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The U.S. District Judge presiding over all federal talcum powder cancer lawsuits has rejected an unusual request by Johnson & Johnson, which sought to have a court-appointed expert assist the jury in upcoming bellwether trials, indicating it was not warranted and would “usurp” the independent role of the jurors in weighing evidence.
Johnson & Johnson currently faces roughly 20,000 Baby Powder lawsuits filed by women nationwide, each involving similar allegations that exposure to talc and asbestos particles contained in the popular products resulted in the development of ovarian cancer and other injuries.
Following coordinated discovery in the federal litigation, the judge presiding over the litigation recently cleared the way for individual cases to proceed to trial, after finding that plaintiffs have presented sufficiently reliable expert witness testimony for the claims to go before juries. As a result, the parties are now preparing a small group of representative claims for early trial dates, which are designed to help gauge how juries will respond to certain evidence and testimony that will be repeated throughout the claims.
On August 12, Johnson & Johnson took the unusual step of requesting that the court appoint “independent” experts, which would help the jurors understand the scientific issues at play in the litigation and evaluate the competing opinions presented by plaintiffs’ and defendants’ experts.
The manufacturer also suggested that a panel of experts should be appointed to answer questions about whether scientific evidence supports plaintiffs’ claims that talcum powder can cause ovarian cancer; whether the plaintiffs’ biological mechanism theory works; and whether it is possible to link an individual talcum powder cancer diagnosis to a particular plaintiff.
Plaintiffs strongly urged the court to reject the request, arguing that it raises significant Constitutional concerns.
In a letter order (PDF) issued by the Court on September 9, Judge Wolfson denied the manufacturers request, indicating that adding neutral court-appointed experts would interfere with the “independent assessment of the evidence by the jurors.”
Judge Wolfson said the court has already cleared competent experts from both sides to testify at trial and the issues are not so complex as to require such an extreme measure, indicating it is unclear how court-appointed experts would meaningfully help.
“In fact, the appointments may have a deleterious effect on trial,” she wrote. “In that regard, appointing these so-called ‘neutral’ experts has the potential result of suggesting a ‘correct’ answer to the jury on certain key issues of causation, instead of the jurors independently weighing the testimony of experts proffered by the parties. Such a result would clearly be prejudicial.”
Judge Wolfson also noted the creation and appointment of such a group of experts would needlessly delay the litigation, which already involves thousands of women nationwide who have been waiting years for their day in court.
The request was largely viewed as a last-ditch “hail Mary” attempt by Johnson & Johnson, which has suffered a series of major setbacks in the litigation over the past few months, with looming federal trials, where juries may return massive damage awards similar to this previously returned at the state court level.
Although Johnson & Johnson has maintained it intends to defend the safety of talcum powder at trial, the manufacturer removed talc-based Baby Powder from the market in North America in May 2020, raising speculation it was attempting to limit the liability due to the continued use of the products by adult women.
If Johnson & Johnson refuses to negotiate talcum powder settlements for women diagnosed with cancer, or establish it can reliably prevail at trial, the company will soon face thousands of individual cases being remanded to U.S. District Courts nationwide for separate trial dates in the coming years.