On August 22, 2018 a
Complaint,Petition
was filed
involving a dispute between
Nita Hill-Escobedo,
and
Does 1 Through 100, Inclusive,
Imerys Talc America, Inc. F K A Luzenac America, Inc.,
Johnson & Johnson,
Johnson & Johnson Consumer Companies, Inc.,
for Product Liability Unlimited (24)
in the District Court of Santa Clara County.
Preview
Paul R. Kiesel, State Bar No.
kiesel@kiesel.law
Melanie Meneses Palmer, State Bar No. 286752
palmer@kiesel.law
Cherisse Heidi A. Cleofe, State Bar No. 290152
cleofe@kiesel.law
KIESEL LAW LLP
8648 Wilshire Boulevard
Beverly Hills, California 90211-2910
Tel: 310-854-4444
Fax: 310-854-0812
Anna Dean Kamins [Pro Hac ice Pending]
anna@dpdlawfirm.com
DANIEL & ASSOCIATES, LLC
2409 Commerce Street
Houston, TX 77003
Tel: 713-589-3539
Fax: 713-481-9884
Attorneys for Plaintiff
NITA HILL ESCOBEDO
Beverly HillsCalifornia
Attorneys at Law
KIESEL LAW
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
NITA HILL ESCOBEDO an individual Case No.
Plaintiff COMPLAINT FOR DAMAGES AND
DEMAND FOR JURY TRIAL
1. STRICT PRODUCT LIABILITY
JOHNSON & JOHNSON; JOHNSON & FAILURE TO WARN
JOHNSON CONSUMER COMPANIES INC.; 2. STRICT PRODUCT LIABILITY
IMERYS TALC AMERICA, INC. f/k/a DESIGN DEFECT
LUZENAC AMERICA INC.; and DOES 1 3. NEGLIGENCE
through 100, inclusive, 4. NEGLIGENT
MISREPRESENTATION
Defendants. 5. BREACH OF EXPRESS
WARRANTY
6. BREACH OF IMPLIED
WARRANTY
DECEIT BY CONCEALMENT -
CALIFORNIA CIVIL CODE §§
8. FRAUD
COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
Plaintiff herein by and through counsel for her causes of action against the Defendants
allege as follows:
PARTIESJURISDICTION AND VENUE
Plaintiff NITA HILL ESCOBEDO is a competent individual over the age of 18
citizen of the United Statesand a resident of Los AngelesCounty in the tate of California.
Plaintiff is informed and believe and based thereon allege that at all relevant
times Defendant JOHNSON & JOHNSON is a corporation doing business in and authorized to do
business in the tate of California and was incorporated in New Jersey in 1887.
Plaintiff is informed and believe and based thereon allege that at all relevant
times Defendant JOHNSON & JOHNSON maintains an office located at One Johnson & Johnson
Plaza New Brunswick New Jersey 08933 as well as several locations within the State of
California and has approximately 100 employees worldwide. As stated in JOHNSON &
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Attorneys at Law
JOHNSON S Form10 K Annual Report Pursuant to Section 13 of the Securities Exchange Act of
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1934 for the fiscal year ended January 3 JOHNSON & JOHNSON S primary focus is on
products related to human health and well being.
Plaintiff informed and believe and based thereon allege that at all relevant
times Defendant JOHNSON & JOHNSON S family of companies includes more than 250
operating companies conducting business in 60 countries of the world and organized into three
business segments: ConsumerPharmaceutical and Medical Devices.
Plaintiff informed and believe and based thereon allege at at all relevant
times the JOHNSON & JOHNSON family of companies includes 121 manufacturing facilities
and within the United States eight facilities are used by the Consumer segment. In addition to
the manufacturing facilities JOHNSON & JOHNSON maintains numerous offices and
warehouses in the United States.
Plaintiff informed and believe and based thereon allege that at all relevant
times the Consumer segment of the JOHNSON & JOHNSON family of companies includes a
broad range of over the counter products including but not limited to Shower to Shower body
powder and Johnson & Johnson s Baby Powder. These products are marketed to the general
COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
public and sold both to retail outlets and distributors throughout the world.
Plaintiff informed and believe and based thereon allege that at all relevant
times Defendant JOHNSON & JOHNSON has engaged in substantial continuous economic
activity in California including marketing distribution and sale of billions dollars in products to
Californians including but not limited to Shower to Shower body powder and Johnson &
Johnson s Baby Powder that said activity by Defendant is substantially connected to the
Plaintiff s claims as alleged herein.
Plaintiff informed and believe and based thereon allege at all relevant times
Defendant JOHNSON & JOHNSON CONSUMER COMPANIES INC. was a New Jersey
Corporation doing business in the State of California a wholly owned subsidiary of JOHNSON &
JOHNSON and engaged in substantial continuous economic activity in California including
marketing distribution and sale of billions dollars in products to Californians including but not
Beverly HillsCalifornia
Attorneys at Law
limited to Shower to Shower body powder and Johnson & Johnson s Baby Powder that said
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activity by Defendant is substantially connected to the Plaintiff s claims as alleged herein.
Plaintiff informed and believe and based thereon allege that at all relevant
times Defendant IMERYS TALC AMERICA INC. is a Delaware corporation with its
principal place of business in the State of California. Specifically IMERYS TALC AMERICA
INC. maintains its Head Office and Laboratory at 1732 North First Street Suite 450 San Jose
California 95112.
