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Talc 9/8
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J&J Talc Suits Show Evidence Standards Vary Among Courts
Sep 7, 2016 | Law 360
By Emily Field
A New Jersey state judge's decision to toss two suits alleging that Johnson & Johnson's talcum-based products caused ovarian cancer on the heels of two major trial losses for the company in similar cases highlights the different views courts have taken on the validity of scientific evidence linking talc to the disease. -
Ruling could help Johnson & Johnson in baby powder cancer suits, report says
Sep 7, 2016 | NJ.com
By Craig McCarthy
A New Jersey's judge's decision to throw out two women's lawsuits against Johnson & Johnson could help the health-care company in a number of other suits over its talcum powder, Bloomberg reports. -
J&J Hit With More Talcum Powder Ovarian Cancer Claims
Sep 7, 2016 | Law 360
By Shayna Posses
A Louisiana woman became the latest to allege that Johnson & Johnson’s talcum powder products caused her to develop ovarian cancer in a proposed class action filed in federal court Wednesday, days after a New Jersey state judge tossed two actions making similar claims. -
Talcum powder unlikely to have killed woman, expert says
Sep 7, 2016 | Irish Times
By Conor Pope
A leading respiratory consultant has said people should not be unduly alarmed by the findings of a Dublin inquest earlier this week, which linked the death of a woman to the ingestion of talcum powder.
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J&J Talc Suits Show Evidence Standards Vary Among Courts
Sep 7, 2016 | Law 360
By Emily Field
A New Jersey state judge's decision to toss two suits alleging that Johnson & Johnson's talcum-based products caused ovarian cancer on the heels of two major trial losses for the company in similar cases highlights the different views courts have taken on the validity of scientific evidence linking talc to the disease.
Months after Missouri state juries slammed J&J with $55 million and $72 million verdicts in suits claiming that the company's talc products caused two women to develop ovarian cancer, a New Jersey state judge found on Friday that expert witnesses offered by women with similar claims were rife with gaps and didn't even explain how the presence of talc in the ovaries could cause cancer.
Litigation over claims that talc products can cause ovarian cancer is relatively young, but the results from different jurisdictions highlights how judges take varying approaches to their roles as gatekeepers in deciding whether to let scientific testimony reach a jury, attorneys said.
"In science, the general causation question of whether talc can cause ovarian cancer — that same answer ought to be forthcoming in Missouri, New Jersey, California," said David Faigman, acting chancellor and dean of the University of California Hastings College of the Law. "Science is kind of unusual in it presents questions that transcend the individual case, and the courts should be concerned about a perception that justice is not fair and equal and consistent across the country."
In his detailed ruling granting summary judgment to J&J on Friday, Atlantic County Judge Nelson C. Johnson said that although Dr. Graham Colditz and Dr. Daniel Cramer were qualified, their areas of scientific inquiry, reasoning and methodology skewed more toward advocacy than from objective science.
"As these proceedings drew to a close, two words reverberated in the court's thinking: narrow and shallow," Judge Nelson said. "It was almost as if counsel and the expert witnesses were saying, 'Look at this, and forget everything else science has to teach us.'"
However, Judge Johnson's biggest problem was their failure to coherently explain how talc-based powder can cause cancer in the ovaries.
"No witness for the plaintiffs ventured to articulate just how it is that talc in the ovaries — or what it is about talc in the ovaries — that sets off a chain of events which purportedly causes ovarian cancer," the judge said.
Notably, one of the causation witnesses in the New Jersey case, Dr. Cramer, had testified in the Missouri trial over Gloria Ristesund's ovarian cancer claims. He had offered testimony on both specific and general causation of ovarian cancer.
While the majority of states have adopted the federal Daubert standard to evaluate whether scientific expert testimony should be presented to a jury, both Missouri and New Jersey are among the few outliers that have not.
New Jersey courts rely on the Kemp standard, which is based on the state Supreme Court's 2002 ruling in Kemp v. State of New Jersey. Traditionally, the New Jersey state standard for expert testimony is considered more lenient than the federal Daubert standard, Daniel Eichhorn of Cullen and Dyckman LLP noted.
For its part, Missouri's standard is set by state statute, which attorneys said takes more of a "hands-off" approach to evaluating the reliability of an expert's methods.
