Cosmetic Talc Litigation Media Coverage - October 17, 2016

Client Attorney Privileged/Attorney Work Product/At Request of Counsel

Legal Trades

1. Judicial 'Gatekeeping' of Experts Has Impact

   Oct 14, 2016 | New York Law Journal

   By Michael Hoenig
   
   
   A hat-tip to noted Kentucky trial lawyer, John L. Tate, whose article in the October 2016 issue of Law Journal Newsletters' "Product Liability Law & Strategy" newsletter is titled, "Do Daubert Motions Really Work?"1 Tate, a member of that newsletter's Board of Editors, reports on the results of two sizable studies gauging the relative effectiveness of Daubert motions challenging the reliability of proffered experts. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, was the 1993 decision by the U.S. Supreme Court that ushered in a robust era of judicial "gatekeeping" and required that scientific expert testimony had to be "not only relevant but reliable."

Local Outlets

2. Professor Hanington's Speaking of Science: Does talc cause cancer?

   Oct 15, 2016 | Elko Daily Free Press

   By Gary Hanington, Great Basin College
   
   
   My first probe into science started in second grade when the town I lived in dumped a truckload of huge pebbles into a hole at the bottom of our road, making what I would call a poor man’s drain for the water that would accumulate after a heavy rain.

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Client Attorney Privileged/Attorney Work Product/At Request of Counsel

Legal Trades

1. Judicial 'Gatekeeping' of Experts Has Impact

   Oct 14, 2016 | New York Law Journal

   By Michael Hoenig

   A hat-tip to noted Kentucky trial lawyer, John L. Tate, whose article in the October 2016 issue of Law Journal Newsletters' "Product Liability Law & Strategy" newsletter is titled, "Do Daubert Motions Really Work?"1 Tate, a member of that newsletter's Board of Editors, reports on the results of two sizable studies gauging the relative effectiveness of Daubert motions challenging the reliability of proffered experts. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, was the 1993 decision by the U.S. Supreme Court that ushered in a robust era of judicial "gatekeeping" and required that scientific expert testimony had to be "not only relevant but reliable."

   Then, in 1997, the Supreme Court issued its decision in General Electric Co. v. Joiner, 522 U.S. 136, 143 (1997), holding that a district court could exclude opinion evidence "that is connected to existing data only by the ipse dixit of the expert." (Ipse dixit refers to an assertion made but not proved). Thus, when there is "too great an analytical gap between the data and the opinion proffered," the court may exclude the opinion. Joiner, 522 U.S. at 146. In the decision in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999), two years later, the Supreme Court confirmed that the judicial gatekeeping obligation applied not only to testimony based on scientific knowledge but also to testimony involving technical and other specialized knowledge. Reliability of the expert's methodology was a key. And, in Weisgram v. Marley Co., 528 U.S. 440, 442 (2000), the Supreme Court said that expert evidence must meet "exacting standards of reliability." Federal Evidence Rule 702 changes and the Advisory Committee note reflect these rulings.2

   The foregoing developments seem weighty enough on paper. Further, experienced litigators surely have engaged in Daubert motion practice witnessing dispositive consequences from time to time. But, comprehensively speaking and across the board, has Daubert gatekeeping had a profound impact? That is the question Tate's article addressed, particularly in the wake of the two massive studies issued, respectively, in October 2015 and May 2016. The first study is by the Searle Civil Justice Institute of the Law & Economics Center at George Mason School of Law. The title is "Timing and Disposition of Daubert Motions in Federal District Courts: An Empirical Examination." [http://bit.ly/2c4szHc] This report covers the years 2003 to 2014 and examined the outcomes in some 2,127 Daubert motions from 91 federal district courts.

   The second (May 2016) study was issued by PriceWaterhouseCoopers (PWC) and is titled, "Daubert Challenges to Financial Experts" [http://pwc.to/2bQPmFz], discussing trends and Daubert outcomes for the years 2000 to 2015 involving motions focused on financial experts in some 2,014 cases. Tate's article duly notes that the two studies are "remarkable for the number of decisions analyzed by the researchers." The PWC study on outcomes regarding financial experts is, as Tate helpfully observes (and cites), a follow-up to PWC's report in 2014 analyzing 7,299 cases involving financial expert testimony. [See http://pwc.to/2cq57F3] These large data sets result in some informative analyses.Success Rates

   Tate highlights some findings in the Searle Civil Justice study. Thus, the vast majority of Daubert motions—some 71 percent—were made by defendants while plaintiffs made 29 percent. Further, nearly half of the cases involved multiple Daubert motions (averaging some 2.1 motions per case). Nearly two-thirds of the motions challenged medical or technical opinions. "Medical" experts (e.g., physicians, psychologists, toxicologists, etc.) made up 31 percent of the Daubert challenges. Engineering witnesses were the target 24 percent of the time, and accountants at 10 percent.3

   As for success rates, defendants' likelihood of at least a partial grant of their motions was over 50 percent for five lawsuit categories (antitrust, contracts, torts, civil rights, RICO and consumer credit). For a so-called "full grant," i.e., a ruling giving the moving party all the relief requested by the motion, defendants won 25 percent of the time.4 When plaintiffs moved on Daubert grounds, they also did well (some 40 percent obtaining some relief and 18 percent getting a "full grant.") Plaintiffs scored their best results in real property and contracts cases.5

