A federal judge tentatively dismissed a talcum powder lawsuit despite Johnson & Johnson's pleas not to toss the case.

At a hearing Monday, U.S. District Judge George Wu of the Central District of California said he would dismiss the case, brought under California's Safe Drinking Water and Toxic Enforcement Act of 1986, commonly referred to as Proposition 65. Johnson & Johnson had fought the move, accusing plaintiffs lawyer Mark Lanier, of the Lanier Law Firm in Houston, of purposely stalling the case, which had been set for trial for Oct. 15.

“To be brief, the court sees no 'plain legal prejudice' that defendants would suffer as a result of a dismissal, notwithstanding defendants' argument to that effect,” Wu wrote in a tentative order issued ahead of Monday's hearing.

Judge George H. Wu

But he granted attorney fees and costs to Johnson & Johnson.

“Given the length of this case and amount of work defendants have understandably put into it, to allow plaintiffs to dismiss the case without prejudice at this stage would otherwise be unjust,” he wrote. “The only question would be the appropriate amount.”

He set a status conference for Aug. 19.

Wu's dismissal would allow Lanier to refile the case.

“Justice can't be rushed,” Lanier said in an emailed statement after the hearing. “We need the right parties and we will get the right result. J&J will get their day in court.”

Johnson & Johnson lawyer Peter Bicks, a partner at Orrick, Herrington & Sutcliffe's New York office, said in an emailed statement: “Johnson and Johnson was looking forward to having the court rule that Johnson & Johnson baby powder is safe and does not require a cancer warning as the FDA has twice decided. Plaintiffs dropped their case to avoid a ruling on the merits and Johnson & Johnson is gratified that the court ordered plaintiffs to pay our legal fees.”

The case is separate from the thousands of lawsuits brought by people alleging they got ovarian cancer or mesothelioma from a lifetime of using Johnson & Johnson's talcum powder products. Juries, including those in California, have hit Johnson & Johnson with several verdicts, but the company also has won some. Last year, a jury in St. Louis awarded $4.7 billion to 22 women, represented by Lanier, who alleged they got ovarian cancer from using Johnson & Johnson's talcum powder products.

Prop 65 requires businesses to provide a “clear and reasonable warning” before exposing consumers to carcinogens and other toxins, as defined in California.

Lanier's Prop 65 suit, originally filed in Los Angeles County Superior Court, sought to slap Prop 65 labels on Johnson & Johnson's baby powder and Shower to Shower products, plus obtain restitution and civil penalties of $2,500 per day for each violation.

Last month, Lanier's firm filed a motion to voluntarily dismiss the case, citing newly discovered evidence and a need to add another defendant, Claire's, a retailer whose cosmetic products were found by the U.S. Food and Drug Administration in March to contain asbestos. Months earlier, his firm had asked to add another defendant, Valeant Pharmaceuticals North America LLC, to the case.

Johnson & Johnson, however, countered that plaintiffs simply wanted to avoid “an inevitable adverse ruling on the merits.” The company raised questions about Lanier's expert, who also has testified in personal injury cases, and noted that four out of the five plaintiffs who sat for depositions did not even know they were parties in a lawsuit. Some had never heard of Prop 65.

In court, Elyse Echtman, another New York partner at Orrick representing Johnson & Johnson, said granting dismissal would give the Lanier Law Firm a chance to “redo their expert reports” and “find someone else as a figurehead.”

“This case has really been driven by the lawyers,” she told the judge. Her comment evoked a response from Michael Akselrud, an associate at the Lanier Law Firm in Los Angeles, saying he disagreed with her assessment of the case.

Wu said he would not dismiss the case until the parties agreed to the amount of fees and costs. He also cautioned Johnson & Johnson's lawyers not to inflate their request for compensation.

“Defendants should be clear, however, the court will take a skeptical view of any signs of over-lawyering that is sometimes the case for large law firms engaging in big-ticket litigation,” he wrote in his tentative ruling.