In the first case of its kind to go to trial, a jury recently returned a defense verdict against a plaintiff who claimed that exposure to Johnson & Johnson’s Baby Powder caused her to develop mesothelioma.

The plaintiff, Tina Herford, filed suit in the Los Angeles County Superior Court and alleged that her exposure to asbestiform fibers, through the inhalation of Johnson & Johnson’s Baby Powder, caused her to develop mesothelioma. In seeking 24 million dollars in damages, Ms. Herford alleged that Johnson & Johnson was aware that its talcum-based products, and specifically its baby powder, were contaminated with asbestos, and that the company concealed this information from the public for approximately 100 years.

Johnson & Johnson presented expert testimony from an oncologist that the proximate cause of Ms. Herford’s mesothelioma was her exposure to radiation from treatments for an unrelated, prior cancer. Johnson & Johnson also denied that its talcum-based products ever contained talc contaminated with asbestos, and stated that Johnson & Johnson complies fully with FDA regulations and standards regarding its baby powder and other products, as well as industry standards established by the Personal Care Products Council (formerly the Cosmetic Toiletries Fragrance Association) for testing crude talc.

After two days of deliberations following a trial that lasted approximately four weeks, a Pasadena, CA jury returned with a verdict for Johnson & Johnson and its co-defendant, Imerys Talc America Inc. The jury rejected the Plaintiffs’ allegations that Imerys had supplied and that Johnson & Johnson sold talc which was contaminated with asbestos. The jury found that J&J did not negligently design or sell its talc products, that the talc product did not fail to perform as safely as a reasonable consumer would have expected, that the talc product was not defective, and that Johnson & Johnson did not fail to warn of any potential risks, “known or knowable based on general scientific knowledge at time of sale.”  As a result, the jury never reached the issue of causation.

The Herford verdict comes in the wake of two rulings which reversed plaintiff verdicts in cases in which plaintiffs had alleged that Johnson & Johnson’s Baby Powder had caused ovarian cancer: Echeverria v. Johnson & Johnson, JCCP4872, Superior Court of Los Angeles, in which a $417M verdict was overturned; and Fox v. Johnson & Johnson, ED104580, Missouri Court of Appeals, Eastern District, where a $72-million verdict against Johnson & Johnson was thrown out.

There are currently more than 5,500 talc-related claims pending in state and federal courts in multiple jurisdictions throughout the United States. The Herford verdict is a reminder that reliable scientific evidence and facts, rather than rumors and rushed judgment, should decide these cases.
Continue Reading Johnson & Johnson Found Not Responsible in Los Angeles Superior Court

On September 25, 2017, the Court of Common Pleas of Pennsylvania in Philadelphia County precluded two of plaintiffs’ experts from testifying in the Brandt v. The Bon-Ton Stores, Inc., et al. asbestos-related talcum powder case, effectively ending the case. Both Sean Fitzgerald and Dr. Ronald Gordon were precluded from offering expert testimony regarding the asbestos content in the Cashmere Bouquet talcum powder at issue.

The Brandt case involved a plaintiff who claimed she developed mesothelioma as a result of exposure to asbestos from using Cashmere Bouquet talcum powder. Defendants moved, in part, to challenge the opinions of plaintiffs’ experts regarding the asbestos content of Cashmere Bouquet on grounds the experts did not employ generally accepted methodologies to support their opinions.  During the hearing on the defendants’ challenge, the plaintiffs’ experts both conceded the tests they conducted were insufficient to differentiate between asbestos fibers and cleavage fragments—particles that look similar to asbestos fibers. The plaintiffs argued their experts’ methodologies for testing the asbestos content in Cashmere Bouquet were fodder for cross examination, and the case should proceed to the jury.

After four days of testimony from the plaintiffs’ experts and the defendants’ expert, Dr. Matthew Sanchez, the court issued a nine-page memorandum opinion excluding Mr. Fitzgerald’s and Dr. Gordon’s opinions as unreliable, “inherently unscientific,” and not generally accepted pursuant to the Frye test, which Pennsylvania continues to follow.  See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). The court painstakingly detailed the experts’ methodologies for determining the alleged asbestos content in Cashmere Bouquet, and concluded that while some of the methodologies employed by Mr. Fitzgerald and Dr. Gordon were generally accepted in the scientific community, each expert modified, varied, or deviated from those generally accepted methodologies, making their opinions unreliable under Frye.

