Plaintiff Andrew Curtin sued Johnson & Johnson and Pecos River Talc in federal court in Maine, alleging his late wife Cynthia Cartwright died from mesothelioma caused by her longtime use of J&J baby powder. The defendants moved for partial summary judgment, arguing that elements of certain claims cannot be met and that other claims are time-barred. The court ruled against the defendants on all but one claim.

The parties agree that Cartwright was diagnosed with mesothelioma in February 2017, died of it in April 2017, and her diagnosis supports a finding of asbestos exposure; further, that she used J&J’s baby powder through her adult life in her shoes, from a few times a week in cold seasons to every day during warm ones. The lawsuit was filed in April 2024.

The plaintiff and his daughter both testified that they remember seeing the J&J label on the bottles used by the decedent but not any other writing such as “PUREST PROTECTION.” They had no knowledge about the decedent’s preference for J&J baby powder, and the decedent was never deposed prior to her death to preserve her testimony.

The court granted summary judgment for the defendants solely on a claim for negligent misrepresentation. Under Maine law, negligent misrepresentation is limited as a commercial tort involving pecuniary loss under sections 310 and 311 of the Restatement (2nd) of Torts. Because the decedent suffered a personal injury from a product causing physical harm, not from a business transaction, the claim was not legally viable.

The defendants argued that the plaintiff’s wrongful‑death claim was time-barred by the statute of limitations. The court acknowledged that in this case, a survival claim would clearly proceed under ordinary tort principles, while a wrongful death claim is subject to stricter statutory timing rules. However, the court allowed the wrongful death claim to proceed because it is derivative of Cartwright’s underlying claims, fraudulent concealment by the defendants could toll the statute, and the nature of the questions of fact made summary judgment inappropriate.

With respect to claims for breach of express warranty, fraudulent misrepresentation, and fraudulent concealment, the court held that circumstantial evidence in the case may establish reliance and causation, and evidence of mass marketing in the record may create warranties and misrepresentations.

The court also held that because the underlying liability claims remained in the case, the defendants’ conduct could be viewed as reckless or willfully indifferent to safety, there was a genuine issue for trial on punitive damages.

Read the full decision here.