Mark Lanier, of The Lanier Law Firm, at The National Law Journal's Elite Trial Lawyers Awards Ceremony on Oct. 5, 2018, at the Bellagio Hotel and Casino in Las Vegas.

Plaintiffs attorney Mark Lanier has moved to dismiss a lawsuit that sought to place cancer warnings on Johnson & Johnson's baby powder products in California.

But, there's a catch: Johnson & Johnson doesn't want him to.

Lanier, of The Lanier Law Firm in Houston, filed his case last year on behalf of seven California residents who claim they or their loved ones were misled about the safety of Johnson & Johnson's baby powder and Shower to Shower products, which both contain asbestos, a known carcinogen in California. He brought the lawsuit under California's Safe Drinking Water and Toxic Enforcement Act of 1986, commonly referred to as Proposition 65.

Trial is set for Oct. 15.

Last month, Lanier's firm filed a motion to voluntarily dismiss the case, citing newly discovered evidence. In opposing the move, Johnson & Johnson accused Lanier's firm of purposely stalling the case.

“The Lanier Law Firm commenced this action as a transparent tactical maneuver to improve their litigation position in personal injury actions that they have pending against defendants across the country,” wrote Johnson & Johnson attorney Elyse Echtman, a partner in the New York office of Orrick, Herrington & Sutcliffe, in a July 8 filing. “Now, with a fully developed record that shows what plaintiffs have known all along—that the products are safe—they ask the court to voluntarily dismiss so that they can try again.”

Lanier and Michael Akselrud, an associate at the Lanier Law Firm in Los Angeles, did not respond to requests for a comment.

A hearing is set for July 29.

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 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.

After Johnson & Johnson removed the case to federal court, U.S. District Judge George Wu of the Central District of California refused to remand or dismiss the lawsuit. He also pushed for a quick discovery schedule and set the case for trial.

On April 18, plaintiffs sought to amend their complaint to add another defendant: Valeant Pharmaceuticals North America LLC. They claimed new discovery revealed that Valeant had purchased the Shower to Shower line of products in 2012, but Johnson & Johnson-labeled bottles remained on store shelves. Further, they wrote, both companies used the same Chinese mines to source talc that contained asbestos.

“The purpose of this motion is not to cause delay but to ensure that justice is done and that all parties involved in the violations of Proposition 65 are in front of the court in one case,” Akselrud wrote.

Both Johnson & Johnson and Valeant, which moved to intervene in the case, fought the amendment. Valeant, now called Bausch Health US LLC, which is represented by Daniell Newman, a shareholder at Greenberg Traurig in Los Angeles, said the plaintiffs' explanation for adding it to the case “strains credulity” and is “disingenuous.”

“The motion appears to be a thinly veiled pretext for plaintiffs to buy more time for discovery and adjourn the trial date,” Echtman wrote. “Any scheduling adjustment that might reasonably accommodate the addition of a new defendant would severely disrupt the orderly progress of this case.”

She noted that plaintiffs already knew about Johnson & Johnson's sale of Shower to Shower, noting that Lanier's firm even subpoenaed Valeant in October in a personal injury case over talcum powder.

Wu set a hearing on the request for July 1. But on June 18, plaintiffs moved to dismiss the case so that they could add yet another defendant, Claire's, a retailer whose cosmetic products were found by the U.S. Food and Drug Administration in March to contain asbestos.

“In short, this action does not encompass all appropriate products, parties or claims,” Akselrud wrote. “Additional time is necessary to identity the proper parties and claims, if any, to be asserted against those parties.”

He said he planned to refile the case.

Johnson & Johnson, however, countered that plaintiffs simply wanted to avoid “an inevitable adverse ruling on the merits.”

“Plaintiffs apparently are dissatisfied with the record that they developed and strategic decisions that they made, which is why they seek court permission for a complete do-over,” Echtman wrote. “Defendants have devoted substantial resources to the defense of this case and are ready for a binding merits determination in their favor that no cancer warning should be put on their products.”

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.

“He's in front of a federal judge who is seeing that he's got a bunch of clients who didn't know they were parties in a lawsuit, which shows it was completely lawyer manufactured,” said another Johnson & Johnson attorney, Peter Bicks, also in Orrick's New York office, about Lanier and his firm's suit. “They didn't know a lawsuit got filed on their behalf. They never heard of Prop 65. That can be problem in any court, particularly a federal court.”

In a response filed Monday, Akselrud brushed off concerns about the plaintiffs' lack of knowledge about the case, citing a “plethora of evidence” that Johnson & Johnson's talcum powder products contained asbestos and a criminal investigation by the U.S. Department of Justice that Bloomberg publicized last week.

“And recent judgments in personal injury cases involving J&J's products and the FDA's warnings about asbestos in cosmetic products demonstrates the merits of plaintiffs' case,” he wrote.