SEVENTH CAUSE OF ACTION

DECEIT BY CONCEALMENT - CALIFORNIA CIVIL CODE §§ 1709, 1710 (Against All Defendants)

139. PLAINTIFF re-alleges each and every previous paragraph and incorporates them herein by reference as though set forth in full.

140. PLAINTIFF isinformed and believes, and thereon alleges, that DEFENDANT'S, and each of them, from the time that the PRODUCTS were first tested, studied, researched, evaluated, endorsed, manufactured, marketed and distributed, and up to the present, willfully deceived DECEDENT and the public in general by concealing from them the true facts conceming the PRODUCTS, which DEFENDANTS had a duty to disclose.

141. PLAINTIFF is informed and believes, and thereon alleges, that at all times relevant hereto, DEFENDANTS, and each of them, conducted a sales and marketing campaign to promote the sale of the PRODUCTS and willfully deceived DECEDENT and the public in general as to the health risks and consequencesPRODUCTS including, but not limited to, the following false, deceptive, misleading, and untruthful advertisements, public statements, marketing campaigns, and promotions:

a. In failing to warn DECEDENT of the hazards associated with the use of the PRODUCTS;

b. In failing to properly test their PRODUCTS to determine adequacy and effectiveness or safety measures, if any, prior to releasing the PRODUCTS for consumer use;

C. In failing to properly test their PRODUCTS to determine the increased risk of ovarian cancer during the normal and/or intended use of the PRODUCTS;

d. In failing to inform ultimate users, such as DECEDENT, as to the safe and proper methods of handling and using the PRODUCTS;

e. In failing to remove the PRODUCTS from the market when the DEFENDANTS knew or should have known the PRODUCTS were defective;

f. In failing to instruct the ultimate users, such as DECEDENT, as to the methods for reducing the type of exposure to the PROD UCTS which caused increased risk of ovarian cancer;

of In failing to inform the public in general and DECEDENT in particular of the known dangers of using the PRODUCTS for dusting the perineum;

h. In failing to advise users how to prevent or reduce exposure that caused increased risk for ovarian cancer;

i, In marketing and labeling the PRODUCTS as safe for all uses despite knowledge to the contrary.

j. In failing to act like a reasonably prudent company under similar circumstances.

142. DEFENDANTS, and each of them, were aware of the foregoing, that the PRODUCTS were not safe, fit, and effective for use as intended. Furthermore, DEFENDA NTS were aware that the use of the PRODUCTS were hazardous to health, and that the PRODUCTS carries a significant propensity to cause serious injuries to users including, but not limited to, the injuries suffered by DECEDENT as alleged herein.

143. DEFENDANTS intentionally concealed and suppressed the true facts concerning the PRODUCTS with the intent to defraud DECEDENT, other consumers, and the public in general, in that DEFENDANTS knew that DECEDENT would not have used the PRODUCTS if she had known the true facts concerning the risks and dangers of the PRODUCTS.

144, As a direct and proximate result of DEFENDANTS’ fraud, deceit, and misrepresentations, DECEDENT used the PRODUCTS, and caused DECEDENT to suffer serious, permanent, and fatal injuries.

145. As a direct and proximate result of DEFENDANTS’ fraud, deceit, and misrepresentations, DECEDENT used the PRODUCTS and developed ovarian cancer, which required substantial treatments, caused her to suffer physical injuries, pain and suffering, extreme mental and physical anguish, and ultimately caused her death.

146. As a direct and proximate result of DEFENDANTS’ fraud, deceit, and misrepresentations, PLAINTIFF has suffered economic damages, including but not limited to monetary contributions and financial support from DECEDENT, loss of gifts or benefits, funeral and burial expenses, and household services, noneconomic damages, including but not limited to deprivation of love, affection, solace, companionship, society, moral support, assistance, protection, training and guidance, consortium, services, comfort, care, counsel, and advice of DECEDENT, and any other damages as permitted by law.

147. Inperforming the foregoing acts, conduct, and omission of DEFENDANTS, each of them, were vile, base, willful, malicious, wanton, oppressive and fraudulent, and were done with a conscious disregard forthe health and safety of DECEDENT and other users of the PRODUCTS, and in reckless ignorance of the truth of said PRODUCTS, for the primary purpose or increasing and sustaining profits. As such, PLAINTIFF is entitled to punitive damages.

148. Asaresultof the foregoing fraudulent and deceitful conduct by DEFENDANTS, and each of them, PLAINTIFF and DECEDENT suffered injuries and damages as alleged hereinabove.

