Challenges Filed To Admissibility of Expert Testimony on Link Between Talc Powder and Cancer

Parties involved in thousands of talcum powder cancer lawsuits have filed motions to exclude certain expert witness testimony proposed by the other side; and how the federal court rules on these challenges will have a major impact on the claims and whether individuals cases can proceed to trial.

Johnson & Johnson currently faces more than 10,500 Baby Powder lawsuits and Shower-to-Shower lawsuits filed throughout the federal court system, each raising similar allegations that consumers were not adequately warned about serious health risks associated with their talc-based products, which have been linked to the development of ovarian cancer and mesothelioma.

Given similar questions of fact and law raised about the link between talc powder and cancer, all federal cases are consolidated for pretrial proceedings as part of a multidistrict litigation (MDL), which is centralized before U.S. District Judge Freda L. Wolfson in the District of New Jersey.

On May 7, parties filed a Plaintiffs’ brief (PDF) and a Defendants’ brief (PDF), each laying out their competing positions on challenges under the federal Daubert standard to the admissibility of expert witness testimony, and whether the opinions reached by the experts are sufficiently reliable and based on sound scientific principals to allow juries to consider the evidence.

Judge Wolfson is expected to hear oral arguments on the challenges this summer, and the outcome of those hearings will have a major impact on the federal litigation.

Johnson & Johnson’s brief opens with the declaration that they intend to ask the court to exclude the opinion of all 22 of the plaintiffs’ experts, based primarily on their stance on general causation. In other words, the company wants any expert who thinks talcum powder can cause ovarian cancer, or that asbestos could be in talcum powder, to be excluded based solely on the fact that they believe so.

The brief also attempts to dismiss numerous studies published in recent decades that have linked talc powder to ovarian cancer risks, arguing that they are were not based on sound science and that plaintiffs should not even be permitted by the court to present the findings to juries.

“Although the scientific community has studied the posited link between perineal talc use and ovarian cancer for half a century, no study has claimed to establish a causal relationship between the two (or that the body of evidence collectively has established such a relationship),” the Defendants’ brief states. “At best, the association is weak or modest in some case-control studies and non-existent in the cohort studies. This inconsistency strongly suggests that the studies were affected by recall bias or confounding.”

In contrast, the Plaintiffs’ brief points out that even if the experts’ conclusions are incorrect, that is for a jury to decide, which is the entire point of having competing expert testimony.

“In other words, it is not the trial court’s task to decide whether an expert’s conclusions are correct. The trial court is not empowered ‘to determine which of several competing scientific theories has the best province’,” the Plaintiffs’ brief notes. “As long as the expert’s testimony falls within ‘the range where experts may reasonably differ,’ then it is up to the jury to decide among the competing views.”

Opposition briefs to the Daubert motions must be filed on or before May 29, with oral arguments later this summer.

If the court determines that plaintiffs have sufficiently reliable evidence about the link between talcum powder and cancer to proceed to trial under federal rules, it is expected that a small group of “bellwether” cases will be set for trial in the U.S. District Court for the District of New Jersey.

In prior cases permitted to go before juries under state court rules, Johnson & Johnson has been hit with a number of massive verdicts, including punitive damages designed to punish the company for withholding information about the talc powder cancer risk from consumers for decades.

Last year, a Missouri jury returned a verdict of $4.7 billion in damages for 22 women diagnosed with ovarian cancer, and the huge damage awards in that case and others have provided a strong signal about the extent of liability Johnson & Johnson may face if thousands of federal claims are permitted to go before juries.

If the experts are allowed to testify and Johnson & Johnson fails to negotiate talcum powder settlements or another resolution for the litigation, large numbers of cases may be remanded back to different federal district courts for individual trial dates nationwide in the future.