Johnson & Johnson has faced widespread legal exposure relating to its flagship talc powder product. In the past several years, juries in state court have found that talc powder was to blame for ovarian cancer and have assessed the company with steep damages in talcum powder cancer lawsuits. This culminated with a multi-billion dollar verdict in favor of a group of plaintiffs in Missouri. Now, there is federal multi-district litigation that is making its way through the discovery phase. Since the case is largely based on scientific evidence, a recent hearing may prove crucial to plaintiffs’ chances for success when the bellwether cases go to trial.
The allegations that Johnson & Johnson faces stem from the fact that there is at least some scientific evidence that its talc powder contains traces of asbestos. Talc and asbestos occurring near each other naturally in the ground so it is entirely possible, and perhaps probable, that where one is found, the other will be present too. This has been an issue that has been debated scientifically for decades. The company has been a part of the debate, attempting to influence scientific research to show that its talc powder is safe. Regardless, the company has known about the possibility that its talc powder could pose a danger to users going as far back as the 1950s.
There have been numerous lawsuits brought against the company by women (and even some men) who have been long-term users of the product and have contracted various forms of cancer. Most of these lawsuits have been filed in federal court, but some trials have taken place in state court. Notably, a group of 23 women sued Johnson & Johnson in state court in Missouri. In 2018, the jury returned a verdict, finding the company liable and assessing the company with $4.7 billion in damages. Much of the award was in the form of punitive damages as the jury was put off by the pattern of corporate behavior, insofar as the company has known of the potential danger of the product yet has focused its efforts on influencing the scientific debate.
In July 2019, there was a key hearing in the federal multi-district litigation. Over 11,000 cases have been consolidated for purposes of discovery. This means that the rulings that the judge makes will govern what evidence is allowed in at each of these individual trials. Here, the hearing that was held was a Daubert hearing. This refers to a key Supreme Court decision that sets the standard for when a court should admit expert testimony. In a case such as this, expert testimony is crucial to proving the plaintiffs’ allegations. Oftentimes, the scope of the scientific evidence that is allowed into court will dictate whether the plaintiffs ultimately achieve a favorable outcome. The Daubert standard is that the expert testimony must be scientifically valid and applicable to the case. The judge will apply a multi-factor test to the experts and their testimony in order to reach a conclusion. This issue is raised before the trial as defendants will try to limit the amount of evidence that plaintiffs can put in front of the court.
Here, the cases are largely built on scientific evidence. Plaintiffs have lined up testimony from 22 different scientific and expert witnesses. Johnson & Johnson is challenging each of the witnesses and asking the court to not accept their testimony. In some cases, the company is challenging the experts’ actual testimony, and challenging their qualifications in others. In the case of at least one other witness, Johnson & Johnson is claiming that the witness lied in their testimony. Since the plaintiffs’ case is largely dependent on expert testimony, the company is asking the court to dismiss all of the lawsuits after it disqualifies the experts.
Given the number of cases filed against the company and the amount of damages that the state courts have assessed, this court ruling is crucial for Johnson & Johnson and the company will try to find any grounds possible to disqualify the witnesses. At the same time, the company is arguing to have its own experts admitted. One of Johnson & Johnson’s experts is a medical professor who claims that there is no linkage between talc powder and cancer. Although the point of competing expert testimony is to let the jury decide which set of experts is more credible, Johnson & Johnson is attempting to persuade the judge to make the decision before the jury ever hears the evidence.
Now, the court will have to review the testimony and qualifications of each expert before issuing a ruling as to whether their testimony is admissible. The court could decide to admit some experts while excluding others. It will likely take the court some time to issue its ruling. The trial schedule will depend on when the court rules and the substance of its ruling. The judge has not yet selected any bellwether cases to be tried first and, it is possible, that after the Daubert ruling the judge could designate several bellwether cases. In any event, the ruling will have major implications for Johnson & Johnson given the stakes and the fact that the company’s share price has been suppressed due to massive potential liability that it faces.