Pennsylvania is one of few states that still apply the Frye “general acceptance” test for determining whether an expert’s opinion is admissible.  The overwhelming majority of states across the country follow the standard set forth in Daubert v. Merrill Dow Pharmaceuticals, Inc. for evaluating admissibility of expert testimony.  Under Daubert, an expert’s testimony must be both relevant and reliable; however, unlike the Frye standard, which uses general acceptance as its cornerstone, Daubert does not require or consider whether the methodologies employed by the expert are generally accepted among the scientific community.

It is difficult to predict whether the methodologies employed by the plaintiff’s experts in the Brandt case would have survived a Daubert challenge.  Both experts conceded that had they followed generally accepted methodologies for testing asbestos in talcum powder, they likely would have been unable to identify asbestos in Cashmere Bouquet, and it is difficult to imagine a jurisdiction where such “inherently unscientific” testimony would be sufficient to submit to a jury.  Nevertheless, jurisdictions following Daubert will not evaluate whether such testing methods are generally accepted in the scientific community. Therefore, it remains to be seen what impact the exclusion of Mr. Fitzgerald’s and Dr. Gordon’s expert
Continue Reading Pennsylvania Frye Test Precludes Two Experts from Testifying in Cashmere Bouquet Talc Case

A new wave of lawsuits alleging an association between ovarian cancer and the use of talcum powder for feminine hygiene purposes – a claim that many believe is based on questionable science – has hit an all-time high.  Last week, a Los Angeles jury returned a verdict against Johnson & Johnson in the amount of $417 million ($70 million in compensatory damages, $347 million in punitive damages), finding that there was a connection between Plaintiff Eva Echeverria’s ovarian cancer and Johnson & Johnson’s talcum powder product.  Plaintiff, a California resident, claimed she developed ovarian cancer as a result of her use of Johnson & Johnson’s Baby Powder over many years, and alleged that Johnson & Johnson had internal knowledge for decades of scientific studies that demonstrated that the use of talc could cause cancer.

In support of this allegation, Plaintiff’s lawyers presented to the jury a 1982 study suggesting that women who used baby powder – which is mainly comprised of talc – were at a 92% increased risk for ovarian cancer.  Plaintiff’s lawyers also claimed that the lead researcher for that study advised Johnson & Johnson about the study, and suggested that the company should place a warning label on their product, but Johnson & Johnson refused.  In its defense, Johnson & Johnson took issue with the 1982 study, and argued that talc is inherently safe, analogizing talc to red meat and alcohol – neither of which require warnings.

Much of the controversy surrounding this new litigation stems from the science lawyers representing plaintiffs are using to support their claims.  Johnson & Johnson argued during trial that the scientific studies on which Plaintiff relied upon are flawed and “made-for-litigation.”  Specifically, many studies supporting the association between ovarian cancer and talc are based on interviews conducted on women already diagnosed with ovarian cancer, asking them to remember whether they ever used talcum powder; accordingly, such studies run the risk of promoting inaccurate recollection.

Epidemiologist Jack Siemiatycki, who testified on behalf of Plaintiffs, stated that it is “more likely than not that talc can cause ovarian cancer.”  Additionally, Laura Plunkett, a pharmacologist and toxicologist hired by Plaintiffs, opined that talc is toxic, and when used on a woman’s lower extremities, can cause ovarian cancer by migrating into the ovaries and causing chronic inflammation, which worsens even from small applications over long periods of time.

Johnson & Johnson argued that Plaintiff’s experts base their assertions on unreliable studies, citing to a 2000 cohort study by researchers at Harvard University, in which they concluded that there was “no overall association” between talc and “epithelial ovarian cancer.”  In that study, out of the 78,630 women that stated they used talcum powder products, 307 of them were eventually diagnosed with ovarian cancer.  While the study did state that there was a “modest elevation in risk” for one variety of the disease – invasive serous ovarian cancer – the report concludes that the “results provide little support for any substantial association between
Continue Reading Johnson & Johnson Hit With $417 Million Verdict In Spite of Inconclusive Scientific Evidence

Mineral talc, as a raw material, was determined to be “inherently safe” by Los Angeles Superior Court Judge Maren Nelson in the days leading up to the first Johnson & Johnson California ovarian cancer trial in the Johnson & Johnson Talcum Powder Cases, number JCCP4872.  According to Law360.com, on July 10 the judge dismissed Imerys Talc based on her finding that talc is “inherently safe.”  This ruling could have a profound effect on talc litigation, at least in California, as it may serve to protect Imerys and other suppliers of raw talc from further liability.