Plaintiff informed and believe and based thereon alleg that at all relevant
times IMERYS TALC AMERICA INC. is the successor or continuation of Luzenac America
Inc. and IMERYS TALC AMERICA INC. is legally responsible for all liabilities incurred when
it was known as Luzenac America Inc.
Plaintiff informed and believe and based thereon allege that at all relevant
times Defendant IMERYS TALC AMERICA INC. has been in the business of mining and
distributing talcum powder for use in talcum powder based productsincluding the PRODUCTS.
Plaintiff informed and believe and based thereon allege that at all relevant
times the true names or capacities whether individual corporate or otherwise of Defendants
COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
Does 1 through 100 inclusive were unknown to Plaintiff at the time of original filing of the
underlying complaint in this action andtherefore sue said Defendants by such fictitious names.
Plaintiff informed and believe and based thereon allege that at all relevant
times the true names or capacities whether individual corporate or otherwise of Defendants
DOES 1 through 100 inclusive remain unknown to Plaintiff and therefore Plaintiff sues said
Defendants by such fictitious names. Plaintiff is informed and believes and based thereon alleges
that each of the Defendants designated herein by fictitious names is in some manner legally
responsible for the events and happenings herein referred to and caused damages proximately and
foreseeably to Plaintiff as alleged herein.
Plaintiff informed and believe and based thereon allege that at all relevant
times all of said Defendants herein including DOES 1 through 100 inclusive are collectively
referred to herein as Defendants and all acts and omissions of Defendants as alleged herein were
Beverly HillsCalifornia
Attorneys at Law
undertaken by each of the Defendants or said Defendants agents servants employees and/or
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owners acting in the course and scope of its respective agencies services employments and/or
ownerships.
Plaintiff informed and believe and based thereon allege that at all relevant
times all allegations concerning Defendants includes Defendants parents subsidiaries affiliates
divisions franchises partners joint venturers organizational units of any kind predecessors
successors and assigns and their officer directors employees agents representatives and any
and all other persons acting on behalf of Defendants.
Plaintiff informed and believe and based thereon allege that at all relevant
times Defendants and DOES 1 through 100 inclusive and each of them were engaged in the
business of placing Shower to Shower body powder and Johnson & Johnson s Baby Powder
(hereinafter PRODUCTS ) into the stream of commerce by designingmanufacturing marketing
packaginglabeling and/or selling said PRODUCTS to Californiansincluding Plaintiff herein.
Plaintiff is informed and believes and based thereon alleges that at all relevant
times Defendants and DOES 1 through 100 inclusive designed developed patented
manufactured marketed advertised promoted and/or sold the PRODUCTS worldwide and in the
COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
tate of California.
At all relevant times alleged herein beginning in or about Plaintiff NITA
HILL ESCOBEDO purchased the PRODUCTS and used said PRODUCTS on a daily basis in and
around her perineal regions through in or about 2015. While a citizen and resident of the State of
California and a citizen and resident of the County of Ventura Plaintiff purchased the
PRODUCTS and used the PRODUCTS by applying the PRODUCTS to her body in accordance
with the instructions for use that accompanied the PRODUCTS and in a reasonably foreseeable
manner. In or about February 2009 Plaintiff was diagnose with ovarian cancer and underwent
surgery and other treatments for said ovarian cancer. Plaintiff was diagnosed with ovarian cancer
which developed while she resided in the State of California. Plaintiff developed ovarian cancer
and suffered effects and sequelae therefrom while a citizen and resident of the State of California
as a direct and proximate result of the unreasonably dangerous and defective nature of talcum
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Attorneys at Law
powder the main ingredient of the PRODUCTS and Defendants wrongful and negligent conduct
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in the researchdevelopment testing manufactureproductionpromotiondistribution marketing
and sale of the PRODUCTS.
As a direct and proximate result of the injuries alleged herein Plaintiff ha incurred
and will incur medical expenses in the future has endured and will endure pain and suffering and
loss of enjoyment of life and Plaintiff has otherwise been damaged in a personal and pecuniary
nature.
Plaintiff is informed and believe and based thereon allege that all claims in this
action are a direct and proximate result of Defendants and/or their corporate predecessors
negligent willful and wrongful conduct in connection with the design development
manufacture testing packaging promoting marketing distribution labeling and/or sale of the
PRODUCTS.
Plaintiff in this action seeks recovery for damages as a result of developing ovarian
cancer which was directly and proximately caused by such wrongful conduct by Defendants the
unreasonably dangerous and defective nature of the talcum powder the main ingredient of the
PRODUCTSand the attendant effects of developing and suffering from ovarian cancer.
COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
Plaintiff informed and believe and based thereon allege that at all relevant
times alleged herein all Defendants were engaged in the research development manufacture
design testing sale and marketing of PRODUCTS and introduced said PRODUCTS into
interstate commerce with knowledge and intent that such products be sold to consumers in the
State of California.
Venue is proper in this Court because laintiff is informed 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 StreetSuite 450San Jose California 95112.
Plaintiff is a citizen of the State of California and the County of Ventura
purchased the PRODUCTS in the State of California and the County of Ventura used the
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Attorneys at Law
PRODUCTS in the State of California and the County of Ventura and was exposed to the
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PRODUCTS in the State of California and the County of Ventura
The California Superior Court has jurisdiction over all Defendants 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 over it by the California courts consistent with traditional notions of fair play and
substantial justice.
