Lawyers Ordered To Engage in Talcum Powder Settlement Talks in MDL

A court-appointed mediator will meet with lawyers for Johnson & Johnson and women diagnosed with ovarian cancer from talcum powder, to discuss the potential for settlement before a series of early bellwether trials.

A federal judge has appointed a mediator to oversee potential settlement talks in tens of thousands of Baby Powder lawsuits and Shower-to Shower lawsuits filed against Johnson & Johnson over the failure to warn about the risk of ovarian cancer from talcum powder.

More than 90,000 women are now pursuing talcum powder ovarian cancer claims, each raising similar allegations that Johnson & Johnson knew its raw talc ingredients may be contaminated with asbestos, yet failed to warn women about the potential cancer risks associated with applying the product around their genitals for feminine hygiene purposes.

Although the first talcum powder cancer lawsuits were filed more than a decade ago, Johnson & Johnson has spent years delaying the first cases from going to trial in the federal court system, by attempting to force the litigation into the U.S. bankruptcy courts. 

The company has now tried three separate bankruptcy maneuvers to settle the claims for a fraction of their value, all of which were rejected by federal judges. Most recently, a proposed $9 billion bankruptcy settlement plan was denied in March, clearing the way for the litigation to move forward toward trial once again.

To help the parties gauge how juries are likely to respond to certain evidence and testimony that will be repeated throughout the claims, the parties have been preparing the first bellwether cases for trial in the U.S. District Court for the District of New Jersey, where U.S. District Judge Michael Shipp is overseeing coordinated pretrial proceedings.

While Johnson & Johnson has vowed to defend the lawsuits at trial, plaintiffs took steps last month to move talcum powder settlement talks forward. In a motion filed with the court, they asked U.S. District Judge Michael Shipp to appoint attorney Fouad Kurdi as a mediator to help facilitate negotiations.

Although Johnson & Johnson did not formally oppose the request, its attorneys indicated they believed mediation would be premature and unlikely to succeed at this stage.

Nevertheless, U.S. Magistrate Judge Rukhsanah L. Singh granted the motion, issuing a court order (PDF) on July 2, confirming Kurdi’s appointment and outlining the expectations for both sides to participate in good faith.

“The Mediation Parties will participate in the Mediation in good faith. The Mediation Parties, either personally or through a representative with authority to negotiate and settle the Mediation Issues, will make reasonable efforts to attend all sessions scheduled by the Mediator to which they are invited to attend by the Mediator.”

–Order (I) Appointing Mediator and (II) Establishing Mediation Protocols

In addition to requesting that the court order the parties to engage in settlement talks in the talcum powder lawsuits, plaintiffs also filed a motion asking the court to establish a census for all filed and unfiled claims, which would provide an updated summary of all pending claims, including details about the types of cancer each claimant has been diagnosed with.

However, in a ruling (PDF) issued just one day before the mediation order, Special Master Joel Schneider denied the request. Schneider, a retired judge helping oversee the multidistrict litigation (MDL), said a new census was unnecessary because that information has already been required from all claimants since September 2023.

“The parties’ focus and resources should be dedicated to the ongoing Daubert proceedings and upcoming bellwether trials. Distracting the parties from this effort will hamper rather than foster the efficient management of this MDL.”

–Special Master Order #28

These Daubert proceedings will play a pivotal role in shaping the trajectory of the litigation. Under federal law, Daubert hearings are used to determine whether the parties’ expert witnesses meet the standards for reliability and relevance required to testify before a jury. The outcome of these hearings will significantly influence what scientific and medical evidence is ultimately presented at trial, particularly regarding the link between talcum powder use and various forms of cancer.

Once the Daubert challenges are resolved, the litigation will proceed to the bellwether trial phase. These early test cases are designed to reflect key issues in the broader litigation and help both sides gauge how juries may respond. Although the outcomes are not binding, they often influence settlement talks. If no agreement is reached, the court may begin remanding cases to federal courts nationwide for individual trials.