Pharmaceutical and personal care product giant Johnson & Johnson currently faces about 12,000 lawsuits from cancer patients who claim that talc in the company’s baby powder caused their diseases. Recently, the parties underwent eight days of expert witness testimony in a New Jersey federal court.
The plaintiffs claim that the talc in Johnson & Johnson’s baby powder was contaminated with asbestos, asbestiform fibers, or both. Exposure to this contamination, they argue, caused them to develop various types of cancer, including ovarian cancer and mesothelioma.
Johnson & Johnson opposes these claims, arguing that the plaintiffs’ evidence does not link the company’s baby powder to cancer. Therefore, argues J&J, all the plaintiff’s expert witnesses – and their claims – should be dismissed.
Daubert Hearings and Expert Witnesses
During the eight-day Daubert hearings, the New Jersey federal court heard from one expert witness per day. Five experts were presented by the plaintiffs and three by Johnson & Johnson.
The court’s goal was to evaluate the credibility of the expert witnesses and their claims. The court’s determination will have a profound effect on the case, determining whether it is allowed to proceed or ends here for lack of credible evidence with which to go to trial.
If J&J succeeds at this stage, the company may be able to have nearly 12,000 lawsuits dismissed. This number represents 79% of all outstanding baby powder lawsuits. The court’s decisions will also determine whether some lawsuits are allowed to proceed and, if so, which areas of contention will be highlighted and which will be dropped.
Two Sides: Experts for the Plaintiffs
The first of plaintiffs’ five expert witnesses to speak was Dr. Daniel Clarke-Pearson, a gynecological oncologist and professor of obstetrics and gynecology at the University of North Carolina-Chapel Hill.
Clarke-Pearson testified that his analysis led him to conclude that “the use of talcum powder products, including those manufactured by Johnson & Johnson, when applied to the female perineum, is a causative factor in the development of epithelial ovarian cancer.” He estimated that the overall increase in ovarian cancer risk was 20-60%.
Testimony by another expert for the plaintiffs’ Dr. Ghassam M. Saed, became the subject of pushback from at least one expert for the defense.
Defendants’ Response to the Plaintiffs’ Experts
Johnson & Johnson’s expert witnesses included Dr. Benjamin Neel, director of the Laura and Isaac Perlmutter Cancer Center and a professor of medicine at New York University.
During much of his testimony, Neel focused on the plaintiffs’ claims that the talc powder causes ovarian cancer by creating inflammation when applied perineally. Relying on his background in cellular biology, Neel argued that “there is no evidence to support that claim.”
Neel had a similar response to the plaintiffs’ claim that talc could cause a global change in a specific DNA sequence when applied to human cells for 72 hours, saying “that is completely inconsistent with everything we know about modern molecular biology.” He emphasized that he did not believe modern studies offered a specific link between using talc-containing powder and developing ovarian cancer.
Neel specifically pushed back against the research and findings of Dr. Saed, stating that the methodologies Saed used to reach his conclusions in favor of the plaintiffs were flawed and that they “do not comport with modern pathogenesis.”
Neel discussed the various causes of cancer, which include an inherited predisposition, abnormal errors in gene replication and environmental agents. However, he emphasized that, in his opinion, epidemiological studies did not show a link between the specific environmental agent of talc application and ovarian cancer.
Next Steps
At the end of the hearings, the court ordered both the plaintiffs and Johnson & Johnson to submit written statements within 45 days once transcripts from the Daubert hearings became available. Each side is required to limit its written statements to 80 pages or fewer. The court reserved judgment until the written statements have been received and reviewed.
Victory at the Daubert hearing stage could relieve considerable pressure on Johnson & Johnson, which is already challenging verdicts from other courts regarding the link between its talc-containing powder and various cancers. These include a St. Louis Circuit Court verdict for $4.69 billion, which includes $4.14 billion in punitive damages and a New York state jury verdict for $325 million, both of which Johnson and Johnson are appealing.
Meanwhile, Imerys Talc America, a chief supplier of talc to Johnson & Johnson and two subsidiaries, has filed for Chapter 11 bankruptcy. Imerys stated that the company cannot afford to keep fighting the many asbestos-related cases filed against it in recent years.
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