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.
COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
COMMON ALLEGATIONS
The PRODUCTS that are the subject of this action all 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 as the PRODUCTS are
composed almost entirely of talc.
Plaintiff is informed and believes and based thereon alleges at all relevant
times alleged herein a feasible alternative to the PRODUCTS has existed.
Plaintiff is informed and believes and based thereon alleges that Cornstarch is an
organic carbohydrate that is quickly broken down by the body with no known health effects.
Cornstarch powders have been sold and marketed for the same uses with nearly the same
effectiveness.
Plaintiff is informed and believes and based thereon alleges that at all relevant
Beverly HillsCalifornia
Attorneys at Law
times alleged herein Defendants have continually advertised and marketed talc as safe for human
KIESEL LAW
use.
Plaintiff is informed and believes and based thereon alleges that at all relevant
times IMERYS TALC AMERICA INC. (IMERYS) has continually advertised and marketed
talc as safe for human use.
Plaintiff is informed and believes and based thereon alleges that at all relevant
times IMERYS supplied customers with material safety data sheets for talc. These material safety
data sheets are supposed to convey adequate health and warning information to itscustomer
Plaintiff informed and believe and based thereon allege that istorically the
PRODUCT Johnson s Baby Powder has been a symbol of freshness cleanliness and purity.
Plaintiff informed and believe and based thereon allege that at all relevant
times alleged herein the Defendants advertised and marketed this product as the beacon of
freshness and comfort eliminating friction on the skin absorbing excess wetness helping
keep skin feeling dry and comfortable and clinically proven gentle and mild . The Defendants
All allegations regarding actions taken by Imerys Talc also include actions taken while that
entity was known as Luzenac America Inc.
COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
compelled women through advertisements to dust themselves with this product to mask odors. The
bottle of Johnson s Baby Powder specifically targets women by stating For you use every day
to help feel softfresh and comfortable.
Plaintiff informed and believe and based thereon allege that at all relevant
times alleged herein Defendants advertised and marketed the product Shower to Shower as safe
for use by women as evidenced in its slogan A sprinkle a day keeps odor away and through
advertisements such as Your body perspires in more places than just under your arms. Use
SHOWER to SHOWER to feel dry fresh and comfortable throughout the day. And SHOWER
to SHOWER can be used all over your body.
Plaintiff used the PRODUCTS to dust her perineum for feminine hygiene purposes.
This was an intended and foreseeable use of the PRODUCTS based on the advertising marketing
and labeling of the PRODUCTS.
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Attorneys at Law
Plaintiff informed and believe and based thereon allege that the first
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study was conducted that suggested an association between talc and ovarian cancer. This study
was conducted by Dr. W Henderson and others in Cardiff Wales.
Plaintiff informed and believe and based thereon allege that the first
epidemiologic study was performed on talc powder use in the female genital area. This study was
conducted by Dr. Daniel Cramer and others. This study found a 92% increased risk in ovarian
cancer with women who reported genital talc use. Shortly after this study was published Dr.
Bruce Semple of defendant JOHNSON & JOHNSON came and visited Dr. Cramer about his
study. Dr. Cramer advised Dr. Semple that defendants should place a warning on its talcum
powder PRODUCTS concerning the ovarian cancer risks so that women can make an informed
decision about their health.
Plaintiff informed and believe and based thereon allege that since 1982 there
have been approximately twenty seven ) 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 genital talc use in women.
Plaintiff informed and believe and based thereon allege that in 1993 the
COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
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.
Plaintiff informed and believe and based thereon allege that n response to the
United States National Toxicology Program s study the Cosmetic Toiletry and Fragrance
Association (CTFA) formed the Talc Interested Party Task Force (TIPTF). Defendants JOHNSON
OHNSON and JOHNSON & JOHNSON CONSUMER COMPANIES 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
Beverly HillsCalifornia
Attorneys at Law
governmental agencies members of the TIPTF knowingly released false information about the
KIESEL LAW
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.
Plaintiff informed and believe and based thereon allege that on November 10
the Cancer Prevention Coalition mailed a letter to then JOHNSON & JOHNSON C.
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 from Dr. Harlow of 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 14000 women per year die from ovarian
cancer and that this type of cancer is 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 the alternative of corn starch powders or at a minimum place warning information on its
COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
based PRODUCTS about ovarian cancer risk they pose.
Plaintiff informed and believe and based thereon allege that in 1996 the
condom industry stopped dusting condoms with talc due to the health concerns of ovarian cancer.
Plaintiff informed and believe and based thereon allege that in February of
the International Association for the Research of Cancer (IARC) part of the World Health
Organization published a paper whereby they classified perineal use of talc based body powder as
oup 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%. IARC concluded with this Evaluation
There is limited evidence in humans for the carcinogenicity of perineal use of talc based body
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powder. By definition Limited evidence of carcinogenicity means a positive association has
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been observed between exposure to the agent and cancer for which a causal interpretation is
considered by the Working Group to be credible but chance bias or confounding could not be
ruled out with reasonable confidence.
Plaintiff informed and believe and based thereon allege that 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
Plaintiff informed and believe and based thereon allege that in 2006
Defendants vendor Imerys Talc began placing a warning on its Material Safety Data Sheets
(MSDS) it provided to the Johnson & Johnson Defendants regarding the talc it sold to them to be
used in the PRODUCTS. These MSDSs not only provided the warning information about the
IARC classification but also included warning information regarding States Rights to Know
and warning infor ation about the Canadian Government D2A classification of talc as well.
