Products Liability Law Daily New Jersey appellate court finds talcum powder ovarian cancer cases may proceed to trial
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Thursday, August 6, 2020

New Jersey appellate court finds talcum powder ovarian cancer cases may proceed to trial

By David Yucht, J.D.

In two cases selected for trial in a New Jersey multi-county litigation, the plaintiffs’ experts adhered to generally accepted methodologies and relied upon studies generally considered an acceptable basis for inclusion in formulating expert opinions. Thus, suppression of their testimony was an abuse of the trial court’s discretion.

A state appeals panel in New Jersey determined that the preclusion of expert testimony in a case brought against several talcum powder manufacturers by women who claimed that use of the manufacturers’ products resulted in their developing ovarian cancer was based on the trial judge’s reliance on his own reading of the supporting materials and his conclusions went to the merits of the experts’ opinions and his disagreement with them, rather than being based on their methodology and the soundness of their data. Consequently, the appellate division reversed the trial judge’s order excluding the plaintiffs’ expert testimony. As a result, the appellate division also reversed the summary judgment dismissal of the cases (Carl v. Johnson & Johnson, August 5, 2020, Alvarez, C.).

Based on complaints by women who used talcum powder in their peritoneal areas and later developed ovarian cancer, a "talc-based body powder products" multi-county litigation was begun in Atlantic County, New Jersey involving women who claimed that their talcum powder use contributed to their developing cancer. Lawsuits filed by two of the women were selected to be the first cases tried in this litigation.

The women retained a gynecological epidemiologist who opined that long-term talc use could cause chronic inflammation in pelvic lymph nodes, that the immune system's response to such chronic inflammation would eventually fatigue it, and that the fatigue would blunt the immune response to the over-production of much in the ovaries and allow cancer to develop. Another expert epidemiologist specializing in identifying avoidable cancer risk factors also was retained as an expert by the women. Citing over 60 published studies, this expert concluded that based on the "totality of all evidence and the continuing accrual of new studies," genital talc use "can cause ovarian cancer." He opined that talc is a biologically plausible cause of ovarian cancer because it "can travel to the ovaries causing an inflammatory response" and that "the inflammatory mechanism is consistent with the increase in risk of ovarian cancer." The women also offered the testimony of a pathologist and a pharmacologist. The trial court granted the manufacturers’ motion to suppress the testimony of these expert witnesses and consequently granted the manufacturers’ summary judgment motion dismissing the complaints [see Products Liability Law Daily’s September 7, 2016 analysis].

Expert testimony. The New Jersey appellate court reversed the trial court’s suppression of the expert witness testimony. The court looked to a recent New Jersey Supreme Court decision, In re: Accutane, 234 N.J. 340 (2018) [see Products Liability Law Daily’s August 2, 2018 analysis], in which the state supreme court reiterated that a trial judge's function is to be a "gatekeeper" and "not to substitute his or her judgment for that of the relevant scientific community." A trial judge needs to determine whether the experts adhered to "the same level of intellectual rigor that characterizes" their field and look to experts’ "principles and methodology—not on the conclusions they generate." The appellate division noted that the trial court did not criticize any of the studies that supported the experts’ conclusions for having an unsound methodology, for misstating results, or for failing to consider bias and confounding influences. Consequently, the trial court did not find that the relevant scientific community would consider the studies unreliable. As such, the appellate division concluded, contrary to the trial court’s findings, that the experts' opinions were based on sound methodology applied to data upon which experts in their field may reasonably rely. The appellate court was satisfied that the plaintiffs’ experts adhered to methodologies generally followed by experts in the field and relied upon studies and information generally considered an acceptable basis for inclusion in the formulation of expert opinions. Therefore, according to the New Jersey appellate court, the suppression of the testimony by these experts was an abuse of discretion. Because reversal meant that there was a dispute of material fact, the order dismissing the complaints was reversed.

The case numbers are Docket Nos. A-0387-16T1 and A-0978-16T1.

Attorneys: Richard M. Golomb (Golomb&Honik, PC) for Brandi Carl and Diana Balderrama. Susan M. Sharko (Faegre Drinker Biddle &Reath LLP) and John H. Beisner (Skadden, Arps, Slate, Meagher &Flom LLP) for Johnson & Johnson, Johnson & Johnson Consumer Companies, Inc., Imerys Talc America f/k/a Luzenac America, Inc. and Personal Care Products Council f/k/a Cosmetic, Toiletry and Fragrance Association [CTFA].

Companies: Johnson & Johnson; Johnson & Johnson Consumer Companies, Inc.; Imerys Talc America f/k/a Luzenac America, Inc.; Personal Care Products Council f/k/a Cosmetic, Toiletry and Fragrance Association [CTFA]

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