EIGHTH CAUSE OF ACTION FRAUD

(Against All Defendants)

149. PLAINTIFF re-alleges each and every previous paragraph and incorporates them herein by reference as though set forth in full.

150. PLAINTIFFisinformed and believes, and thereon alleges, that DEFENDA NTS falsely and fraudulently represented to DECEDENT, and members of the general public, that the PRODUCTS were safe foruse. The representations by DEFENDA NTS were in fact, false. Contrary to DEFENDANTS’ representations, the PRODUCTS were not safe for use by and members of the general public and were, in fact, extremely dangerous to consumers.

151. DEFENDANTS made other representations about the safety of the PRODUCTS, including, but not limited to, the false, deceptive, misleading, and untruthful advertisements, public

statements, marketing campaigns, and promotions alleged herein. 152. The representations by DEFENDANTS were, in fact, false. The true facts are that the PRODUCTS cause ovarian cancer.

153. DEFENDANTS misrepresented the safety of the PRODUCTS, represented that the PRODUCTS marketed was safe for long term use, and concealed warnings of the known or knowable risks and side effects of the PRODUCTS.

154. When DEFENDA NTS made these representations, they knew that such representations were false. DEFENDANTS made the representations with the intent to defraud and deceive DECEDENT, consumers, and the public in general, and with the intent to induce them to use the PRODUCTS and act in the manner alleged in this Complaint.

155. DECEDENT took the actions alleged in this Complaint, while ignorant of the falsity of DEFENDANTS’ representations and reasonably believed them to be true. In reliance upon such representations, DECEDENT was induced to, and did, use the PRODUCTS as alleged in this Complaint. If DECEDENT had known the actual facts, DECEDENT would not have taken such actions nor used the PRODUCTS, and her reliance upon DEFENDANTS’ misrepresentations was justified because such misrepresentations were made and conducted by individuals and entities that were in a position to know the true facts.

156. Asadirectand proximate resultof DEFENDANTYS’ fraud and deceit, PLAINTIFF and DECEDENT sustained the injuries and damages as alleged in this Complaint.

157. As a direct and proximate result of DEFENDANTS’ fraud, deceit, and misrepresentations, DECEDENT used the PRODUCTS, and caused her to suffer serious, permanent, and ultimately fatal injuries.

158. As a direct and proximate result of DEFENDANTS’ fraud, deceit, and misrepresentations, DECEDENT used the PRODUCT'S and developed ovarian cancer, which required substantial treatments, caused her to suffer physical injuries, pain and suffering, extreme mental and physical anguish, and ultimately caused her death.

159. As a direct and proximate result of DEFENDANTS’ fraud, deceit, and misrepresentations, PLAINTIFF has suffered economic damages, including but not limited to

monetary contributions and financial support from DECEDENT, loss of gifts or benefits, funeral and burial expenses, and household services, noneconomic damages, including but not limited to deprivation of love, affection, solace, companionship, society, moral support, assistance, protection, training and guidance, consortium, services, comfort, care, counsel, and advice of DECEDENT, and any other damages as permitted by law.

160. In performing the acts alleged in this Complaint, DEFENDANTS acted with oppression, fraud, and malice. PLAINTIFF is therefore entitled to punitive damages to deter DEFENDANTS and others from engaging in similar conduct in the future. The wrongful conduct was undertaken with the advance knowledge, authorization, or ratification of an officer, director, or managing agent of DEFENDANTS.

161. DEFENDANTS have acted willfully, wantonly, with an evil motive, and recklessly in one or more of the following ways:

a. DEFENDANTS knew of the unreasonably high risk of ovarian cancer posed by the PRODUCTS before manufacturing, marketing, distributing and/or selling the PRODUCTS, yet purposefully proceeded with such action;

b. Despite their knowledge of the high risk of ovarian cancer associated with the PRODUCTS, DEFENDANTS affirmatively minimized this risk through marketing and promotional efforts and PRODUCTS labeling;

C. Through the actions outlined above, DEFENDANTS expressed a reckless indifference to the safety of users of the PRODUCTS, including DECEDENT. DEFENDANTS’ conduct, as described herein, knowing the dangers and risks of the PRODUCTS, yet concealing and/or omitting this information, in furtherance of their conspiracy and concerted action was outrageous because of DEFENDANTS’ evil motive or a reckless indifference to the safety of users of the PRODUCTS.

