On October 4, 2023, a panel of three judges in the New Jersey Appellate Division reversed a $224 million verdict against Johnson & Johnson, awarded to a consolidated group of four plaintiffs who alleged their use of the company’s talcum powder products caused them to be diagnosed with cancer. The jury awarded the plaintiffs an aggregate compensatory damages award of $37.3 million and a punitive damages award totaling $186.5 million. 

The basis of the reversal was that the trial court did not fulfill its role as a gatekeeper for permitting only reliable expert testimony to be presented to a jury by failing to conduct pre-trial hearings on the scientific methodology and the underlying data relied upon by the plaintiffs’ expert witnesses. In the opinion, the Appellate Division reinforced the proper role of the trial court as the gatekeeper of expert witness testimony. Further, the court instructed trial courts to assess both the methodology used by the expert to arrive at an opinion as well as the underlying data used in the formation of the opinion. 

Overall, the Appellate Division found that the trial court failed to hold an evidentiary hearing as to the expert testimony, failed to make legal determinations of reliability as to the methodology, and permitted the jury to make credibility determinations as to the quality of the expert testimony instead of first determining whether the expert opinion was based on sound and adequately founded scientific methodology. These errors, the Appellate Division believed, were so “wide off the mark that a manifest denial of justice resulted.”

This monumental opinion raises the bar for the standard that plaintiffs must meet in pursuing claims of talc powder exposure against companies such as Johnson & Johnson. Further, it provides an avenue for talc defendants to challenge expert witnesses offering testimony for plaintiffs in a talc case. For obvious reasons, we can expect this opinion to have more of an impact in talc litigation than in asbestos claims, where the scientific methodology of expert witnesses has been studied extensively over its longstanding history. As we are seeing an increasing number of talc cases being filed, the reversal of this $224 million verdict is a useful roadmap for proper expert witness practice as well as a reassuring development for industry clients.