Despite New Jersey's more lenient standard for expert testimony, experts said that Judge Johnson undertook a fairly rigorous analysis of the experts' testimony.
Peter Goss of Blackwell Burke PA noted that the judge used the federal manual on scientific evidence to aid in his analysis.
"Even though New Jersey has its own standards, the court really pursued the sort of analysis typical of a Daubert hearing and a Daubert ruling," Goss said. "Missouri law does not empower trial judges to the same degree to really dive in and attack the science."
In particular, the judge said that the two key causation witnesses for plaintiffs Brandi Carl and Diana Balderrama kept their analysis limited to smaller kinds of studies that can introduce bias while seeming skeptical of larger studies pointed out by J&J.
"If a judge takes that gatekeeping role as seriously as this judge did, it really has a significant effect on the outcome," Franco Busby of Faegre Baker Daniels said.
Another discrepancy between the New Jersey and Missouri cases is found in the J&J internal documents. At the most recent trial in that state, a 1986 J&J internal document noting "retrospective studies have implicated talc use in the vaginal area with the incidence of ovarian cancer" was presented to the jury.
But Jere Beasley, one of the attorneys for Carl and Balderrama, said that Judge Johnson's decision on Friday fails to take into account those internal documents from J&J that show that the company recognized that there was a risk of ovarian cancer but failed to warn consumers for decades.
Beyond state level, there's a circuit split even within the federal judiciary on the question of how aggressively judges ought to pursue the gatekeeping role, Faigman said. In the Second and Ninth circuits, there's a more hands-off view, but in others, such as the Third, Fourth and Sixth, judges take the opposite tack, according to Faigman.
The problem goes back to the Daubert opinion itself, as both types of approach can be supported in the opinion, he said.
"The Supreme Court is going to revisit this question [of a judge's approach to expert opinions] since there's just so much variability regarding what evidence comes in and what comes out," Faigman said.
The cases are Brandi Carl v. Johnson & Johnson et al., suit number ATL-L-6546-14, and Diana Balderrama v. Johnson & Johnson et al., suit number ALT-L-6540-14, in the Superior Court of New Jersey Law Division, Atlantic County.http://www.law360.com/articles/836544/j-j-talc-suits-show-evidence-standards-vary-among-courts
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Ruling could help Johnson & Johnson in baby powder cancer suits, report says
Sep 7, 2016 | NJ.com
By Craig McCarthy
A New Jersey's judge's decision to throw out two women's lawsuits against Johnson & Johnson could help the health-care company in a number of other suits over its talcum powder, Bloomberg reports.
There are around 1,000 lawsuits pending against Johnson & Johnsonthat claim the company's talcum powder can lead to a greater risk of ovarian cancer.
Judge Nelson Johnson ruled in Atlantic City Friday that the two New Jersey women did not produce enough medical evidence to support their claims, according to Bloomberg.
There are close to 200 suits against Johnson & Johnson pending in New Jersey over the talcum powder.
The New Brunswick-based company lost a lawsuit in Missouri earlier this year and was ordered to pay out $72 million to the family of a woman who died of ovarian cancer. The cancer was linked to the use of Johnson & Johnson's talcum powered.
http://www.nj.com/news/index.ssf/2016/09/ruling_could_help_johnson_johnson_in_baby_powder_c.html
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J&J Hit With More Talcum Powder Ovarian Cancer Claims
Sep 7, 2016 | Law 360
By Shayna Posses
A Louisiana woman became the latest to allege that Johnson & Johnson’s talcum powder products caused her to develop ovarian cancer in a proposed class action filed in federal court Wednesday, days after a New Jersey state judge tossed two actions making similar claims.
Shintelle Joseph joined the slew of consumers suing over J&J's talcum powder products, contending in her Louisiana federal court suit that the company touted the products as a safe and gentle way to reduce odor and moisture all over the body without warning about the risks of using talc in the genital area.
“Defendants have known, or should have known, that the products are unreasonably dangerous when used by a woman in her perineal area but have continued to design, manufacture, sell, distribute, market, promote, and supply the products so as to maximize sales and profits at the expense of public health and safety in conscious disregard of the foreseeable harm to the consuming public, including plaintiff,” the complaint says.