Plaintiff informed and believe and based thereon allege that Defendants had a
COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
duty to know and warn about the hazards associated with the use of the PRODUCTS.
Plaintiff informed and believe and based thereon allege that Defendants
failed to inform consumers customers and end users of the PRODUCTS of a known catastrophic
health hazard associated with the use of its products. In addition the Defendants procured and
disseminated false leading and biased information regarding the safety of the PRODUCTS to
the public and used influence over governmental and regulatory bodies regarding talc.
As a direct and proximate result of the Defendants calculated and reprehensible
conduct Plaintiff suffered catastrophic injuries and damages namely ovarian cancer which
required surger and treatment.
FIRST CAUSE OF ACTION
STRICT LIABILITY FOR FAILURE TO WARN
(Against All Defendants)
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Attorneys at Law
Plaintiff hereby incorporate each of the preceding paragraphs as if fully set forth
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herein
Plaintiff informed and believe and based thereon allege that at all relevant
times alleged herein Imerys Talc mined and sold talc to the Defendants and Defendants then
packaged and sold said talc in the PRODUCTS to consumers owing that consumers of the
PRODUCTS were using it to powder their perineal regions.
Plaintiff informed and believe and based thereon allege that at all relevant
times alleged herein Defendants knew and/or should have known of the unreasonably dangerous
and carcinogenic nature of the talc contained in the PRODUCTS.
Plaintiff informed and believe and based thereon allege 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.
Plaintiff informed and believe and based thereon allege that at all relevant
times alleged herein the Defendants were manufacturing marketing testing promoting selling
and/or distributing the PRODUCTS in the regular course of business.
COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
Plaintiff informed and believe and based thereon allege that at all relevant
times alleged herein Plaintiff used the PRODUCTS to powder her perineal area which is a
reasonably foreseeable use.
Plaintiff informed and believe and based thereon allege 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.
Plaintiff informed and believe and based thereon allege 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
Beverly HillsCalifornia
Attorneys at Law
women to powder their perineal area. Defendants themselves failed to properly and adequately
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warn and instruct Plaintiff as to the risks and benefits of the PRODUCTS given Plaintiff s need
for this information.
Had Plaintiff received a warning that the use of the PRODUCTS would have
significantly increased her risk of ovarian cancer Plaintiff would not have used the same. As a
proximate result of Defendants design manufacture marketing sale and distribution of the
PRODUCTS Plaintiff has been injured catastrophically and ha been caused severe and
permanent pain suffering disability impairment loss of enjoyment of life loss of care comfort
and economic damages.
Plaintiff informed and believe and based thereon allege that at all relevant
times alleged herein Plaintiff cancer 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 warnings Plaintiff ha suffered injuries and damages including but not
limited to conscious pain and sufferingmedical ex penses and lost wages.
Plaintiff informed and believe and based thereon allege that at all relevant
times alleged herein the Defendants products were defective because they failed to contain
COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
warnings and/or instructions and breached express warranties and/or failed to conform to express
factual representations upon which the Plaintiff justifiably relied in electing to use the products.
The defect or defects made the products unreasonably dangerous to those persons such as
Plaintiff who could reasonably be expected to use and rely upon such products. As a result the
defect or defects were a producing cause of the Plaintiff s injuries and damages.
Plaintiff informed and believe and based thereon allege that at all relevant
times alleged herein the Defendants products failed to contain and continue to this day not to
contain adequate warnings and/or instructions regarding the increased risk of ovarian cancer with
the use of their products by women. The Defendants continue to market vertise and expressly
represent to the general public that it is safe for women to use their product regardless of
application. Defendants continue with these marketing and advertising campaigns despite having
scientific knowledge that dates back to the 1960s that their products increase the risk of ovarian
Beverly HillsCalifornia
Attorneys at Law
cancer in women when used in the perineal area.
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SECOND CAUSE OF ACTION
STRICT LIABILITY IN TORT DESIGN DEFECT
(Against All Defendants)
Plaintiff hereby incorporate each of the preceding paragraphs as if fully set forth
herein
Plaintiff informed and believe and based thereon allege that at 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.
Plaintiff informed and believe and based thereon allege that at all relevant
times alleged herein he PRODUCTS manufactured supplied licensed and/or placed into the
stream of commerce by Defendants were defective and unreasonably dangerous in that:
the foreseeable risks far exceeded the benefits associated with the design or
formulation
COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
they contained inadequate warnings or instructions and
they contained dangerous ingredients while feasible safer alternative designs
and ingredients were available.
Plaintiff informed and believe and based thereon allege that at all relevant
times alleged herein he PRODUCTS manufactured supplied licensed and/or placed into the
stream of commerce by Defendants were more dangerous than an ordinary consumer would
expectand more dangerous than other products or procedures available.
Plaintiff informed and belie and based thereon allege that at all relevant
times alleged herein Defendants knew that the PRODUCTS were to be purchased and used
without inspection for defects.
Plaintiff informed and believe and based thereon allege that at all relevant
imes alleged herein the PRODUCTS were and are unsafe for their intended use by reason of
Beverly HillsCalifornia
Attorneys at Law
defects in the design so that they would not safely serve their purpose but would instead expose
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the users of said PRODUCTS to serious injuries.
