Expert Witnesses in the Johnson & Johnson Talcum Powder Trials

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Over the past few years, US-based pharmaceutical giant Johnson & Johnson has been embroiled in extensive US litigation concerned with whether or not their talcum powder causes ovarian cancer in women. Approximately 2 000 trials[1] have been initiated on the issue to date in states including Louisiana, Illinois, New Jersey and Missouri.

The outcomes of the trials have varied: in early 2016, two Missouri verdicts for the plaintiff resulted in damages payments of $127 million. More recently in New Jersey, however, the plaintiff’s claims were dismissed based on concerns relating to the quality of expert witnesses for the plaintiff[2]. In this blog post, we consider the impact that expert witnesses played in this crucial New Jersey decision and the differing impact of expert witness evidence in similar trials across various US jurisdictions.

The New Jersey Trial

In the New Jersey trial of Brandi Carl v. Johnson & Johnson[3], Johnson & Johnson argued that the expert witness evidence presented on behalf of the plaintiff suffered from “multiple deficiencies” and did not establish legitimate grounds for the action. It was contended that the expert evidence attempting to link the use of talcum powder to ovarian cancer was narrow and shallow and that there was no reliable scientific evidence to support the contentions made by the plaintiffs. As such, Johnson and Johnson argued that the expert witnesses should be barred from testifying at trial.

The relevant law

The court held that the relevant question for determination was whether the “[p]laintiffs [have] shown that their experts’ theories of causation are sufficiently reliable as being based on a sound, adequately-founded scientific methodology……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 of Plaintiffs’ ovarian cancers”.[4] In New Jersey, the methodology is the key factor when considering the admissibility of expert evidence in cases concerning harm stemming from a consumer product. The courts accept that litigants attempting to prove harm suffered from the use of a product may face difficulties in recovering from the manufacturer. These difficulties arise if victims are required to wait for general acceptance by the scientific community of a reasonable theory of causation which links the product to the harm alleged. As such, courts in New Jersey operate off the general rule that if the methodology used by an expert is sound, then the conclusion may be introduced into evidence.

The test for such expert evidence was set out in the case of Rubanick v Witco Chem. Corp.[5], where it was held that in order for expert evidence to be deemed reliable, the court must determine that the evidence 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[6] and that a valid methodology is a methodology supported by “prolonged, controlled, consistent and validated experience”.[7] Finally, the court held that “[t]he critical determination is whether comparable experts accept the soundness of the methodology, including the reasonableness of relying on this type of underlying data and information”.[8]

In this case, the court took issue with numerous aspects of the plaintiff’s expert evidence. These aspects included:

  • The fact that the two key witnesses on causation focused primarily on epidemiological ( the study of patterns, causes and effects of health and disease) studies and, within these, limited their analysis to evidence stemming from small, retrospective case-control studies. The court was wary of such evidence since it relates to the incidence of disease within the population and does not consider the cause of an individual’s disease;
  • Failure to consider and address scientific inquiry in other fields such as laboratory studies, cancer biology and animal studies;
  • Failure to provide “a coherent explanation to support their hypothesis for biologic plausibility”; and
  • Failure to explain how the talc-based powder causes cancer in any part of the body, specifically in the ovaries.

As a result, the court held that the expert witness evidence failed to produce a demonstrable hypothesis of specific causation which was grounded in reliable methodology. In other words, the experts failed to demonstrate exactly how tall in the ovaries eventually, results in the formation of ovarian cancer. The court held that while the experts were undoubtedly qualified and experienced, the methodology used and inquiries made veered more toward advocacy than objective science. Ultimately the court held that “the opinions expressed by Plaintiffs’ experts fail to demonstrate “that the data or information used were soundly and reliably generated and are of a type reasonably relied upon by comparable experts.”Rubanick, supra, at 477”.[9]

The Missouri Trials

As noted above, the verdict in the New Jersey trials differs considerably from the success enjoyed by plaintiffs in Missouri. Commentary on the issue by the Florida Record[10] suggests that the disparate outcomes closely correlate to the differences in laws concerning expert witness testimony.

Expert witness testimony law in Missouri differs considerably from a parallel law in other US states. The U.S Chamber of Commerce is currently seeking to amend the relevant Missouri laws which, in their view, set too low a bar for credentials for experts testifying in trials. The Chamber Institute for Legal Reform is aiming for Missouri to adopt the Daubert standard (considered in our recent blog post Expert Opinion or Common Knowledge) established by the U.S Supreme Court which provides for a high standard for expert witnesses. The President of the Institute for Legal Reform claims that the expert witness evidence used in the successful Missouri trials would not have met the standard set out in Daubert and, as such, had the trials taken place in states which had adopted the Daubert standard, the critical expert evidence would not have been admitted.

Conclusion

It is clear that expert witness evidence is critical in the plethora of talcum powder compensation trials currently before US courts, with diametrically opposed results in different states dependant on the standard set for admitting expert testimony. With thousands of more trials in the pipeline, it remains to be seen just how expert witness evidence will affect the outcome in trials in other states where expert evidence on talcum powder and ovarian cancer has not yet been considered.

[1] Brandon Lowrey, “J&J’s Talcum Trial Losses Create Litigation Powder Keg”, Law 360 (May 14, 2016)

[2] Brandi Carl v. Johnson & Johnson, No. ATL-L-6546-14

[3] No. ATL-L-6546-14

[4] Brandi Carl v. Johnson & Johnson, No. ATL-L-6546-14

[5] 125 N.J 421, 432 (1991)

[6] Brandi Carl v. Johnson & Johnson, No. ATL-L-6546-14 citing Rubanick v Witco Chem. Corp. 125 N.J 421, 432 (1991)

[7] Brandi Carl v. Johnson & Johnson, No. ATL-L-6546-14 citing Rubanick v Witco Chem. Corp. 125 N.J 421, 432 (1991)

[8] Brandi Carl v. Johnson & Johnson, No. ATL-L-6546-14 citing Rubanick v Witco Chem. Corp. 125 N.J 421, 432 (1991)

[9] Brandi Carl v. Johnson & Johnson, No. ATL-L-6546-14

[10] Mike Helenthal, “Talc Lawsuits Starting to Pile up for Johnson and Johnson” Florida Record, (July 1, 2016)

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