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After failing to exclude plaintiffs’ expert witnesses from testifying at trial during federal talcum powder lawsuits, Johnson & Johnson has taken the unusual step of asking the U.S. District Judge presiding over the litigation to assign “court-approved” experts to assist jurors in determining whether talc contained in Johnson’s Baby Powder causes ovarian cancer.
Johnson & Johnson currently faces roughly 20,000 Baby Powder lawsuits filed by women nationwide, each involving similar allegations that exposure to talc and asbestos particles contained in the popular products resulted in the development of ovarian cancer and other injuries.
Following coordinated discovery in the federal litigation, the judge presiding over the litigation recently cleared the way for individual cases to proceed to trial, after finding that plaintiffs have presented sufficiently reliable expert witness testimony for the claims to go before juries. As a result, the parties are now preparing a small group of representative claims for early trial dates, which are designed to help gauge how juries will respond to certain evidence and testimony that will be repeated throughout the claims.
In a letter (PDF) sent to the Court on August 12, Johnson & Johnson asked for permission to file a motion which would call for the appointment of “independent” experts to help the jurors understand scientific issues in the litigation, since each side will be presenting “diametrically opposite scientific positions” about whether talc use can cause ovarian cancer.
In addition, the manufacturer also indicates a panel of experts should be appointed to answer questions about whether scientific evidence supports plaintiffs’ claims that talcum powder can cause ovarian cancer; whether the plaintiffs’ biological mechanism theory works; and whether it is possible to link an individual talcum powder cancer diagnosis to a particular plaintiff.
Plaintiffs have already voiced opposition to the request, indicating in a response letter (PDF) sent last Friday that the proposal raises significant constitutional concerns, since it is the jury’s role to answer the questions Johnson & Johnson wants to shift to a court-appointed panel.
“Defendants are not looking for experts to explain the mechanical operation of a widget or some esoteric operation of econometrics. The questions they want a panel of experts to answer—wrapped by the imprimatur of this Court—go to the heart of the dispute in these cases,” the letter states. “Juries hear competing expert evidence on complex issues in practically every courtroom in America—the practice is at the heart of our civil justice system. Empaneling experts at trial to resolve these contested questions would fundamentally call into question the fairness and constitutionality of the proceedings.”
The plaintiffs also indicate that appointing a group of “independent” experts is essentially an attempt to upend the detailed review recently conducted by the Court, when evaluating the reliability of the expert witness testimony proposed by each side under the federal Daubert standard.
In April, the U.S. District Judge presiding over the litigation issued a 141-page opinion that concluded the evidence and opinions were based on sufficiently sound scientific findings to be presented to juries.
“Even Defendants admit that their proposed ‘procedure is not widely used’,” according to the plaintiffs response. “That is being generous. In fact, Defendants cannot point to a factually analogous case in the last quarter century that has employed anything remotely like the procedure Defendants seek.”
The request comes after Johnson & Johnson experienced a series of major setbacks in the litigation over the past few months, and faces looming trials before juries, which have hit the manufacturer with millions in damage awards at the state court level.
Although Johnson & Johnson has maintained that it intends to defend the safety of talcum powder at trial, the manufacturer remove talc-based Baby Powder from the market in North America in May 2020, raising speculation that it was attempting to limit the liability due to the continued use of the products by adult women.
If Johnson & Johnson refuses to negotiate talcum powder settlements for women diagnosed with cancer, or establish that it can reliably prevail at trial, the company will soon face thousands of individual cases being remanded to U.S. District Courts nationwide for separate trial dates in the coming years.