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Talc Powder Daubert Hearings Conclude After Days Of Testimony in MDL

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The U.S. District Judge presiding over all federal talcum powder lawsuits has concluded a series of “Daubert” hearings, which included seven days of expert witness testimony about the ovarian cancer risk linked to talc, as part of a process where the Court is determining whether the opinions are sufficiently reliable to be presented to federal juries.

There are currently more than 12,500 Baby Powder lawsuits and Shower-to-Shower lawsuits pending against Johnson & Johnson and other defendants in the federal court system, each involving similar allegations that the manufacturer failed to adequately warn women that they may face an increased risk of ovarian cancer following years of dusting their body with the talc-based products.

Given common questions of fact and law presented in the claims, the talcum powder litigation has been centralized before U.S. District Judge Freda L. Wolfson in the District of New Jersey, who is presiding over coordinated discovery and pretrial proceedings in the claims.

Prior to setting the first cases for trial in the federal court system, Judge Wolfson scheduled a series of hearings to evaluate whether proposed expert witness testimony each side intends to introduce is sufficiently reliable under the federal Daubert standard to be presented to juries.

The first day of hearings began on July 22, and the last day of testimony was considered on July 31. According to court minutes (PDF), the hearings involved examining the testimony and methodology of Doctors Ghassan Saed, William Edward Longo, Anne McTiernan, Gregory Diette, Arch Carson and Daniel Clarke-Pearson for the plaintiffs, and Dr. Cheryl Sanez for the defendants.

Following the conclusion of live testimony, Judge Wolfson ordered the parties to each submit written statements up to 80 pages within 45 days after the transcripts from the hearings become available.

If Johnson & Johnson is able to disqualify all of plaintiffs’ expert witnesses, it may effectively kill the litigation, leaving women without support to establish that their cancer diagnosis was caused by talc. However, if the company fails in the effort, it could face massive liability from a string of trials that will be scheduled to go before juries throughout the federal court system.

Each of the complaints brought by women nationwide raise similar allegations that Johnson & Johnson has known for decades that talc contained in their products may increase the risk of ovarian cancer, mesothelioma and other injuries. Rather than warning consumers, Johnson & Johnson has continued to market the powder for use among adult women for “personal freshness”, which thousands of women now claim resulted in their ovarian cancer diagnosis.

In state court cases that have previously been permitted to reached a jury, Johnson & Johnson has been hit with billions in damage awards for failing to warn about side effects of talc powder, including massive punitive damage awards designed to punish the manufacturer for recklessly disregarding the health and safety of consumers.

Last year, a Missouri jury returned a landmark $4.7 billion verdict for 22 women diagnosed with ovarian cancer, and analysts have suggested that the case and other verdicts demonstrate that juries do not appear to find Johnson & Johnson’s trial defense strategy credible.

If Judge Wolfson determines that the causation opinions provided by the plaintiffs are sufficiently reliable and scientifically sound, it is expected that she will schedule a series of “bellwether” cases for trial in the federal court system. However, if Johnson & Johnson fails to negotiate talcum powder cancer settlements or otherwise resolve the litigation, Judge Wolfson will likely start remanding large numbers of cases back to different U.S. District Courts nationwide for individual trial dates, which could expose Johnson & Johnson to substantial liability.

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