162. In performing the foregoing acts, conduct, and omission of DEFENDANTS, each of them, were vile, base, willful, malicious, wanton, oppressive and fraudulent, and were done with a conscious disregard for the health and safety of DECEDENT and otherusers of the PRODUCTS, and in reckless ignorance of the truth of said PRODUCTS, for the primary purpose or increasing and sustaining profits. As such, PLAINTIFF is entitled to punitive damages. 163. As a direct and proximate result of the willful, wanton, evilly, motivated and/or reckless conduct of DEFENDANTS, PLAINTIFF and DECEDENT has sustained damages as set forth above.

NINTH CAUSE OF ACTION WRONGFUL DEATH

(A gainst all Defendants)

164. PLAINTIFF hereby incorporates each of the preceding paragraphs as if fully set forth herein.

165. PLAINTIFF is the surviving heir of DECEDENT, as identified above, who used the PRODUCTS and was injured and died as a result. DECEDENT purchased, were supplied with, received, applied, used and consumed said PRODUCTS as tested, studied, researched, evaluated, endorsed, designed, formulated, compounded, manufactured, produced, processed, assembled, inspected, distributed, marketed, labeled, promoted, packaged, advertised for sale, sold or otherwise placed in the stream of interstate commerce by DEFENDANTS.

166. Theinjuries and damages of PLAINTIFF were caused by the wrongful acts, omissions, and fraudulent misrepresentations of DEFENDANTS.

167. Asaresult of the conduct of DEFENDANTS and the exposure of the PRODUCTS to the DECEDENT, the DECEDENT suffered fatal injury.

168. Asadirectand proximate result of D efendants' wrongful conduct as herein alleged as of the death of the DECEDENT, PLAINTIFF suffered the loss of consortium, including the loss of love, service, society, comfort, companionship and support of the DECEDENT.

169. Asadirectand proximate result of Defendants' wrongful conduct as herein alleged as of the death of the DECEDENT, PLAINTIFF and the Estate incurred the cost of burial and funeral expenses.

170. PLAINTIFF is entitled to recover economic and non-economic damages against all DEFENDANTS for wrongful death directly and legally caused by the defects in DEFENDANTS’ PRODUCTS and the negligent conduct, acts, errors, omissions and intentional and negligent

misrepresentations of DEFENDANTS, and each of them.

[]]

TENTH CAUSE OF ACTION SURVIVAL ACTION

(A gainst all Defendants)

171. PLAINTIFF hereby incorporate each of the preceding paragraphs as if fully set forth herein.

172. As a direct and proximate result of the DEFENDANTS' conduct and their failure to comply with applicable standards, as outlined above, DECEDENT suffered bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity of the enjoyment of life, expenses of hospitalization, medical and nursing care and treatment, and loss of earnings as well as loss of ability to earn money prior to DECEDENT’S death.

173. PLAINTIFF the successor-in-interest of DECEDENT’S Estate, brings this claim for damages on behalf of the DECEDENT and DECEDENT’S beneficiaries pursuant to Code of Civil Procedure sections 377.31, et seq.

174. DECEDENT incurred special damages in the form of the reasonable value of services rendered for medical care forthe injuries that DECEDENT sustained prior to death, all caused by the DECEDENT'’S exposure to the PRODUCTS.

RELIEF REQUESTED

WHEREFORE, PLAINTIFF prays forjudgment against DEFENDA NTS, and each of them, as follows:

1. Past and future general damages, the exact amount of which has yet to be ascertained, in an amount which will conform to proof at time of trial;

Past and future economic and special damages according to proof at the time of trial; Loss of earnings and impaired earning capacity according to proof at the time of trial; Wrongful death damages according to proof at the time of trial;

Survival damages according to proof at the time of trial;

Medical expenses, past and future, according to proof at the time of trial;

For past and future mental and emotional distress, according to proof;

Punitive or exemplary damages according to proof at the time of trial;

= W

Attorney’s fees; 10. For costs of suit incurred herein; 11. For pre-judgment interest as provided by law; and

12. Forsuch other and further relief as the Court may deem just and proper

DATED: January 16, 2018 KIESEL LAW LLP

. T Do

Helen Zukin Melanie Meneses Palmer Cherisse H. Cleofe

BOUCHER LLP

Raymond P. Boucher Shehnaz Bhujwala

A ttorneys for Plaintiff

DEMAND FOR JURY TRIAL

PLAINTIFF hereby demands a trial by jury as to all claims in this action.

DATED: January 16, 2018 KIESEL LAWLLP

By: ;Q% 2:‘ L& J Helen"Zuki

Melanie Meneses Palmer Cherisse H. Cleofe

BOUCHER LLP

Raymond P. Boucher Shehnaz Bhujwala