Plaintiffs Oppose Appointment of Retired Talcum Powder Judge To Address Daubert Disputes and Motions in MDL

Following a status conference last week before the federal judge recently appointed to preside over all talcum powder lawsuits, plaintiffs have raised objections to the special appointment of a retired judge that previously handled the MDL, indicating that because she is now a partner at a law firm that represented Johnson & Johnson, it is not appropriate for her to address Daubert disputes and motions that may arise.

Johnson & Johnson faces more than 60,000 Baby powder lawsuits and Shower-to-Shower lawsuits filed throughout the federal court system, each involving similar allegations that asbestos particles in the talc-based products caused users to develop ovarian cancer, mesothelioma, and other injuries.

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. This led to a long delay in the litigation before the attempt was recently rejected the courts, allowing active pretrial proceedings to resume in the talcum powder MDL (multi-district ligitation).

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.

Following a series of Daubert hearings in late 2019, involving challenges to the admissibility of certain expert witnesses proposed by each side, Judge Wolfson rejected attempts by Johnson & Johnson to exclude the plaintiffs’ experts, allowing the litigation to move forward to trial. However, during a two year delay in all proceedings while Johnson & Johnson attempted to force the cases through the bankruptcy system, Judge Wolfson retired, and management of the litigation was transferred to U.S. District Judge Michael A. Shipp.

Court Considering Whether to Entertain Additional Daubert Challenges

Judge Shipp held a status conference last week, after plaintiffs urged the court to move the talcum powder cancer cases forward quickly, and not allow Johnson & Johnson to relitigate issues already decided by Judge Wolfson years ago.

In a court order (PDF) issued on September 7, Judge Shipp asked the parties to file correspondence setting forth their positions on the appointment of Judge Wolfson for the limited purposes of addressing any remaining Daubert-related disputes and motions challenging the admissibility of expert testimony.

Although attorneys for Johnson & Johnson indicated that they have no objection, the plaintiffs’ steering committee submitted a letter (PDF) on September 8, objecting to the appointment of Judge Wolfson due to ethical issues raised by her new employment.

“(T)he PSC’s position is that applicable law precludes Judge Wolfson’s appointment due to her role as a partner at the Lowenstein Sandler law firm, local counsel to Johnson & Johnson in the LTL bankruptcy, and the PSC cannot consent to her appointment,” the letter states.

The plaintiffs leadership urged Judge Shipp to decide any further issues, to the extent the Court determines issues are unresolved

Talcum Powder Lawsuit Science Day Planned

To help bring Judge Shipp up to speed on complex scientific and medical issues that will come up in the litigation, the order issued last week also calls for parties to meet and propose three potential dates for a “Science Day” on talcum powder cancer risks by September 15.

Such proceedings typically involve non-adversarial presentations by expert witnesses or parties, which are intended to educate the court about issues and concepts which will come up during the proceedings.

The presentations are not part of the official record in the case, or subject to cross examination. However, information presented may guide the Court in any future rulings or motions about evidence to be presented in the talcum powder cancer lawsuits, including decisions about which expert witness testimony may be presented to juries.

What the Court learns could influence its Daubert decisions on expert witness testimony and whether the bellwether trials can proceed.

While the outcome of these individual trials will not affect other cases, the verdicts are likely to have significant influence on the value of any talcum powder cancer settlement Johnson & Johnson may be required to pay to avoid the need for tens of thousands of cases to be remanded back to federal courts nationwide for trial in the coming years.