Products Liability Law Daily Cal. App.: New trial for Johnson & Johnson affirmed in ovarian cancer case
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Thursday, July 11, 2019

Cal. App.: New trial for Johnson & Johnson affirmed in ovarian cancer case

By David Yucht, J.D.

Claims that a manufacturer of talcum powder harmed a consumer by failing to warn of the dangers inherent in genital talc use will be re-tried.

A California state appellate court affirmed the judgment of a trial court granting Johnson & Johnson (J&J) judgment notwithstanding a verdict (JNOV) in favor of a consumer who claimed that J&J’s failure to warn that its talcum powder could cause ovarian cancer led to her developing this illness. However, portions of the court’s judgment granting a J&J subsidiary JNOV as to liability were reversed even though the trial court’s order granting a new trial to the subsidiary was affirmed. In addition, portions of the judgment granting the subsidiary JNOV as to punitive damages were affirmed (Echeverria v. Johnson & Johnson, July 9, 2019, Adams, R.).

J&J manufactured Johnson’s Baby Powder from 1893 until 1967. In 1967, Johnson & Johnson Consumer Inc. (JJCI), a J&J wholly owned subsidiary, began manufacturing this product. The first epidemiological study to investigate a link between talc and ovarian cancer was published in 1982. In the decades that followed, researchers published over 30 additional studies exploring whether there is an association between talc use and ovarian cancer. Talc causes inflammation. Studies have found that chronic inflammation plays a role in the development of some types of cancer and possibly ovarian cancer. However, no published studies, regulatory agencies, or scientific organizations have concluded that talc-based inflammation causes ovarian cancer. In 2014 and 2015, the National Cancer Institute identified perineal talc use as a risk factor for ovarian cancer; in 2017, it indicated that the weight of the evidence did not support an association between perineal talc exposure and an increased risk of ovarian cancer.

This bellwether case was one of several coordinated suits in which consumers alleged that talcum powder products manufactured by J&J and JJCI caused them to develop ovarian cancer. The consumer in this case began using Johnson’s Baby Powder as a feminine hygiene product in 1965. She continued using the product two to three times each day until 2016. In 2007, she was diagnosed with ovarian cancer. A jury considered a single claim of negligent failure to warn. The jury returned a multimillion-dollar verdict in the consumer’s favor against both J&J and its subsidiary, including the award of compensatory as well as punitive damages. The companies filed motions for JNOV as to liability and punitive damages, as well as a joint motion for a new trial. The trial court granted these motions. Both sides appealed.

Failure to warn. The appellate court affirmed the JNOV in favor of J&J and partially reversed as to JJCI. There was no substantial evidence to support a finding that Johnson & Johnson was liable for negligently failing to warn of the risks of perineal talc use. To establish her negligence claim, the consumer was required to prove that each company had a legal duty to warn consumers about hazards inherent in their talc-based products; that they breached that duty; and that the breach caused the consumer’s injury. Causation required evidence that talc-based products not only cause ovarian cancer in general (general causation), but also that the companies’ products caused this specific consumer’s ovarian cancer (specific causation). The appellate court concluded that there was no substantial evidence to support a finding of liability as to J&J, a parent company that stopped manufacturing talcum powder several years before there were any studies linking genital talc use and ovarian cancer. There was no substantial evidence that J&J breached a duty to warn prior to 1967 before any studies came out linking talc to ovarian cancer. Moreover, there was no legal basis for the jury to find J&J liable for breaching a duty to warn after it ceased manufacturing the product, and there was no evidence to support a finding of liability arising out of J&J’s continued involvement in talc issues or based on its "directing" JJCI. The evidence also failed to support a finding of malice as required for a punitive damages award, and the court affirmed the JNOV in favor of JJCI on that ground.

The appellate court reversed the JNOV in favor of JJCI as to liability but affirmed the trial court order granting JJCI’s motion for a new trial. The appellate court concluded that there was substantial evidence to support the jury’s finding that JJCI breached a duty to warn of the risks of ovarian cancer from genital talc use. The evidence as it applied to JJCI was sufficient to allow the jury to conclude that the known risks of genital talc use were concrete enough that it was unreasonable for JJCI to fail to warn consumers of them. Between 1967 and 2007, there were several epidemiological studies finding a statistically significant association between genital talc use and ovarian cancer, as well as studies concluding that talc can migrate to the ovaries. Internal documents reflected JJCI’s knowledge of these studies. Moreover, substantial evidence supported the jury’s finding on specific causation. The consumer’s expert witness’s reliance on epidemiological studies supported her opinion such that a jury could accept her explanations. Also, her opinion was not invalid for failure to rule out other known causes or the possibility of an unknown cause. The appellate court concluded that the entirety of the evidence established that the expert’s methodology was not fatally flawed and that her opinion was sufficiently supported. Her specific causation opinion was supported by the epidemiological literature, including studies showing risk ratios greater than 2.0; her testimony regarding the biological mechanism in general and the presence of talc in the consumer’s ovarian tissue and other areas where the cancer was present; her clinical experience and treatment; her explanations addressing and ruling out other known risk factors and causes; and portions of the testimony of the other experts.

The appellate court, however, applied a different standard of review when evaluating the trial court order granting JJCI’s motion for a new trial. Under California procedural law, an order granting a new trial may "not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." If an order granting a new trial is based on "a reasonable or even fairly debatable justification under the law," it will not be set aside. Although the appellate court reversed the JNOV in favor of JJCI, it determined that the causation evidence was in significant conflict and would have supported a verdict for the consumer. Consequently, the appellate court could not say that the trial court had no basis to grant a new trial.

The case is No.B286283.

Attorneys: Mark P. Robinson (Robinson Calcagnie, Inc.) for Elisha Echeverria. Bart H. Williams (Proskauer Rose LLP) for Johnson & Johnson.

Companies: Johnson & Johnson

MainStory: TopStory WarningsNews CausationNews DamagesNews EvidentiaryNews HouseholdProductsNews CaliforniaNews

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