Other suits over J&J’s talc-based products have yielded mixed results. A Missouri state juryawarded $55 million to a woman in May who said she developed ovarian cancer following decades of using talc baby powder on her genitals, a second major defeat for the company after a jury handed down a $72 million verdict in a similar case in February.
But last week, Atlantic County Judge Nelson C. Johnson dismissed a pair of suits making similar claims after determining that the women’s expert witnesses offered lacking scientific evidence, failing to even explain how the presence of talc in the ovaries causes ovarian cancer.
Studies by one of those witnesses, Dr. Daniel Cramer, are among the more than a dozen studies highlighted in Joseph’s Wednesday complaint. According to the complaint, Cramer was involved in the first epidemiological study performed on talc powder use in the female genital area.
The 1982 study found a 92 percent increased risk of ovarian cancer in women who used talc in their genital area and the doctor recommended that J&J place a warning label on its talcum powders, the complaint says.
Since then, there have been about 22 additional epidemiological studies regarding the association between talc and ovarian cancer, nearly all of which have reported an increased risk of developing the disease associated with women's genital talc use, Joseph alleges.
After a 1993 study by the U.S. National Toxicology Program found talc to be a carcinogen, a trade group formed the Talc Interested Party Task Force, of which J&J was a member, the complaint says. In an effort to defend talc use and prevent regulation, the task force hired scientists to perform biased research, edited their reports and knowingly released false information to the public, the suit says.
Joseph contends that she started applying talcum powder and J&J’s Shower to Shower product to her genital area when she was about 17 years old, continuing for more than a decade before her ovarian cancer diagnosis.
She brings claims including negligence, fraud, strict liability, breach of express and implied warranty and violations of Louisiana consumer protection laws on behalf of all people and their spouses who have or will develop injuries due to talcum powder-based products.
Carol Goodrich, spokeswoman for Johnson & Johnson Consumer, said in a Wednesday statement that they recognize that women and families affected by ovarian cancer are searching for answers and deeply sympathize with everyone affected by the disease.
"We are defending the safety of Johnson’s Baby Powder because science, research, clinical evidence and decades of studies by medical experts around the world continue to support the safety of cosmetic talc," Goodrich said.
Joseph is represented by James R. Dugan II, Douglas R. Plymate, Lanson Bordelon and David Scalia of the Dugan Law Firm APLC.
Counsel information for J&J wasn’t immediately available.The suit is Shintelle Joseph v. Johnson & Johnson et al., suit number 3:16-cv-00590, in the U.S. District Court for the Middle District of Louisiana.
http://www.law360.com/articles/837322/j-j-hit-with-more-talcum-powder-ovarian-cancer-claims-
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Talcum powder unlikely to have killed woman, expert says
Sep 7, 2016 | Irish Times
By Conor Pope
A leading respiratory consultant has said people should not be unduly alarmed by the findings of a Dublin inquest earlier this week, which linked the death of a woman to the ingestion of talcum powder.
Dr Des Murphy, of Cork’s University College Hospital, told The Irish Times that the case was “most unusual” and he stressed that the death of 49-year-old Malahide woman Therese Lawlor last year was almost certainly not as a result of the inhalation of talcum powder.
The woman died in April 2015 but had suffered ill health since a workplace accident in 1993.
At a hearing this week at the Dublin Coroner’s Court, it emerged that the most likely cause of death was exposure to talcum powder earlier in Ms Lawlor’s life.
The consultant pathologist Dr Munah Sabah told the court she had found needle-shaped silicate deposits in the woman’s spleen, liver and bone marrow during a postmortem examination.
She noted that foreign material circulating in the woman’s system had created pulmonary hypertension which lead to her death.
“This would appear to be a most unusual case,” Dr Murphy said.
“Talc can cause inhalation injuries in the lungs, but typically we would only see that in people who were exposed to it at a very high level, people working with it in confined spaces or mining it.”
Environmental factors such as mining were ruled out by the court.
Dr Murphy said the fact that there were silicate deposits found throughout the woman’s body and not only in her lungs suggested the talc had not been ingested through inhalation but had taken an intravenous route.
“In cases where talc has been inhaled, scarring tends to be confined to the lungs, but when we see what is known as disseminated talcosis, it typically means it was almost certainly absorbed by a route other than the lungs.”
http://www.irishtimes.com/news/ireland/irish-news/talcum-powder-unlikely-to-have-killed-woman-expert-says-1.2783120
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