Talcum Powder Cancer Causation Hearings Have High Stakes for Johnson & Johnson in Federal Litigation

The U.S. District Judge presiding over all federal talcum powder cancer lawsuits is continuing to consider evidence designed to gauge which expert witnesses will be permitted to testify before juries at trial, as part of a closely watched causation hearing that could have a substantial impact on thousands of claims filed against Johnson & Johnson.

The manufacturer is attempting to argue that all of the plaintiffs’ expert witnesses should be disqualified, resting much of their legal defense strategy on the hope that plaintiffs will be left without means to establish that their cancer was caused by Johnson’s Baby Powder, Shower-to-Shower or other talcum powder products.

In state court cases that have previously been permitted to reached a jury, Johnson & Johnson has been hit with billions in damage awards for failing to warn that side effects of talcum powder may result in ovarian cancer, mesothelioma and other injuries.

More than 12,500 Baby Powder lawsuits and Shower-to-Shower lawsuits are currently pending in the federal court system, where the litigation is centralized before U.S. District Judge Freda L. Wolfson in the District of New Jersey, and no cases have yet been scheduled for trial.

On Monday, the first day of talcum powder cancer causation hearings were held, as part of a pretrial procedure where Judge Wolfson is evaluating whether proposed expert witness testimony is sufficiently reliable under the federal Daubert standard to be presented to juries. If Johnson & Johnson is able to disqualify all of plaintiffs’ expert witnesses, it may effectively kill the litigation. However, if the company fails in the effort, it could face massive liability from a string of trials that will be scheduled to go before juries.

Each of the complaints raise similar allegations that Johnson & Johnson has known for decades that talc contained in their products may increase the risk of ovarian cancer, mesothelioma and other injuries. When prior juries have been permitted to consider evidence in state court cases, they have often returned large punitive damage awards designed to punish Johnson & Johnson for its reckless conduct.

Last year, a Missouri jury returned a landmark $4.7 billion verdict for 22 women diagnosed with ovarian cancer, and analysts have suggested that the case and other verdicts demonstrate that juries do not appear to find Johnson & Johnson’s trial defense strategy credible.

If Judge Wolfson determines that the causation opinions provided by the plaintiffs are sufficiently reliable and scientifically sound, it is expected that she will schedule a series of “bellwether” cases for trial in the federal court system. However, if Johnson & Johnson fails to negotiate talcum powder cancer settlements or otherwise resolve the litigation, Judge Wolfson will likely start remanding large numbers of cases back to different U.S. District Courts nationwide for individual trial dates, which could expose Johnson & Johnson to substantial liability.