Good news for the nearly 17,000 women who have joined lawsuits against Johnson & Johnson. A federal judge is allowing some of the plaintiff’s experts to provide testimony linking J&J’s popular baby powder to ovarian cancer.
Despite J&J’s attempt to bar the plaintiff’s experts from testifying that asbestos and talc in the baby powder causes cancer, U.S. District Court Judge Freda L. Wolfson ruled that most of the plaintiff’s experts meet the so-called Daubert standard. This means that the testimony provided by the experts passes scientific muster.
As a result of Wolfson’s ruling, the collective lawsuits, known as multidistrict litigation (MDL), may soon establish both compensatory and punitive damages in so-called bellwether trials.
The goal of bellwether trials, which are the initial, smaller and consolidated cases in MDL, is to test the waters. This practice run usually predicts rulings on future cases.
If the bellwether trials mostly favor the plaintiffs, there is a greater chance for a settlement.
Can Genital Application Of Talc Cause Cancer?
Judge Wolfson is allowing an epidemiologist and gynecological oncologist to testify that using talc powder in or around the genitals is linked to “general causation,” of ovarian cancer. Also testifying will be a microscopist, who claims to have found asbestos in J&J talc samples.
In addition, three professors were cleared to testify, despite J&J’s attempt to block them.
This is not the first time that J&J has been on the short end of a ruling. In 2018, a jury in a Missouri circuit court awarded a staggering $4.69 billion in combined damages to 22 women. J&J, just days before Judge Wolfson’s ruling to allow plaintiff expert witnesses, urged a Missouri Court of Appeals to overturn the Circuit Court’s decision and completely vacate the award.
Wolfson’s ruling could also impact rulings in the state of New Jersey, where an appellate court (an appeals court) decision is hanging in the balance of a 2016 State Court’s decision to dismiss a couple of talc lawsuits because of insufficient scientific evidence. At the time of the 2016 decision, there were approximately 1,000 talc cases in New Jersey alone. By 2019, nearly 14,000 cases were pending in the Garden State.
Not Just Ovarian Cancer
In 2019, a New York State jury ordered J&J to pay $3250 million in damages to Donna Olson, who claimed the talc baby powder caused mesothelioma. Mesothelioma, a malignant tumor that is caused by inhaling asbestos fibers, is not a result of talc itself but rather from asbestos fiber particles in the talc. Talc and asbestos are often found next to each other when they are mined, which is why both minerals may be found in talcum baby powder.
Based on Judge Wolfson’s decision, in the MDL, the plaintiff experts will not be allowed to testify that a woman could get ovarian cancer from inhaling talc.
But it is not clear if the plaintiff’s expert witnesses will be able to testify whether inhaling asbestos particulates generally causes mesothelioma.
A History Of Deception?
A report by Reuters news organization alleges that J&J executives knew as far back as the 1970s that its raw talc used in its baby powder contained asbestos. The report, which included internal memos, maintains that J&J talcum powder tested positive for trace amounts of asbestos on several occasions between 1971 and 2003. J&J called the allegations an absurd conspiracy theory on its website.
In October 2019, J&J issued a voluntary recall for one lot of talc powder after testing by the Food & Drug Administration (FDA) found trace amounts of asbestos.
How Can Women Prove Wrongdoing?
If a woman was 18 to 64 years of age and diagnosed with ovarian cancer after 2009, and can prove prolonged and frequent use of talcum powder near the genital region for at least five years, she may be entitled to compensation.