United States: Update On Talc Litigation: "Made-For-Litigation" Testimony Of Plaintiffs' Experts Barred, Resulting In Dismissals

In our August 1, 2016 newsletter, we reported on “Talc and The Possible Link to Cancer,” which profiled two recent multi-million dollar verdicts against Johnson & Johnson by plaintiffs who alleged that they developed ovarian cancer from their use of talcum powder. Claims of talc-related injuries continue to increase nationwide. Product manufacturers, such as Johnson & Johnson, but also talc suppliers, are being named in suits for ovarian cancer and also in asbestos actions.

Defendants are fighting back by attacking the core of the plaintiff’s case, that is, plaintiff’s ability to demonstrate to a jury that their use of talcum powder caused cancer. Last month, a New Jersey court, in its important role as “gatekeeper” dismissed two talc-based ovarian cancer cases. In Brandi Carl and Diana Balderrama v. Johnson & Johnson, et al., Superior Court of New Jersey: Atlantic City, Talc-Based Powder Products Litigation, Civil Action No. 300 (MCL), Docket No. ATL-L-6564-14 & ATL-L-6540 (September 2, 2016), the Court barred the testimony of plaintiff’s experts, Dr. Graham A. Colditz and Dr. Daniel W. Cramer, and consequently, granted the summary judgment motions of defendants, Johnson & Johnson and talc producer Imerys Talc America, Inc.

In making its ruling, the Court solicited and reviewed more than 100 treatises related to talc and cancer prior to a hearing on the parties’ motions to bar expert witness testimony. At the hearing, the Judge heard from several experts offered by both sides. Dr. Colditz was offered by the Plaintiffs on the issue of general causation of ovarian cancer and Dr. Cramer was presented on the issues of both general and specific causation of ovarian cancer.

In holding that the experts’ testimony should be barred, the Court noted that the standard for determining the reliability of an expert witness opinion is whether the opinion “is based on a ‘sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field.’” When determining whether scientific methodology is valid, trial courts must consider whether “comparable experts in the field would actually rely on the information.”

The Court ruled that the Plaintiffs’ experts’ opinions did not meet this standard. The Court was “disappointed in the scope of Plaintiffs’ presentation . . . it almost appeared as if counsel wished the court to wear blinders.” The Court found that the experts relied solely on small retrospective case-control studies and were “dismissive” of other treatises and studies. The Court stated: “[T]wo 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.”

Most significantly, the Court noted that neither expert “expressed much interest in explaining just how it is that talc-based powder supposedly causes cancer in the ovaries, or for that matter, any part of the human anatomy.” While Dr. Colditz and Dr. Cramer’s main theory was that talc flows upstream and lodges in the ovaries, causing inflammation, and then cancer, the expert seemingly ignored the fact that neither plaintiff had any observable inflammation, according to the plaintiff’s own expert pathologist.

While the Court described Dr. Colditz as “a brilliant scientist and dazzling witness” and Dr. Cramer as a “distinguished professional,” it noted: “Instead of a plausible explication of a hypothesis for the causal link between talc-based powder and ovarian cancer, what the court received was a made-for-litigation methodology, to wit, the subjective mingling of risk factors to advance the base-line risk for each of the Plaintiffs. . . The knowledge learned to date from epidemiology studies involving talc and ovarian cancer is insufficient to prove ovarian cancer by the numbers.” The Court further noted that each plaintiff had significant risk factors for ovarian cancer that were ignored by these experts including: obesity, nulliparty, infertility, past use of an IUD, psychotropic medication, smoking, exposure to hair dye, irregular cycles, early menarche, polycystic ovarian syndrome, and potential BCRA diagnosis.

Plaintiffs’ counsel plans to appeal the ruling. As talc-based litigation increases, we anticipate that experts on both sides will emerge in this growing field. The attorneys at Lewis Brisbois make every effort to stay informed of the latest decisions impacting mass tort litigation in order to provide the best legal representation for our clients.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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