A New Jersey judge has dismissed two lawsuits where plaintiffs alleged that talcum powder caused their ovarian cancer. The cases were consolidated in Atlantic County before Judge Nelson C. Johnson as part of New Jersey’s centralized Multi-County Litigation (“MCL”), which is the state court analogue to the federal system’s Multi-District Litigation (“MDL”)1. This decision deals a significant blow to similarly-situated plaintiffs not only in New Jersey, but perhaps across the country.
Talc litigation has grown in recent years. Talc litigation started as an extension of asbestos litigation, i.e., that the talcum powder is contaminated with asbestos. The talc/asbestos cases are still being filed, but hundreds of cases have also been filed alleging that talcum powder in and of itself, without any contamination, causes ovarian cancer in women who use the product. This type of non-asbestos talc litigation steadily grew in recent months in the wake of a pair of eye-popping jury verdicts coming out of St. Louis, Missouri that got the attention of prospective plaintiffs and the plaintiffs’ tort bar. It remains to be seen whether there will be a significant drop-off in filings in light of this recent decision.
The decision was prompted by defendants’ motions to bar the plaintiffs’ experts from testifying and, in the event the experts were barred, motions for summary judgment on the issue of causation. The court framed the issue as: “[h]ave Plaintiffs shown that their experts’ theories of causation are sufficiently reliable as being based on a sound, adequately-founded scientific methodology, to wit, that they are based upon methods upon which experts in their field would reasonably rely in forming their own (possibly different) opinions about the cause(s) of each Plaintiffs’ ovarian cancers?” Acting as the “gatekeeper” of expert testimony, and before the motions were actually filed, the court solicited from counsel “all reports, abstracts, epidemiology studies, and peer-reviewed articles…that were relied upon by the witnesses in formulating their opinions.”
The court began its analysis by acknowledging that under the law of evidence in New Jersey, the standard for admissibility is not limited to “general acceptance in the scientific community.” Instead, New Jersey courts recognize that there are situations in which a theory of causation that has not yet reached general acceptance in the scientific community may still be found sufficiently reliable to allow a jury to consider it. Citing Landrigan v. Celotex Corp., 127 N.J. 404, 414 (1992), the court noted that this is particularly true in the toxic tort arena, where issues of specific causation are not readily available to plaintiffs and they may be compelled to rely on more general evidence, like epidemiological studies. The court explained its understanding of the admissibility standard for expert testimony in toxic tort litigation as follows:
[I]n determining whether a scientific methodology is valid, trial courts must consider whether other scientists in the field use similar methodologies in forming their opinions and also should consider other factors that are normally relied upon by medical professionals. The appropriate inquiry is not whether the court thinks that the expert’s reliance on the underlying data was reasonable, but rather whether comparable experts in the field would actually rely on that information.
(Citing Rubanick v. Witco Chem. Corp., 125 N.J. 421, 432 (1991)). Further, the court noted that “the admissibility of expert testimony in toxic tort cases ‘depends on the expert’s ability to explain pertinent scientific principles and to apply those principles to the formulation of his or her opinion.’” (Citing Landrigan, supra, 127 N.J. at 414). The plaintiffs’ burden at the evidentiary hearing was to “demonstrate that the methodologies used by their experts are consistent with valid scientific principles accepted in the scientific and medical communities.” (Citing Kemp v. State of New Jersey, 174 N.J. 412 (2002)).
The court noted that it had “carefully read every epidemiological study cited by the witnesses and legal counsel” in preparing its decision. The court’s opinion, which is likely to be appealed, is a careful and detailed analysis of the scientific and legal issues surrounding legal causation in talc litigation. This rigorous analysis will surely provide significant hurdles for other talc plaintiffs.
In summarizing the evidentiary hearing, the court noted that plaintiffs’ causation experts derived the basis for their opinions from a relatively small number of retrospective case-control studies, rather than the large cohort studies presented by defendants. The court wrote, “[a]s these proceedings drew to a close, two words reverberated in the court’s thinking: ‘narrow and shallow’. It was almost as if counsel and the expert witnesses were saying, Look at this, and forget everything else science has to teach us.”
Noting the dearth of scientific and medical evidence surrounding talc’s link to ovarian cancer, the court summarized plaintiffs’ experts as follows: “‘Inflammation’ was used almost as a talisman that supposedly explained everything the court needed to know. Stated in lay terms, [Plaintiffs’ causation experts’] postulation, essentially, is as follows: The talc flows upstream and lodges in the ovaries; it irritates cells in the ovaries, causes inflammation, which in turn causes immunosuppression, and the inescapable result is cancer.” What further troubled the court was that there was no inflammation observed in the respective plaintiffs.
This opinion will have significant impact on talc litigation in New Jersey where nearly 200 cases have been filed in just over two and a half years, dozens of which were filed since February when a St. Louis jury awarded a talc plaintiff a whopping $72 million in compensatory and punitive damages. This decision may also have a significant impact on talc litigation throughout the country, as this is only the second court in the country to address the issue of causation in ovarian cancer talc litigation. Previously, a St. Louis, Missouri court allowed plaintiffs’ expert witnesses to testify at trial leading to headline-grabbing jury verdicts. The $72 million verdict referenced above, and a subsequent $55 million verdict, both came out of St. Louis and are being appealed. Dozens of other talc lawsuits have been filed throughout the country, and a request was recently filed to consolidate the litigation as an MDL. Given that the scientific and medical evidence behind plaintiffs’ theory of causation is not well established, this thorough and persuasive opinion may be convincing to other courts deciding similar issues.
1 The cases are Carl v. Johnson & Johnson, et al., Docket No. ATL-L-6546-14, and Balderrama v. Johnson & Johnson, et al., Docket No. ATL-L-6540-14.
