Lawyers Urge Talcum Powder MDL Judge To Reconsider Decision Requiring Full Refiling of Daubert Challenges

Plaintiffs argue that more talcum powder cancer plaintiffs are likely to die while their cases are delayed yet again by Johnson & Johnson’s tactics.

Plaintiffs’ lawyers are asking the U.S. District Judge presiding over the talcum powder lawsuit MDL to reconsider a recent decision to hold a second set of hearings on the admissibility of expert testimony, which was previously decided by the Court several years ago, before Johnson & Johnson engaged in a failed bankruptcy attempt that has delayed all progress in the litigation.

Johnson & Johnson faces about 54,000 Baby Powder lawsuits and Shower-to-Shower lawsuits, each involving similar allegations that users were not adequately warned about the risk of developing ovarian cancer, mesothelioma and other injuries.

The litigation began in 2016, however, following massive jury awards returned in cases that went to trial several years ago, the manufacturer decided to initiate a controversial talcum powder bankruptcy scheme in 2021, as part of an attempt to force any settlement for the cases through the U.S. bankruptcy system.

Although courts eventually rejected the bankruptcy, since Johnson & Johnson faces no financial distress and has sufficient assets to cover the liability for failing to warn about the talcum powder cancer risks, the move delayed the litigation for more than two more years. However, just as the plaintiffs were pushing for the first bellwether trials to go before juries, Johnson & Johnson has further delayed the proceedings, by convincing the talcum powder MDL judge to allow a rehearing on the admissibility of expert witness testimony that was decided by the previous judge overseeing the litigation.

Given similar questions of fact and law raised in complaints filed throughout the federal court system, coordinated pretrial proceedings were established for the talcum powder litigation in 2016, centralizing the cases before U.S. District Judge Freda Wolfson in the District of New Jersey.

In July 2019, Judge Wolfson held a series of Daubert hearings, to evaluate whether the proposed expert witness testimony was sufficiently reliable under federal law standards to allow a jury to consider as evidence. After additional studies were released in early 2020 and a Baby Powder recall was announced in late 2019, due to the discovery of asbestos particles in some talcum powder bottles, Judge Wolfson ruled that plaintiffs’ expert testimony was admissible.

During the lengthy delay caused by Johnson & Johnson’s bankruptcy maneuver, where the company attempted to shift all liability it faced to a subsidiary that immediately declared bankruptcy, Judge Wolfson retired and management of the talcum powder litigation was transferred to U.S. District Judge Michael A. Shipp.

New Talcum Powder Lawsuit MDL Daubert Hearings

Shortly after the bankruptcy plan was rejected by the Court, Johnson & Johnson announced plans to challenge plaintiffs’ expert witness testimony again in August 2023, despite Judge Wolfson’s previous rulings.

Judge Shipp granted the request late last month, giving the manufacturer a chance to again challenge the plaintiffs’ expert testimony, despite calls by plaintiffs’ attorneys to reject what they saw as additional delaying tactics. As the lawyers pointed out at that time, a number of plaintiffs have already died while waiting for their day in court, and further delays are not justified.

In response, the Plaintiffs’ Steering Committee (PSC) filed a motion (PDF) earlier this month, asking Judge Shipp to reconsider the decision, saying the order is not supported by the record before the court and “is in clear error.”

“The parties should not have to relitigate previously decided issues that are now the law of the case simply because time has passed,” the motion stated. “No party appealed Judge Wolfson’s April 27, 2020 Daubert Opinion, which properly applied the preponderance of evidence standard as required by Rule 702 and its 2023 amendments. There is no sound basis for the Court to order, sua sponte, an unprecedented full refiling of Daubert motions.”

Defendants filed an opposition to the motion (PDF) on April 22, noting that changes in evidentiary rules and new science justify the new hearings.

Two days later, on April 24, the PSC sent a letter (PDF) to the court, requesting permission to file a 10-page rebuttal to the defendants’ response, which was granted late last week.

The dispute comes as plaintiffs’ lawyers and Johnson & Johnson are preparing a group of ovarian cancer lawsuits for potential jury trials, which were initially expected to begin later this year. However, if the Court decides to reconsider prior Daubert rulings, it will cause substantial additional delays getting claims before juries.

While the results of these individual bellwether trials will not be directly binding on other claims, the average talcum powder lawsuit payouts awarded by juries are expected to greatly influence the potential settlement values that Johnson & Johnson could be required to pay to avoid the need for each individual case to go to trial in the coming years.