Will the Talc Powder Daubert Ruling Force J&J to the Settlement Table?
Case Number 3:16-md-02738
U.S. District Court of the District of New Jersey
U.S. District Judge Freda L. Wolfson
In a long-awaited decision released Monday April 27, 2020, Judge Wolfson dealt a setback to Johnson & Johnson allowing plaintiffs’ experts to testify that J&J’s baby powder contains asbestos and talc powder can cause ovarian cancer. The 141-page opinion partially granted and partially denied J&J’s motion to exclude the testimony of all the experts put forth by the plaintiffs, which would have essentially terminated the multidistrict litigation (MDL).
U.S. District Judge Freda L. Wolfson ruled that plaintiff’s experts met the Daubert standard which requires expert testimony to have “sufficient scientific support.” Specifically, the ruling upheld that an oncologist and an epidemiologist can testify as to their belief that using talc powder in the genital area can cause ovarian cancer in women.
The ruling raises an important strategic question for Johnson & Johnson as they face what is sure to be an ugly and very public battle, defending against accusations of regulatory manipulation, paid endorsements in medical studies and scientific journals, false advertising claims and general bad conduct spanning more than 40 years. To avoid the reputation-damaging publicity bellweather trials are sure to bring, J&J may decide to enter settlement discussions with the plaintiffs’ bar. Settlement costs are projected to be anywhere from $3 to $5 billion for the ovarian cancer docket. The mesothelioma cases could drive that number above $10 billion.
The fact that no plaintiff’s experts were excluded suggests Judge Wolfson found certain validity in the expert opinions on causation and other factors. Wolfson has a reputation for being conservative in her rulings where science and facts are questionable.
In the ruling, Judge Wolfson did support J&J’s position denying testimony that women can get ovarian cancer from inhaling talc powder. In further support of J&J, the decision excluded testimony by microscopist William Longo about the use of polarized light microscopy to link talc powder to asbestos. However, Longo will be allowed to testify he found asbestos in samples of J&J’s talc powder using transmission electron microscopy. Judge Wolfson also outright denied the plaintiffs’ motion to exclude the three expert witnesses J&J plans to use during trials.
The eight-day Daubert hearing was originally held in July 2019. In the long-awaited opinion released Monday, Judge Wolfson wrote:
“THE EXPERTS, BOTH AT THE DAUBERT HEARING AND IN THEIR EXPERT REPORTS, PROVIDED GOOD GROUNDS FOR THEIR DECISIONS TO PLACE SIGNIFICANT WEIGHT ON THE STRENGTH OF ASSOCIATION FACTOR. DEFENDANTS HAVE NOT PRESENTED ANY COMPELLING GROUNDS FOR THE COURT TO FIND OTHERWISE.”
JUDGE FREDA L. WOLFSON
The plaintiffs’ steering committee is co-chaired by Leigh O’Dell of Beasley Allen and Michelle Parfitt of Ashcraft & Gerel LLP. Christopher Placitella of Cohen Placitella & Roth serves as plaintiffs’ liaison counsel for the MDL.
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