Framework for Talcum Powder Science Day Before New MDL Judge Proposed by Parties

In response to a request made by the U.S. District Judge recently appointed to preside over all talcum powder cancer lawsuits, parties involved in the litigation have submitted competing proposals for a “Science Day”, which will likely be held in November or December to bring the Court up to speed on the background of the litigation, as well as scientific, medical and liability issues that will arise in the claims.

Active litigation is now underway once again against Johnson & Johnson in more than 60,000 Baby powder lawsuits and Shower-to-Shower lawsuits brought throughout the federal court system, each involving similar allegations that asbestos particles in the talc-based products caused users to develop ovarian cancer, mesothelioma, and other injuries.

Following massive jury awards returned in cases that went to trial several years ago, the manufacturer decided to initiate a controversial talcum powder bankruptcy scheme in 2021, as part of an attempt to force any settlement for the cases through the U.S. bankruptcy system. This led to a long delay in the litigation before the attempt was recently rejected the courts, allowing active pretrial proceedings to resume in the talcum powder MDL (multi-district litigation).

Given similar questions of fact and law raised in complaints filed throughout the federal court system, coordinated pretrial proceedings were established for the talcum powder litigation in 2016, centralizing the cases before U.S. District Judge Freda Wolfson in the District of New Jersey. However, during a two year delay in all proceedings while Johnson & Johnson attempted to force the cases through the bankruptcy system, Judge Wolfson retired, and management of the litigation was transferred to U.S. District Judge Michael A. Shipp.

Parties Propose Talcum Powder Science Day Schedule

Following a status conference earlier this month, Judge Shipp called on parties to put together a plan for a talcum powder “Science Day” to be held later this year, and the parties outlined their respective plans in a letter (PDF) sent to the Court on September 15.

The letter indicates that the Science Day presentations should total no more than six hours in length, with each side having up to three hours to explain the science involved in talcum powder litigation to the Court. However, the parties could not agree on when the Science Day should be held. Plaintiffs have suggested November 16-17, November 28-31, and December 11-14, while defendants instead recommend any day the week of October 16 or October 26, or any day the week of December 18. Defendants also suggest it could be held sometime in January.

Both parties say they would have key people unavailable during many of the dates suggested by the other side. In addition, the parties appeared to also differ in what they think the scope of this upcoming Science Day should entail.

“The purpose of this presentation is to educate and inform the Court through an overview of the procedural background of the litigation and the scientific, medical, and liability factual record,” plaintiffs indicated in the letter. “Judge Wolfson’s Daubert decision, the decisions of state courts throughout the country, including the appellate decisions of the New Jersey Court of Appeals, the Missouri court of Appeals, and the California Court of Appeals, make clear that the preponderance of the scientific evidence supports a causal relationship between the genital use of talcum powder and ovarian cancer.”

In response, defendants said that the main focus of the presentations should be just about the science, but indicated that plaintiffs should be allowed to use their time during the presentation as they wish.

The presentations are not part of the official record in the case, or subject to cross examination. However, information presented may guide the Court in any future rulings or motions about evidence to be presented in the talcum powder cancer lawsuits, including decisions about which expert witness testimony may be presented to juries.

What the Court learns could influence its decisions on future pretrial motions and when bellwether trials can go before juries, which will help gauge the average talcum powder lawsuit payout individual claimants may be eligible to receive.