Plaintiff used the PRODUCTS in a reasonably foreseeable manner.
Plaintiff informed and believe and based thereon allege that at all relevant
times alleged herein Defendants designed the PRODUCTS 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.
As a legal and proximate result of the aforementioned defects in the design of the
PRODUCTSPlaintiff sustained the injuries and damages as alleged herein.
THIRD CAUSE OF ACTION
NEGLIGENCE
(Against All Defendants)
Document Filed Date
August 22, 2018
Case Filing Date
August 22, 2018
Category
Product Liability Unlimited (24)
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Preview
Paul R. Kiesel, State Bar No. kiesel@kiesel.law Melanie Meneses Palmer, State Bar No. 286752 palmer@kiesel.law Cherisse Heidi A. Cleofe, State Bar No. 290152 cleofe@kiesel.law KIESEL LAW LLP 8648 Wilshire Boulevard Beverly Hills, California 90211-2910 Tel: 310-854-4444 Fax: 310-854-0812 Anna Dean Kamins [Pro Hac ice Pending] anna@dpdlawfirm.com DANIEL & ASSOCIATES, LLC 2409 Commerce Street Houston, TX 77003 Tel: 713-589-3539 Fax: 713-481-9884 Attorneys for Plaintiff NITA HILL ESCOBEDO Beverly HillsCalifornia Attorneys at Law KIESEL LAW SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA NITA HILL ESCOBEDO an individual Case No. Plaintiff COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1. STRICT PRODUCT LIABILITY JOHNSON & JOHNSON; JOHNSON & FAILURE TO WARN JOHNSON CONSUMER COMPANIES INC.; 2. STRICT PRODUCT LIABILITY IMERYS TALC AMERICA, INC. f/k/a DESIGN DEFECT LUZENAC AMERICA INC.; and DOES 1 3. NEGLIGENCE through 100, inclusive, 4. NEGLIGENT MISREPRESENTATION Defendants. 5. BREACH OF EXPRESS WARRANTY 6. BREACH OF IMPLIED WARRANTY DECEIT BY CONCEALMENT - CALIFORNIA CIVIL CODE §§ 8. FRAUD COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Plaintiff herein by and through counsel for her causes of action against the Defendants allege as follows: PARTIESJURISDICTION AND VENUE Plaintiff NITA HILL ESCOBEDO is a competent individual over the age of 18 citizen of the United Statesand a resident of Los AngelesCounty in the tate of California. Plaintiff is informed and believe and based thereon allege that at all relevant times Defendant JOHNSON & JOHNSON is a corporation doing business in and authorized to do business in the tate of California and was incorporated in New Jersey in 1887. Plaintiff is informed and believe and based thereon allege that at all relevant times Defendant JOHNSON & JOHNSON maintains an office located at One Johnson & Johnson Plaza New Brunswick New Jersey 08933 as well as several locations within the State of California and has approximately 100 employees worldwide. As stated in JOHNSON & Beverly HillsCalifornia Attorneys at Law JOHNSON S Form10 K Annual Report Pursuant to Section 13 of the Securities Exchange Act of KIESEL LAW 1934 for the fiscal year ended January 3 JOHNSON & JOHNSON S primary focus is on products related to human health and well being. Plaintiff informed and believe and based thereon allege that at all relevant times Defendant JOHNSON & JOHNSON S family of companies includes more than 250 operating companies conducting business in 60 countries of the world and organized into three business segments: ConsumerPharmaceutical and Medical Devices. Plaintiff informed and believe and based thereon allege at at all relevant times the JOHNSON & JOHNSON family of companies includes 121 manufacturing facilities and within the United States eight facilities are used by the Consumer segment. In addition to the manufacturing facilities JOHNSON & JOHNSON maintains numerous offices and warehouses in the United States. Plaintiff informed and believe and based thereon allege that at all relevant times the Consumer segment of the JOHNSON & JOHNSON family of companies includes a broad range of over the counter products including but not limited to Shower to Shower body powder and Johnson & Johnson s Baby Powder. These products are marketed to the general COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL public and sold both to retail outlets and distributors throughout the world. Plaintiff informed and believe and based thereon allege that at all relevant times Defendant JOHNSON & JOHNSON has engaged in substantial continuous economic activity in California including marketing distribution and sale of billions dollars in products to Californians including but not limited to Shower to Shower body powder and Johnson & Johnson s Baby Powder that said activity by Defendant is substantially connected to the Plaintiff s claims as alleged herein. Plaintiff informed and believe and based thereon allege at all relevant times Defendant JOHNSON & JOHNSON CONSUMER COMPANIES INC. was a New Jersey Corporation doing business in the State of California a wholly owned subsidiary of JOHNSON & JOHNSON and engaged in substantial continuous economic activity in California including marketing distribution and sale of billions dollars in products to Californians including but not Beverly HillsCalifornia Attorneys at Law limited to Shower to Shower body powder and Johnson & Johnson s Baby Powder that said KIESEL LAW activity by Defendant is substantially connected to the Plaintiff s claims as alleged herein. Plaintiff informed and believe and based thereon allege that at all relevant times Defendant IMERYS TALC AMERICA INC. is a Delaware corporation with its principal place of business in the State of California. Specifically IMERYS TALC AMERICA INC. maintains its Head Office and Laboratory at 1732 North First Street Suite 450 San Jose California 95112. Plaintiff informed and believe and based thereon alleg that at all relevant times IMERYS TALC AMERICA INC. is the successor or continuation of Luzenac America Inc. and IMERYS TALC AMERICA INC. is legally responsible for all liabilities incurred when it was known as Luzenac America Inc. Plaintiff informed and believe and based thereon allege that at all relevant times Defendant IMERYS TALC AMERICA INC. has been in the business of mining and distributing talcum powder for use in talcum powder based productsincluding the PRODUCTS. Plaintiff informed and believe and based thereon allege that at all relevant times the true names or capacities whether individual corporate or otherwise of Defendants COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Does 1 through 100 inclusive were unknown to Plaintiff at the time of original filing of the underlying complaint in this action andtherefore sue said Defendants by such fictitious names. Plaintiff informed and believe and based thereon allege that