In August, 2020, a New Jersey Appellate Court revived two individual talc lawsuits that were filed in 2014, by women who alleged that Johnson & Johnson talc products caused them to develop ovarian cancer. Two years after the lawsuits were filed, they were tossed by a now-retired Superior Court judge, who according to Law360.com, at the time, ruled that the plaintiff’s testimony suffered from “narrowness and shallowness” of scientific inquiries and evidence.
However, a three-judge Appellate Court panel ruled that the judge improperly made credibility determinations about expert witnesses.
“The trial judge was called upon to assess whether the opinions were the product of reliable data and employed methodologies accepted by the scientific community,” the three-judge Appellate Division panel wrote. “Instead, he selected defendants’ scientific methodologies over plaintiffs’, a process well beyond the gatekeeping function, and which resulted in an abuse of discretion.”
This past Friday, the New Jersey Supreme Court denied Johnson & Johnson a review of the Appellate Court’s decision, meaning the two lawsuits from 2014 will proceed.
An attorney representing both plaintiffs told Law360 via email that “The legal team is happy for the brave women it represents, and added that J&J “finally did the right thing” when it took the talcum powder off store shelves. The attorney also stated that Johnson and Johnson should “do the right thing again [and] compensate these women and put closure on all of this.”
As of now, there is no date set for the two trials.
Despite plaintiff’s attorneys claiming that the scientific evidence linking asbestos-containing talcum powder with ovarian cancer and mesothelioma, Johnson & Johnson, says Law360.com, “has vigorously denied the alleged link between the litigants’ illnesses and the talcum products.”
Last year in New Jersey, a consolidated case involving four plaintiffs who developed mesothelioma—a cancer of the lining of the lungs caused by the inhalation of asbestos particles—resulted in a nearly $800 million award for the plaintiffs. (A judge later reduced the punitive damages to $186 million from $750 million.) Johnson & Johnson is appealing the judgments.
The company is also hoping the U.S. Supreme Court will review a $2.1 billion talc powder verdict awarded to 22 women in 2018, after a Missouri Supreme Court refused to review to hear the appeal in November 2020. Johnson & Johnson announced in October of last year that it would settle 1,000 talc powder lawsuits for $100 million. An additional 20,000 talc powder lawsuits against Johnson & Johnson are still pending.
Talc is a mineral that, when mined, may become contaminated by asbestos, which is another mineral. Talc and asbestos mineral are commonly found in close proximity to each other. Talc itself is safe, however, even trace amounts of asbestos particles can cause harm in the genital area or respiratory tract. A 2018 Reuters report reveals internal evidence from Johnson & Johnson that shows the company knew since as early as 1971 that its talc could be contaminated with asbestos.
