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As the U.S. District Judge presiding over thousands of Baby Powder lawsuits and Shower-to-Shower lawsuits continues to evaluate the strength of expert witness opinions about the ovarian cancer risks associated with the Johnson & Johnson talcum powder products, plaintiffs have submitted a letter pointing out new evidence that strengthens their case.
Johnson & Johnson currently faces more than 15,000 product liability complaints in the federal court system, each involving similar allegations that the manufacturer failed to warn that talcum powder can cause ovarian cancer following regular application of the powder around the genitals of adult women.
Given common questions raised in the cases, the litigation has been centralized before U.S. District Judge Freda L. Wolfson in the District of New Jersey, for coordinated discovery and pretrial proceedings.
Prior to scheduling the first federal court trials, Judge Wolfson is considering challenges to the admissibility of proposed expert witness testimony, to determine whether the opinions about the link between talc and ovarian cancer are sufficiently reliable under the federal Daubert standard to allow juries to hear the cases.
Although presentations were made over several days in July 2019, the Court has not yet issued rulings on the issue.
In a February 11 letter (PDF) submitted to Judge Wolfson, the Plaintiffs’ Steering Committee pointed out new scientific evidence that they say strengthens the evidence of talcum powder’s ovarian cancer risk.
Recently the International Agency for the Research on Cancer (IARC), a part of the World Health Organization, updated its position about the toxicity of talc. The IARC previously declared talc to be a possible carcinogen in 2010, even when it does not contain asbestos, pointing to a number of studies linking talc exposure to ovarian toxicity. The letter also points to new findings of the FDA’s Interagency Working Group on Asbestos in Consumer Products (IWGACP), which issued preliminary recommendations last month on testing methodologies which should be used when searching for asbestos in talc.
The working group warned that any detectable level of asbestos, or even asbestos-like fibers that do not qualify as asbestos, should be considered a risk. The working group noted that asbestos and minerals that look like asbestos likely cause similar health problems, and that making a distinction between them is irrelevant. All are classified as elongated mineral particles (EMPs).
The letter points out that the working group’s methodologies were the same as those used by some plaintiffs’ expert witnesses, which plaintiffs hope will bolster their case with Judge Wolfson on the validity of their testimony.
Johnson & Johnson has rested much of their legal defense on the hope that plaintiffs’ expert witnesses will be excluded under the federal standard, after a number of state court juries have previously hit the company with massive damage awards after being presented with the evidence at trial.
If the manufacturer is unable to disqualify plaintiffs expert witnesses in the federal court system, it is expected that Judge Wolfson will schedule a series of “bellwether” cases for early trial dates, to gauge how juries respond to certain evidence and testimony that is presented in the federal litigation.
While Johnson & Johnson has maintained that they intend to defend the claims at trial, there will be substantial pressure on the manufacturer to consider negotiating talcum powder cancer settlements for women diagnosed with ovarian cancer, or it could face massive liability from individual juries at trial in U.S. District Courts nationwide in the coming years.