at all relevant times the true names or capacities whether individual corporate or otherwise of Defendants DOES 1 through 100 inclusive remain unknown to Plaintiff and therefore Plaintiff sues said Defendants by such fictitious names. Plaintiff is informed and believes and based thereon alleges that each of the Defendants designated herein by fictitious names is in some manner legally responsible for the events and happenings herein referred to and caused damages proximately and foreseeably to Plaintiff as alleged herein. Plaintiff informed and believe and based thereon allege that at all relevant times all of said Defendants herein including DOES 1 through 100 inclusive are collectively referred to herein as Defendants and all acts and omissions of Defendants as alleged herein were Beverly HillsCalifornia Attorneys at Law undertaken by each of the Defendants or said Defendants agents servants employees and/or KIESEL LAW owners acting in the course and scope of its respective agencies services employments and/or ownerships. Plaintiff informed and believe and based thereon allege that at all relevant times all allegations concerning Defendants includes Defendants parents subsidiaries affiliates divisions franchises partners joint venturers organizational units of any kind predecessors successors and assigns and their officer directors employees agents representatives and any and all other persons acting on behalf of Defendants. Plaintiff informed and believe and based thereon allege that at all relevant times Defendants and DOES 1 through 100 inclusive and each of them were engaged in the business of placing Shower to Shower body powder and Johnson & Johnson s Baby Powder (hereinafter PRODUCTS ) into the stream of commerce by designingmanufacturing marketing packaginglabeling and/or selling said PRODUCTS to Californiansincluding Plaintiff herein. Plaintiff is informed and believes and based thereon alleges that at all relevant times Defendants and DOES 1 through 100 inclusive designed developed patented manufactured marketed advertised promoted and/or sold the PRODUCTS worldwide and in the COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL tate of California. At all relevant times alleged herein beginning in or about Plaintiff NITA HILL ESCOBEDO purchased the PRODUCTS and used said PRODUCTS on a daily basis in and around her perineal regions through in or about 2015. While a citizen and resident of the State of California and a citizen and resident of the County of Ventura Plaintiff purchased the PRODUCTS and used the PRODUCTS by applying the PRODUCTS to her body in accordance with the instructions for use that accompanied the PRODUCTS and in a reasonably foreseeable manner. In or about February 2009 Plaintiff was diagnose with ovarian cancer and underwent surgery and other treatments for said ovarian cancer. Plaintiff was diagnosed with ovarian cancer which developed while she resided in the State of California. Plaintiff developed ovarian cancer and suffered effects and sequelae therefrom while a citizen and resident of the State of California as a direct and proximate result of the unreasonably dangerous and defective nature of talcum Beverly HillsCalifornia Attorneys at Law powder the main ingredient of the PRODUCTS and Defendants wrongful and negligent conduct KIESEL LAW in the researchdevelopment testing manufactureproductionpromotiondistribution marketing and sale of the PRODUCTS. As a direct and proximate result of the injuries alleged herein Plaintiff ha incurred and will incur medical expenses in the future has endured and will endure pain and suffering and loss of enjoyment of life and Plaintiff has otherwise been damaged in a personal and pecuniary nature. Plaintiff is informed and believe and based thereon allege that all claims in this action are a direct and proximate result of Defendants and/or their corporate predecessors negligent willful and wrongful conduct in connection with the design development manufacture testing packaging promoting marketing distribution labeling and/or sale of the PRODUCTS. Plaintiff in this action seeks recovery for damages as a result of developing ovarian cancer which was directly and proximately caused by such wrongful conduct by Defendants the unreasonably dangerous and defective nature of the talcum powder the main ingredient of the PRODUCTSand the attendant effects of developing and suffering from ovarian cancer. COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Plaintiff informed and believe and based thereon allege that at all relevant times alleged herein all Defendants were engaged in the research development manufacture design testing sale and marketing of PRODUCTS and introduced said PRODUCTS into interstate commerce with knowledge and intent that such products be sold to consumers in the State of California. Venue is proper in this Court because laintiff is informed 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 StreetSuite 450San Jose California 95112. Plaintiff is a citizen of the State of California and the County of Ventura purchased the PRODUCTS in the State of California and the County of Ventura used the Beverly HillsCalifornia Attorneys at Law PRODUCTS in the State of California and the County of Ventura and was exposed to the KIESEL LAW PRODUCTS in the State of California and the County of Ventura The California Superior Court has jurisdiction over all Defendants 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 over it by the California courts consistent with traditional notions of fair play and substantial justice. 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. COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL COMMON ALLEGATIONS The PRODUCTS that are the subject of this action all 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 as the PRODUCTS are composed almost entirely of talc. Plaintiff is informed and believes and based thereon alleges at all relevant times alleged herein a feasible alternative to the PRODUCTS has existed. Plaintiff is informed and believes and based thereon alleges that Cornstarch is an organic carbohydrate that is quickly broken down by the body with no known health effects. Cornstarch powders have been sold and marketed for the same uses with nearly the same effectiveness. Plaintiff is informed and believes and based thereon alleges that at all relevant Beverly HillsCalifornia Attorneys at Law times alleged herein Defendants have continually advertised and marketed talc as safe for human KIESEL LAW use. Plaintiff is informed and believes and