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Following a string of major losses before trial judges and at the appellate level, Johnson & Johnson will soon face large numbers of individual trials nationwide, unless it changes its prior refusal to make settlement offers for women diagnosed with cancer following use of Johnson’s Baby Powder.
After failing to exclude plaintiff’s expert witnesses under the federal Daubert standard, a group of 1,000 cases are being prepared for a bellwether trial process in the federal court system. In addition, following recent rulings in the Pennsylvania and Missouri state court system, large numbers of additional cases could soon be set for trial in those venues, each involving allegations that Johnson’s Baby Powder caused ovarian cancer after years of use for feminine hygiene.
Only a handful of cases have gone before juries in recent years, with several resulting in massive verdicts after evidence was presented regarding Johnson & Johnson’s failure to warn about the link between talcum powder and cancer. However, the manufacturer has continued to refuse to consider Baby Powder settlements, instead resting most of it’s legal defense on pending appeals and the argument that plaintiffs’ expert witnesses would not be permitted to testify under federal evidentiary standards.
There are currently about 20,000 Baby Powder lawsuits and Shower-to-Shower lawsuits pending nationwide, each involving similar allegations that exposure to talc and asbestos particles contained in the popular products resulted in the development of ovarian cancer, mesothelioma and other injuries.
Most of the cases are currently pending in the federal court system, where the talcum powder litigation has been centralized before U.S. District Judge Freda L. Wolfson in the District of New Jersey, for coordinated discovery and pretrial rulings as part of an MDL, or multidistrict litigation.
While Johnson & Johnson argued that the cases should be dismissed since plaintiffs’ expert witness testimony about the link between talc and cancer was not sufficiently reliable, that position was rejected by Judge Wolfson in April, clearing the way for individual talcum powder cases to proceed to trial in the federal court system.
A similar decision was reached last month in Pennsylvania state court, where a judge determined that the arguments about the reliability of plaintiff’s expert witness testimony should be put before juries when evaluating the claims.
In the federal court system, Judge Wolfson has now randomly selected a group of 1,000 cases, which will go through a bellwether discovery process in preparation for a series of trial dates. While the outcome of these cases will not be binding on other plaintiffs, they are designed to help the parties gauge how juries are likely to respond to evidence and testimony that will be repeated throughout the litigation.
Johnson & Johnson has already been hit with several massive verdicts in earlier state court trials, including a $4.7 billion verdict to a group of 22 women that went to trial together in Missouri in July 2018, as well as at least five separate verdicts ranging between $55 million and $417 million in cases that went before juries in 2016 and 2017.
While the manufacturer has expressed confidence that the verdicts would be overturned on appeal, Johnson & Johnson was delivered a devastating blow last month when a Missouri appeals court upheld $2.1 billion of the damages awarded in July 2018, outlining that there was overwhelming evidence that could reasonably lead the jury to determine that the company disregarded the safety of consumers despite their knowledge that talc in Johnson’s Baby Powder may cause ovarian cancer.
More than three years ago investors noted that early losses in the litigation signaled that the manufacturer’s defense of talcum powder lacks credibility at trial, suggesting that Johnson & Johnson’s liability may exceed $34 billion.
Following the more recent developments this year, with the company running out of options to avoid trial dates being set in large numbers of cases, the pressure to negotiate Baby Powder settlements for women left with ovarian cancer is likely to increase in the coming months and years.
Similar circumstances recently led to Bayer reaching a $10 billion settlement agreement to resolve Roundup lawsuits, after a string of trial losses over claims the weed killer can cause non-Hodgkins lymphoma suggested that the company was unable to defend the safety of their product in court.