Johnson and Johnson remains hopeful that a recently amended rule on expert testimony and new scientific approaches will lead to a weakening of plaintiff attorneys’ argument that the use of J&J’s talc powder increases cancer risks.
The New Jersey-based pharmaceutical company is dealing with tens of thousands of lawsuits filed as part of multidistrict litigation (MDL) alleging the use of J&J’s baby powder is linked to ovarian cancer. The cases have been filed by plaintiffs nationwide.
In May, J&J announced a proposal to resolve 99.75% of pending talc lawsuits filed against the company and its affiliates in bankruptcy court. The plan would pay ovarian claimants about $6.5 billion over 25 years, according to the American Tort Reform Association.
Despite the efforts to achieve a settlement, talc-related cases continue to be filed in California. Last November, Los Angeles County filed a lawsuit against J&J, alleging that its talc-containing products have caused cancer and mesothelioma among county residents. The county also alleges J&J singled out minority women in the promotion of the products.
And in July, an Oakland jury found that J&J owed $18.8 million to a California man who filed a lawsuit alleging that his exposure to talc since childhood led to the development of mesothelioma in tissues surrounding his heart. In that case, the jury found the company negligent for manufacturing a defective product and not warning consumers about potential hazards of asbestos particles in the powder.
But J&J remains optimistic about New Jersey District Judge Michael Shipp’s finding in March that changes in the Federal Rule of Evidence and new science to evaluate the talc cases will be a sea change in how plaintiffs’ expert testimony will be reviewed in court.
“The court correctly recognized the exigent need to re-examine the ‘junk science’ the mass tort plaintiffs bar has funded to fuel the baseless talc claims against Johnson & Johnson,” Erik Haas, J&J’s worldwide vice president of litigation, said in a statement emailed to the Southern California Record. “The appellate courts of this and other states have recently and repeatedly rejected as flawed and fabricated the opinions of the purported ‘experts’ bought and paid for by the plaintiffs bar, and the evidence recently revealed has shown the opinions were deliberately designed to defame and deceive.”
A previous judge who handled the MDL in New Jersey found that plaintiffs’ experts’ testimony was allowed under the 1993 U.S. Supreme Court opinion in Daubert v. Merrell Dow Pharmaceuticals. Those experts concluded that asbestos particles in the talc products caused a higher ovarian cancer risk in women who used the powder.
“Further, the determinations by U.S. health agencies have only served to solidify the decades of medicine and science that support Johnson & Johnson’s positions,” Haas said. “It therefore is timely and appropriate to shine a judicial spotlight on the methodology and means that yielded these opinions.”
In J&J’s tally of jury trials about the talc issue, the majority have concluded that the company’s products were not the cause of plaintiffs’ cancer. In other cases, judges have dismissed meritless cases, while many large jury verdicts have been overturned on appeal, according to the company.
J&J discontinued the sale of Johnson’s Baby Powder in the United States and Canada in 2020. The company maintains that decades of scientific tests have shown its talc products neither contain asbestos nor cause cancer.
Plaintiffs’ attorneys and their expert witnesses have argued that J&J’s talc products contained carcinogenic asbestos, asbestiform fibers and asbestiform talc. And the company failed to warn consumers about the health risk despite being aware of it, they allege.