By Peter Loftus and Sara Randazzo
Johnson & Johnson, still facing thousands of lawsuits over
the safety of its signature baby powder after losing several
trials, will make a high-stakes attempt to head off future losses
in a courtroom battle beginning Monday.
The company is fighting about 14,200 claims that Johnson's Baby
Powder and other J&J talc products cause cancer. More than two
dozen lawsuits have gone to trial in state courts, some resulting
in eye-popping plaintiffs' wins. That includes a July 2018 verdict
by a St. Louis jury requiring J&J to pay $4.69 billion to 22
women and their families who blamed ovarian-cancer diagnoses on
J&J says its talc products are safe and don't cause cancer
and is appealing the adverse verdicts. The company has also won
several trials in state courts.
But most of the talc claims -- around 12,000 -- are pending in
federal courts, and none has been scheduled for trial. A federal
judge in Trenton, N.J., Freda L. Wolfson, is overseeing coordinated
pretrial proceedings of the federal talc lawsuits, in what is known
as multidistrict litigation.
Before allowing any of the federal lawsuits to proceed to trial,
Judge Wolfson is weighing the strength of the scientific evidence
behind plaintiffs' claims -- the focus of a dayslong hearing
scheduled to start in Trenton on Monday.
Plaintiffs' attorneys have identified expert witnesses including
biologists, physicians and epidemiologists who have concluded there
is scientific evidence that talc use can cause ovarian cancer.
Many of the women who sued J&J used talc powder for feminine
hygiene, and the lawsuits allege that talc particles can migrate to
the fallopian tubes and ovaries, and trigger an inflammatory
process leading to cancer.
In May, J&J filed court motions asking Judge Wolfson to
exclude from any future federal trials the opinions of 22 expert
witnesses retained by plaintiffs, arguing that "they misapply
scientific principles" and "engage in unsupported leaps of logic."
Lawyers for J&J wrote: "In a nutshell, this is science for the
courtroom, not science for the laboratory."
John H. Beisner, an attorney for J&J with Skadden, Arps,
Slate, Meagher & Flom LLP, said in an interview that if Judge
Wolfson finds there isn't enough evidence of causation to present
to juries, "there's nowhere for these cases to go," which could
result in their dismissal, wiping out the majority of talc lawsuits
Plaintiffs' lawyers have asked the judge to deny J&J's
request, arguing that the experts are qualified and used reliable
methodologies to reach their opinions. The plaintiffs say there are
about 35 peer-reviewed studies that show a link between talcum
powder and ovarian cancer, most pointing to an increased risk of
between 25% and 45%. The plaintiffs' lawyers also have argued that
the opinions of certain of J&J's 18 expert witnesses should be
excluded from trials.
"This is a really important step and an opportunity to put
forward what we think is really overwhelming and reliable
evidence," said Leigh O'Dell, one of the co-lead counsel for
plaintiffs in the federal talc lawsuits.
At the hearing, expected to last more than a week, some of the
expert witnesses for both sides will face questions from the judge
and lawyers. The judge could take weeks or months to reach a
decision. If she allows plaintiffs' expert testimony about
causation, it could clear the way for federal trials to begin.
The proceeding, called a Daubert hearing after a 1993 U.S.
Supreme Court case, is a pivotal point in litigation alleging
products or drugs cause medical harm. Companies can severely
curtail claims and sometimes even defeat them completely at the
The Daubert standard, used in all federal courts and many
states, requires judges to consider the soundness of the scientific
methods experts employ, as well as whether the expert is qualified
and the evidence is relevant.
"The idea is that when an expert testifies in front of a jury,
we know that jury is going to give that testimony a significant
amount of weight, " said Adrienne Franco Busby, a partner with
Faegre Baker Daniels who defends drug and medical-device makers in
product-liability litigation, and isn't involved in the talc
litigation. "This is a third party coming to give some specialized
technical knowledge. So when they do that, it has to be legit."
State courts including those in California and Missouri have so
far cleared many baby-powder experts who have testified for
plaintiffs at trials. A New Jersey judge in 2016 threw out the
expert evidence in talc litigation there, which plaintiffs have
The cases consolidated in the New Jersey federal court involve
only those tying baby powder to ovarian cancer. Many plaintiffs'
lawyers have pivoted to filing lawsuits in state court claiming use
of J&J's talc powder causes a rare form of cancer linked to
asbestos known as mesothelioma.
Publicity over talc safety has weighed on the company, which has
responded by taking out newspaper ads and setting up a website to
counter the allegations. J&J shares are down about 11% since
December on concerns about the product-liability litigation, and
related investigations by the Justice Department and the Securities
and Exchange Commission.
J&J booked a $190 million charge in the second quarter for
legal-defense costs in the talc litigation.
Write to Peter Loftus at firstname.lastname@example.org and Sara Randazzo
(END) Dow Jones Newswires
July 21, 2019 05:44 ET (09:44 GMT)
Copyright (c) 2019 Dow Jones & Company, Inc.
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