The court based its decision on the 1998 California appellate case of Artiglio v. General ElectricSee 61 Cal. App. 4th 830, 839 (1998).  The Artiglio decision is based on the Restatement Third of Torts and stands for the proposition that component and raw material suppliers are not liable to ultimate consumers when the goods or material they supply are: (1) not inherently dangerous; (2) they sell goods or material in bulk to a sophisticated buyer; (3) the material is substantially changed during the manufacturing process; and (4) the supplier has a limited role in developing and designing the end product.  See id.

A number of other states, including Massachusetts, have similar jurisprudence that recognize the “bulk supplier,” “sophisticated user,” and “component part” doctrines which may lead to similar results for raw material suppliers, such as talc suppliers, in ovarian cancer talc litigation.  See Carrel v. Nat’l Cord & Braid Corp., 447 Mass. 431, 441 (2006); Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 629 (2001).

Unlike California courts, though, Massachusetts courts have not conglomerated the sophisticated user doctrine and the bulk supplier doctrine into one rule that deals with “inherently safe” raw materials.  Massachusetts courts have, however, held that the components of the Artiglio rule (the bulk supplier doctrine and the sophisticated user doctrine) are recognized defenses in Massachusetts.  See Hoffman, 434 Mass. at 629; See Artiglio 61 Cal. App. 4th at 839.  Additionally, Massachusetts courts have recognized the component parts doctrine, which in California, is a counterpart of the Artiglio rule. See 61 Cal. App. 4th at 839.  Therefore, talc defendants certainly have a strong argument for dismissal.

Hoffman, confirms that the first component of the Artiglio rule, the bulk supplier doctrine, is available in Massachusetts.  See Hoffman 434 Mass. at 629.  In Hoffman, the pivotal question on appeal concerned the duty of a bulk supplier to warn all foreseeable users of the risks associated with a product’s use.  See id.  In that case, the court held that the bulk supplier doctrine allows a manufacture-supplier of bulk products, in certain circumstances, to discharge its duty to warn end users of a product’s hazards by reasonable reliance on an intermediary.  See id.  Among the factors that may determine reasonable reliance are: (1) the dangerous condition of the product; (2) the purpose for which the product is used; (3) the form of any warnings given; (4) the reliability of
Continue Reading Bulk Supplier, Sophisticated User, and Component Parts Doctrines May Provide Effective Defense to Talc Suppliers Whose Products are “Inherently Safe”

Talc!For the third time this year, a St. Louis, Missouri jury found Johnson & Johnson liable in a case where plaintiff alleged that her ovarian cancer was caused by her use of talcum powder products. At trial, Deborah Giannecchini, a 62 year-old California woman, claimed that her decades-long use of Johnson & Johnson talcum powder caused her to develop ovarian cancer in 2013. After a month-long trial, the jury awarded her more than $70 million in damages, approximately $65 million of which were comprised of punitive damages.

At trial, Giannecchini’s lawyers argued that Johnson & Johnson:  (1) was aware for more than 30 years that use of talc-based products increases the risk of ovarian cancer; and (2) did not warn the public of the potential health hazards associated with the product.

In the two prior St. Louis cases which reached a verdict against Johnson & Johnson, juries found in favor of plaintiffs and awarded $72 million and $55 million, respectively, in damages. While Johnson & Johnson has seen limited success before juries, the company hopes that each of the three St. Louis verdicts will be overturned on appeal. Specifically, Johnson & Johnson’s appellate arguments will focus on the lack of scientific proof to support the recent jury awards. Indeed, Johnson & Johnson successfully used this approach in New Jersey, where a state court dismissed two talc-based actions after ruling that plaintiffs’ scientific experts were unable to provide sufficient evidence that the use of talcum powder causes ovarian cancer.

Johnson & Johnson is currently defending more than 1,500 cases nationwide.  In each of these cases, plaintiffs allege that the company failed to warn consumers of the potential health risks associated with the use of talc products.
Continue Reading Johnson & Johnson Found Liable in Latest Talc Product Trial