Direct Filing of Talcum Powder Cases Permitted in Federal MDL

The U.S. District Judge recently appointed to preside over all federal talcum powder lawsuits has approved the direct filing of new cases directly into the multidistrict litigation (MDL), which will streamline the initial proceedings for claims being filed on behalf of women nationwide who allege they developed ovarian cancer following long-term use of Johnson & Johnson talc-based powders.

There are a growing number of Johnson’s Baby Powder cases and Shower-to-Shower cases being filed nationwide, each involving similar allegations that the manufacturer knew about the ovarian cancer risk linked to talcum powder use around the genitals, yet continued to market their products to adult women to help maintain “personal freshness.”

In October 2016, the U.S. Judicial Panel on Multidistrict Litigation (JPML) established coordinated pretrial proceedings, indicating that cases filed throughout the federal court system will be centralized before U.S. District Judge Freda L. Wolfson in District of New Jersey to reduce duplicative discovery into common issues, avoid conflicting pretrial rulings and serve the convenience of the parties, witnesses and the courts.

In a case management order (PDF) issued on February 7, Judge Wolfson indicates that future talcum powder cases may now be directly filed into the MDL federal court in New Jersey, which will avoid delays associated with transferring claims from different U.S. District Courts nationwide and promote judicial efficiency.

Women can now file their cases through a Short Form Complaint, which adopts allegations contained in a Master Long Form Complaint filed last month.

Judge Wolfson stated that the defendants shall not assert any objection of improper venue for cases that should have been filed outside of the District of New Jersey, as each case will be remanded back to the venue where it should have originally been filed if talcum powder settlements or another resolution for the cases is not reached following the MDL proceedings.

Talcum Powder Litigation Status

As part of the MDL, it is expected that Judge Wolfson will establish a bellwether trial process, where a small group of talcum powder ovarian cancer cases will be prepared for early trial dates. This process is designed to help the parties gauge how the federal courts will rule on various pretrial motions, and how juries may respond to certain evidence and testimony that is likely to be repeated throughout the litigation.

In addition to cases filed in the federal court system, there are currently several thousand lawsuits pending in various state court systems, with most pending in Missouri.

Last year, at least three state court cases went to trial in St. Louis, each resulting in massive verdicts after juries found that Johnson & Johnson failed to adequately warn about the cancer risk with talcum powder.

Evidence presented in those state court trials included company documents that suggested Johnson & Johnson was aware of the potential link between talcum powder and ovarian cancer since the 1970s. However, even as recently as 1992, some documents indicate that the company specifically targeted sales towards women who were high users of talcum powder, without ever warning them of the possible cancer risks.

In recent months, Johnson & Johnson has been pushing for cases outside of Missouri state court to move forward, calling for a quick MDL bellwether process for the Baby Powder and Shower-to-Shower lawsuits.