based thereon alleges that at all relevant times IMERYS TALC AMERICA INC. (IMERYS) has continually advertised and marketed talc as safe for human use. Plaintiff is informed and believes and based thereon alleges that at all relevant times IMERYS supplied customers with material safety data sheets for talc. These material safety data sheets are supposed to convey adequate health and warning information to itscustomer Plaintiff informed and believe and based thereon allege that istorically the PRODUCT Johnson s Baby Powder has been a symbol of freshness cleanliness and purity. Plaintiff informed and believe and based thereon allege that at all relevant times alleged herein the Defendants advertised and marketed this product as the beacon of freshness and comfort eliminating friction on the skin absorbing excess wetness helping keep skin feeling dry and comfortable and clinically proven gentle and mild . The Defendants All allegations regarding actions taken by Imerys Talc also include actions taken while that entity was known as Luzenac America Inc. COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL compelled women through advertisements to dust themselves with this product to mask odors. The bottle of Johnson s Baby Powder specifically targets women by stating For you use every day to help feel softfresh and comfortable. Plaintiff informed and believe and based thereon allege that at all relevant times alleged herein Defendants advertised and marketed the product Shower to Shower as safe for use by women as evidenced in its slogan A sprinkle a day keeps odor away and through advertisements such as Your body perspires in more places than just under your arms. Use SHOWER to SHOWER to feel dry fresh and comfortable throughout the day. And SHOWER to SHOWER can be used all over your body. Plaintiff used the PRODUCTS to dust her perineum for feminine hygiene purposes. This was an intended and foreseeable use of the PRODUCTS based on the advertising marketing and labeling of the PRODUCTS. Beverly HillsCalifornia Attorneys at Law Plaintiff informed and believe and based thereon allege that the first KIESEL LAW study was conducted that suggested an association between talc and ovarian cancer. This study was conducted by Dr. W Henderson and others in Cardiff Wales. Plaintiff informed and believe and based thereon allege that the first epidemiologic study was performed on talc powder use in the female genital area. This study was conducted by Dr. Daniel Cramer and others. This study found a 92% increased risk in ovarian cancer with women who reported genital talc use. Shortly after this study was published Dr. Bruce Semple of defendant JOHNSON & JOHNSON came and visited Dr. Cramer about his study. Dr. Cramer advised Dr. Semple that defendants should place a warning on its talcum powder PRODUCTS concerning the ovarian cancer risks so that women can make an informed decision about their health. Plaintiff informed and believe and based thereon allege that since 1982 there have been approximately twenty seven ) 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 genital talc use in women. Plaintiff informed and believe and based thereon allege that in 1993 the COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 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. Plaintiff informed and believe and based thereon allege that n response to the United States National Toxicology Program s study the Cosmetic Toiletry and Fragrance Association (CTFA) formed the Talc Interested Party Task Force (TIPTF). Defendants JOHNSON OHNSON and JOHNSON & JOHNSON CONSUMER COMPANIES 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 Beverly HillsCalifornia Attorneys at Law governmental agencies members of the TIPTF knowingly released false information about the KIESEL LAW 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. Plaintiff informed and believe and based thereon allege that on November 10 the Cancer Prevention Coalition mailed a letter to then JOHNSON & JOHNSON C. 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 from Dr. Harlow of 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 14000 women per year die from ovarian cancer and that this type of cancer is 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 the alternative of corn starch powders or at a minimum place warning information on its COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL based PRODUCTS about ovarian cancer risk they pose. Plaintiff informed and believe and based thereon allege that in 1996 the condom industry stopped dusting condoms with talc due to the health concerns of ovarian cancer. Plaintiff informed and believe and based thereon allege that in February of the International Association for the Research of Cancer (IARC) part of the World Health Organization published a paper whereby they classified perineal use of talc based body powder as oup 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%. IARC concluded with this Evaluation There is limited evidence in humans for the carcinogenicity of perineal use of talc based body Beverly HillsCalifornia Attorneys at Law powder. By definition Limited evidence of carcinogenicity means a positive association has KIESEL LAW been observed between exposure to the agent and cancer for which a causal interpretation is considered by the Working Group to be credible but chance bias or confounding could not be ruled out with reasonable confidence. Plaintiff informed and believe and based thereon allege that 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 Plaintiff informed and believe and based thereon allege that in 2006 Defendants vendor Imerys Talc began placing a warning on its Material Safety Data Sheets (MSDS) it provided to the Johnson & Johnson Defendants regarding the talc it sold to them to be used in the PRODUCTS. These MSDSs not only provided the warning information about the IARC classification but also included warning information regarding States Rights to Know and warning infor ation about the Canadian Government D2A classification of talc as well. Plaintiff informed and believe and based thereon allege that Defendants had a COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL duty to know and warn about the hazards associated with the use of the PRODUCTS. Plaintiff informed and believe and based thereon allege that Defendants failed to inform consumers customers and end users of the PRODUCTS of a known catastrophic health hazard associated with the use of its products. In addition the Defendants procured and disseminated false