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Lawyers in Talcum Powder Cancer Litigation Discussed Next Steps with MDL Judge

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After a recent court ruling determined that thousands of talcum powder cancer lawsuits can move forward in the federal court system, lawyers met with the U.S. District Judge presiding over the litigation this week, to discuss the next steps to preparing cases for trial.

Johnson & Johnson faces more than 16,500 Baby Powder lawsuits and Shower-to-Shower 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.

Given common questions of fact and law presented in the talcum powder litigation, all cases brought throughout the federal court system have been centralized before Judge Freda L. Wolfson in the District of New Jersey, for coordinated discovery and pretrial rulings as part of an MDL, or multidistrict litigation.

Late last month, Judge Wolfson cleared the way for the cancer lawsuits to proceed, after she rejected an attempt by Johnson & Johnson to exclude plaintiffs’ expert witness testimony, indicatingthat the evidence and opinions offered were sufficiently reliable under the federal Daubert standard to present the case to juries.

On Wednesday, lawyers in the talcum powder litigation met with Judge Wolfson for a status conference, and discussed competing proposals about how to best move the cases forward, after the Court previously bifurcated the proceedings and delayed any discovery on case-specific issues until after ruling on the admissibility of general causation expert testimony.

According to a joint status report (PDF) submitted by the parties earlier this week, both sides expressed an interest in moving the cases towards trial expeditiously. While plaintiffs called for a case-specific discovery process that would prepare for trial dates in representative cases, the manufacturer urged the court to set trial dates as soon as possible, with limited additional discovery permitted.

“With the issuance of the Court’s Daubert Opinion on April 27, 2020, the case now proceeds to the liability stage of these MDL proceedings,” the Plaintiffs’ Steering Committee (PSC) stated. “During this second stage, the PSC needs to further develop the factual record relating to Defendants’ liability for the injuries caused by J&J’s talcum powder products over the past decades.”

Lawyers for Johnson & Johnson disagreed over whether much, if any, further discovery was needed in the cases, indicating that a “massive” amount of discovery has been completed across other jurisdictions where cases have already proceeded to trial, including many of the same lawyers as in the MDL.

In complex product liability litigation, where large numbers of plaintiffs are presenting claims involving nearly identical allegations, it is common for the court to establish a “bellwether” process, where the parties select a small group of representative claims for early trial dates, which are designed to help gauge how juries may respond to certain evidence and testimony that will be repeated throughout large numbers of claims.

Following any bellwether trials, if the parties are unable to reach talcum powder settlements to resolve large numbers of claims brought by women diagnosed with ovarian cancer, the Court may later remand each individual lawsuits back to U.S. District Courts nationwide for individual trial dates in the future.

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