Judge Evaluating Reliability of Expert Witness Testimony on Talcum Powder Ovarian Cancer Risk

The U.S. District Judge presiding over more than 13,000 Baby Powder lawsuits and Shower-to-Shower lawsuits brought by women nationwide is expected to determine in the coming weeks whether expert witness testimony linking talcum powder to ovarian cancer is sufficiently reliable to allow claims to go before juries in the federal court system.

Following seven days of live testimony during “Daubert” hearings in July, the parties filed written statements this week, summarizing their respective positions on whether various expert opinions on the link between talc and ovarian cancer meet the required federal standards for the witnesses to testify at trials.

Johnson & Johnson faces claims that it has known for decades that talcum powder may increase the risk of ovarian cancer, yet failed to warn consumers and continued to market their products for use among adult women for feminine hygiene.

Given common questions of fact and law presented in the claims pending throughout the federal court system, the talcum powder litigation has been centralized before U.S. District Judge Freda L. Wolfson in the District of New Jersey, who is presiding over the coordinated discovery and pretrial proceedings in the claims.

Prior to scheduling the first federal court trials, Judge Wolfson is considering challenges to the admissibility of proposed expert witness testimony, to determine whether the opinions expressed are sufficiently reliable under the federal Daubert standard to allow juries to hear the cases.

In a brief (PDF) filed by Johnson & Johnson on October 7, the manufacturer urged Judge Wolfson to exclude testimony from experts plaintiffs chose to present general causation opinions, indicating that the “methods” used to reach the opinions were unscientific and unreliable.

In a separate brief (PDF) filed the same day, the plaintiffs’ steering committee (PSC) outlined why the opinions clearly meet the required standard, indicating that the experts are highly qualified in their respective fields and arrived at their opinions through well-accepted methodologies.

The plaintiffs indicate that Johnson & Johnson’s challenges are nothing more than disagreement about conclusions drawn from the body of scientific evidence, which is not at issue during Daubert hearings, and is ultimately a question for the trier of fact.

“Instead, the Court need only determine whether the opinions are proffered by sufficiently qualified experts, who apply reliable methodology in reaching their conclusions, and whose testimony will assist the trier of fact,” the plaintiffs’ brief notes. “The PSC’s experts readily meet this standard.”

Johnson & Johnson has rested much of their legal defense on the hope that plaintiffs’ expert witnesses will be excluded under the federal standard, after a number of state court juries have previously hit the company with massive damage awards after being presented with the evidence at trial.

If the manufacturer is unable to disqualify plaintiffs expert witnesses in the federal court system, it is expected that Judge Wolfson will schedule a series of “bellwether” cases for early trial dates, to gauge how juries respond to certain evidence and testimony that is presented in the federal litigation.

While Johnson & Johnson has maintained that they intend to defend the claims at trial, there will be substantial pressure on the manufacturer to consider negotiating talcum powder cancer settlements for women diagnosed with ovarian cancer, or it could face massive liability from individual juries at trial in U.S. District Courts nationwide in the coming years.