leading and biased information regarding the safety of the PRODUCTS to the public and used influence over governmental and regulatory bodies regarding talc. As a direct and proximate result of the Defendants calculated and reprehensible conduct Plaintiff suffered catastrophic injuries and damages namely ovarian cancer which required surger and treatment. FIRST CAUSE OF ACTION STRICT LIABILITY FOR FAILURE TO WARN (Against All Defendants) Beverly HillsCalifornia Attorneys at Law Plaintiff hereby incorporate each of the preceding paragraphs as if fully set forth KIESEL LAW herein Plaintiff informed and believe and based thereon allege that at all relevant times alleged herein Imerys Talc mined and sold talc to the Defendants and Defendants then packaged and sold said talc in the PRODUCTS to consumers owing that consumers of the PRODUCTS were using it to powder their perineal regions. Plaintiff informed and believe and based thereon allege that at all relevant times alleged herein Defendants knew and/or should have known of the unreasonably dangerous and carcinogenic nature of the talc contained in the PRODUCTS. Plaintiff informed and believe and based thereon allege 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. Plaintiff informed and believe and based thereon allege that at all relevant times alleged herein the Defendants were manufacturing marketing testing promoting selling and/or distributing the PRODUCTS in the regular course of business. COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Plaintiff informed and believe and based thereon allege that at all relevant times alleged herein Plaintiff used the PRODUCTS to powder her perineal area which is a reasonably foreseeable use. Plaintiff informed and believe and based thereon allege 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. Plaintiff informed and believe and based thereon allege 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 Beverly HillsCalifornia Attorneys at Law women to powder their perineal area. Defendants themselves failed to properly and adequately KIESEL LAW warn and instruct Plaintiff as to the risks and benefits of the PRODUCTS given Plaintiff s need for this information. Had Plaintiff received a warning that the use of the PRODUCTS would have significantly increased her risk of ovarian cancer Plaintiff would not have used the same. As a proximate result of Defendants design manufacture marketing sale and distribution of the PRODUCTS Plaintiff has been injured catastrophically and ha been caused severe and permanent pain suffering disability impairment loss of enjoyment of life loss of care comfort and economic damages. Plaintiff informed and believe and based thereon allege that at all relevant times alleged herein Plaintiff cancer 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 warnings Plaintiff ha suffered injuries and damages including but not limited to conscious pain and sufferingmedical ex penses and lost wages. Plaintiff informed and believe and based thereon allege that at all relevant times alleged herein the Defendants products were defective because they failed to contain COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL warnings and/or instructions and breached express warranties and/or failed to conform to express factual representations upon which the Plaintiff justifiably relied in electing to use the products. The defect or defects made the products unreasonably dangerous to those persons such as Plaintiff who could reasonably be expected to use and rely upon such products. As a result the defect or defects were a producing cause of the Plaintiff s injuries and damages. Plaintiff informed and believe and based thereon allege that at all relevant times alleged herein the Defendants products failed to contain and continue to this day not to contain adequate warnings and/or instructions regarding the increased risk of ovarian cancer with the use of their products by women. The Defendants continue to market vertise and expressly represent to the general public that it is safe for women to use their product regardless of application. Defendants continue with these marketing and advertising campaigns despite having scientific knowledge that dates back to the 1960s that their products increase the risk of ovarian Beverly HillsCalifornia Attorneys at Law cancer in women when used in the perineal area. KIESEL LAW SECOND CAUSE OF ACTION STRICT LIABILITY IN TORT DESIGN DEFECT (Against All Defendants) Plaintiff hereby incorporate each of the preceding paragraphs as if fully set forth herein Plaintiff informed and believe and based thereon allege that at 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. Plaintiff informed and believe and based thereon allege that at all relevant times alleged herein he PRODUCTS manufactured supplied licensed and/or placed into the stream of commerce by Defendants were defective and unreasonably dangerous in that: the foreseeable risks far exceeded the benefits associated with the design or formulation COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL they contained inadequate warnings or instructions and they contained dangerous ingredients while feasible safer alternative designs and ingredients were available. Plaintiff informed and believe and based thereon allege that at all relevant times alleged herein he PRODUCTS manufactured supplied licensed and/or placed into the stream of commerce by Defendants were more dangerous than an ordinary consumer would expectand more dangerous than other products or procedures available. Plaintiff informed and belie and based thereon allege that at all relevant times alleged herein Defendants knew that the PRODUCTS were to be purchased and used without inspection for defects. Plaintiff informed and believe and based thereon allege that at all relevant imes alleged herein the PRODUCTS were and are unsafe for their intended use by reason of Beverly HillsCalifornia Attorneys at Law defects in the design so that they would not safely serve their purpose but would instead expose KIESEL LAW the users of said PRODUCTS to serious injuries. Plaintiff used the PRODUCTS in a reasonably foreseeable manner. Plaintiff informed and believe and based thereon allege that at all relevant times alleged herein Defendants designed the PRODUCTS 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. As a legal and proximate result of the aforementioned defects in the design of the PRODUCTSPlaintiff sustained the injuries and damages as alleged herein. THIRD CAUSE OF ACTION NEGLIGENCE (Against All Defendants)