Plaintiffs lawyers have asked an appeals court to revive the only class action in federal court brought over an alleged link between Johnson & Johnson's baby powder and ovarian cancer.

Unlike the thousands of cases that have landed double-digit verdicts for women alleging they got ovarian cancer from prolonged use of Johnson & Johnson's talcum powder products, the class action claimed that consumers suffered from economic injuries when they relied on the company's marketing, which made no mention of known health risks. On July 14, U.S. District Judge Freda Wolfson of New Jersey, who is overseeing all the Johnson & Johnson talcum powder cases in federal court, dismissed the class action for lack of standing. On Jan. 5, plaintiffs lawyers filed their opening brief before the U.S. Court of Appeals for the Third Circuit, relying on its October 18 ruling in Cottrell v. Alcon Labs that reversed Wolfson on standing in a class action brought over eye drops.

“What happened was she didn't have the benefit of the Third Circuit's ruling in Cottrell when she ruled on the talc case,” said Timothy Blood of San Diego's Blood, Hurst & O'Reardon, lead plaintiffs attorney in the talc class action. “So she approached it in the same way as the eye drops case.”

Johnson & Johnson, which is due to file its response brief on March 2, is being represented in the case by O'Melveny & Myers partner Allen Burton in New York. Johnson & Johnson spokeswoman Carol Goodrich declined to comment.

The class action is one of two originally filed over Johnson & Johnson's baby powder. It was brought on behalf of California consumers. In 2015, U.S. District Judge Troy Nunley of the Eastern District of California dismissed the case, which plaintiffs amended. In 2016, the U.S. Judicial Panel on Multidistrict Litigation transferred the case to multidistrict litigation in New Jersey. On Sept. 28, Blood agreed to dismiss the second class action, brought on behalf of Illinois consumers, in light of Wolfson's order. But he said the California appeal, if successful, could open the door for consumers nationwide to pursue a case.

In her order dismissing the amended complaint, Wolfson found that the plaintiff, Mona Estrada, hadn't proved she was economically injured based on three different theories of damages. On appeal, plaintiffs lawyers claim Wolfson inappropriately considered the damages theories despite the fact that plaintiffs attorneys weren't necessarily relying on them and, moreover, were pursuing injunctive relief.

They also relied on Cottrell, a 2-1 March 6 ruling that split with the U.S. Court of Appeals for the Seventh Circuit in a similar case.

“The Third Circuit said the district court erred in analyzing what potential damages theories might be,” Blood said, referring to Cottrell. “You look to see if the person has an alleged injury in fact. If the person has, the person can proceed with a lawsuit in federal court, and the issue of what damages theories exist is left for another day.”