TRENTON, N.J. – The fate of about 12,000 lawsuits claiming Johnson & Johnson’s talc-containing baby powder causes women to develop both ovarian cancer and mesothelioma, will be decided after eight days of expert witness testimony in a New Jersey federal court.
On Monday, pre-trial Daubert hearings began in the courtroom of U.S. District Court Judge Freda Wolfson to ascertain the reliability of scientific evidence cited by plaintiffs, who believe the powder contains carcinogenic asbestos and/or asbestiform fibers, and led them to develop cancer.
Meanwhile, Johnson & Johnson opposes the plaintiffs’ claims on all counts and argues their evidence cannot show its baby powder product causes cancer. The company is seeking dismissal of all plaintiff witnesses and therefore, their cases outright.
The outcome of the hearings will determine whether the 12,000 federal lawsuits filed against the pharmaceutical giant are found credible enough to go to trial. Currently, the suits are contained in a multi-district litigation, but none have yet been scheduled for trial.
Testimony of Defense Witness Dr. Benjamin Neel
In a Daubert hearing, one witness testifies per day through both direct and cross-examination. In the instant case, plaintiff counsel will call five expert witnesses, while Johnson & Johnson will call on three.
On Tuesday, the Court heard testimony from one of the company’s witnesses, Dr. Benjamin Neel, director of the Laura and Isaac Perlmutter Cancer Center and a Professor of Medicine at New York University.
According to evidence entered into testimony, Neel has authored more than 234 peer-reviewed articles and been cited more than 45,000 times in scientific research articles.
Much of Neel’s testimony focused on cellular biology and how he believed there was a lack of current evidence to suggest that perineal application of talc powder would cause inflammation that would lead to ovarian cancer.
“There is no evidence to support that claim,” Neel said, in a response to a question on that topic from defense counsel Susan M. Sharko, of Drinker Biddle & Reath.
As to whether talc application to cells for 72 hr can result in a global change in a specific DNA sequence, a claim made by the plaintiffs’ expert witness the previous day, Neel also refuted such a belief.
“That is completely inconsonant with everything we know about modern molecular biology,” Neel stated.
Neel testified that the studies and conclusions held by the plaintiff’s expert witness the previous day, Dr. Ghassam M. Saed, did not have any relevance to ovarian cancer, had “flawed methodologies” and his conclusions “do not comport with modern pathogenesis.”
In cross-examination, conducted by John M. Restaino of The Sanders Law Firm, plaintiff counsel sought to evaluate the standards by which Neel submitted his own expert witness report.
“It’s the same methodology that I would use to write a scientific article,” Neel said.
Restaino also asked about causes of cancer, to which Neel replied that three are inherited predisposition, abnormal errors in genomic replication and environmental agents.
Still, Neel emphasized, in his view, that modern studies do not specifically link talc-containing powder use and ovarian cancer.
“There is no evidence of epidemiological studies alone that say perineal talc application causes cancer,” according to Neel.
When Restaino later tried to introduce other risk factors such as age, ethnicity and talc use to cancer, in addition to attempt to link taking anti-inflammatory medications to a decreased risk for ovarian cancer, Neel took a bit of umbrage with the latter association.
“That’s a complex issue which you’ve reduced to a soundbite,” Neel stated.
Under a brief redirect from Sharko, Neel again denied a link between the product and carcinogens.
“The weight of evidence does not support an association between perineal talc exposure and ovarian cancer,” Neel said.
Outcomes of Recent Johnson & Johnson Talc Lawsuits
Imerys Talc America, a chief talc supplier for Johnson & Johnson and two of its subsidiaries filed for Chapter 11 bankruptcy protection in February, conceding that they do not have the finances to continue litigating the numerous asbestos-related cases that have been filed against it in recent years.
Imerys made an appeal for leniency before a Delaware court on Feb. 13. In a press release outlining the bankruptcy filing, it notes all outstanding talc-related litigation involving the filing companies was suspended.
Johnson & Johnson lost a recent bid to have cases filed against it transferred there, with a Delaware federal judge indicating the move would be irrelevant to Imerys bankruptcy proceedings and burdensome to the litigation.
In recent months and years, carcinogenic talc lawsuits in other jurisdictions have yielded gigantic jury verdicts numbering in the tens and hundreds of millions of dollars – and in one lawsuit, the billions.
In July 2018, St. Louis Circuit Court jurors hit Johnson & Johnson with a staggering $4.69 billion verdict, comprised of $4.14 billion in punitive damages and $550 million in compensatory damages, to be paid to 22 women who claimed the defendants’ talc caused their ovarian cancer.
That trial and judgment were the first time a court awarded damages for alleged asbestos in talc. Numerous other trials focused on allegations that talc alone caused ovarian cancer. Johnson & Johnson is challenging the verdict on appeal.
California plaintiff Eva Echeverria, who also claimed longtime use of the defendants’ talc caused her ovarian cancer, was awarded $417 million by a jury verdict in August 2017.
That award consisted of $70 million in compensatory damages and $347 million in punitive damages, but it was later overturned on appeal that October by a Los Angeles County Superior Court judge.
In 2016, a Missouri jury found Johnson & Johnson liable for injuries resulting from the use of its talc powder, awarding the family of Alabama woman Jacqueline Fox $72 million. But similarly, an appellate court in Missouri threw out the verdict, deciding the case should not have been tried in St. Louis to begin with.
It found that in light of the landmark Bristol-Myers Squibb v. Superior Court of California decision from the U.S. Supreme Court, the St. Louis City Circuit Court had erred when it exercised personal jurisdiction over Johnson & Johnson, because Fox’s claims did not arise out of the company’s activities in Missouri.
In May, a New York state jury hit Johnson & Johnson with a total $325 million jury verdict over claims made by plaintiff Donna Olson, who claimed exposure to asbestos in its baby powder products led her to develop a rare form of cancer. The company is also appealing that decision.
Also in May, a South Carolina jury cleared Johnson & Johnson of liability in a similar action.
Johnson & Johnson has stood by the efficacy and safety of its products, referring to the National Cancer Institute’s Physician Data Query Editorial Board, which wrote in April 2017: “The weight of evidence does not support an association between perineal talc exposure and an increased risk of ovarian cancer.”
U.S. District Court for the District of New Jersey case 3:16-md-02738
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com