   The PWC study on Daubert challenges to financial experts, says Tate, confirms that "the most common reason" for excluding financial opinion testimony is "lack of reliability." Out of 2,014 cases analyzed, 896 cases resulted in partial or complete exclusion of financial testimony, an average exclusion rate of 44 percent. The percent partially or wholly excluded in product liability cases was 48 percent; in securities litigation, 47 percent; intellectual property, 49 percent; and bankruptcy, 47 percent.6 Of the Daubert financial expert rulings appealed (some 64 appeals), a significant majority were upheld by the appellate court. (89 percent where the testimony was allowed by the trial judge; 80 percent where it was at least partially excluded).7

   Even without the benefit of statistical analyses of large data sets of cases, litigators can readily see from individual cases that judicial screening of experts pursuant to Daubert's reliability criteria operates with considerable impact. But this does not happen automatically. Well-crafted motions are critical.Talc Powder

   One can see dynamics of intensive judicial gatekeeping in a New Jersey state court's dismissal, on Sept. 2, of two lawsuits claiming that Johnson & Johnson's talc-based product (J&J's Baby Powder) caused the plaintiffs to develop ovarian cancer. The decision throwing the cases out is called Carl v.Johnson & Johnson.8 The two dismissed claims are part of a deluge of more than 1,000 lawsuits filed in federal and state courts claiming defendant's talcum powder caused cancer. Two juries in St. Louis earlier this year sided with plaintiffs there and rendered large damage awards.

   In the Carl case, however, New Jersey Superior Court (Atlantic County) Judge Nelson Johnson examined the expert evidence offered by each side because defendants had filed a motion to bar the testimony of plaintiffs' experts and, if this application were granted, also moved for summary judgment. Judge Johnson stated the question before the court: "Have plaintiffs shown that their experts' theories of causation are sufficiently reliable as being based on a sound, adequately-founded scientific methodology, to wit, 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 plaintiff's ovarian cancers?"

   The court acknowledged its role as a "gatekeeper" who must assess "whether or not the hypotheses of causation advanced by plaintiffs' experts are sufficiently reliable to be presented to a jury." The court conducted a hearing, after earlier examining reports, abstracts of epidemiology studies and peer-reviewed articles. Over 100 treatises relating to talc, cancer and miscellaneous related scientific issues were reviewed by the court prior to and during the hearing. The court attached to its opinion Appendices A through E cataloguing a portion of the articles discussed at the hearing together with public pronouncements by agencies possessing authoritative knowledge on cancer.

   The court focused on the experts' methodological deficiencies. For example, one "dazzling" expert witness for the plaintiff, Dr. Graham Colditz, could not explain the biological mechanism for how talc causes cancer. Thus, his opinion was an ipse dixit and had "all the earmarks of a made-for-litigation presentation."

   The court concluded that, though eminently qualified, the experts' areas of scientific inquiry, reasoning and methodology "are slanted away from objective science and towards advocacy." The opinions failed to demonstrate "that the data or information used were soundly and reliably generated and are of a type reasonably relied upon by comparable experts." Accordingly, defendants' motions to bar the experts' testimony and for summary judgment were granted.

   Endnotes:

   1. 35 LJN's Product Liability Law & Strategy, No. 4, pp. 3-5 (Oct. 2016).

   2. For a comprehensive discussion on these and post-Daubert decisions, see my chapter, "Gatekeeping: Reliability of Expert Testimony Under Daubert (And Frye)", in the N.Y. State Bar Ass'n Book, Preparing For And Trying The Civil Lawsuit, vol. 2, chapt. 14, pp. 14-3 to 14-115 (2016 revision). For a helpful, handy guide on how to successfully use expert witnesses, see T. Budd, E. Cottle & C. Hutchinson, "Expert Witness Answer Book, 2016" (PLI), which contains extensive information on Daubert considerations in question-and-answer format.

   3. See Tate, supra n. 1, at p. 3; Searle Report, at pp. 6-7.

   4. See Searle Report, at pp. 8-9; Tate, supra n. 1, at p. 4.

   5. Searle Report, at pp. 8-9; Tate, supra n. 1, at p. 4.

   6. Tate, supra n. 1, at pp.4-5; PWC Report, at pp. 28-19 (and figure 7).

   7. Tate, supra n. 1, at p. 5; PWC study, at p. 35 (and figure 15).

   8. 2016 N.J. Super. Unpub. LEXIS 2102 (N.J. Super. Ct. Sept. 2, 2016).

   http://www.newyorklawjournal.com/id=1202769977995/Judicial-Gatekeeping-of-Experts-Has-Impact?mcode=1202615326010&curindex=0&curpage=ALL
   

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Local Outlets

2. Professor Hanington's Speaking of Science: Does talc cause cancer?

   Oct 15, 2016 | Elko Daily Free Press

   By Gary Hanington, Great Basin College

   My first probe into science started in second grade when the town I lived in dumped a truckload of huge pebbles into a hole at the bottom of our road, making what I would call a poor man’s drain for the water that would accumulate after a heavy rain. Noticing this cache of new addition to our neighborhood, all the kids from three blocks around descended on the pile with the intent of cracking open the stones hoping to find geodes or perhaps fossils. You have to understand that because of glacial deposits there are just no outcrops of rock on Long Island and certainly no minerals. This find was a bonanza yielding quartz, rose quartz, clear quartz, and some iron rich conglomerate that Corky, the leader of our rockhounding group, called “Indian paint pots.”

   Not long after this, presumably seeing the collection of drainage pit broken rocks I brought home, my dad bought me a mineral hardness kit. It came neatly packaged in a three by three compartment set, nine specimens in all, corresponding with the Mohs’ Hardness scale. According to Herbert S. Zim, author of the classic Rocks and Minerals, you can easily remember the order by saying: “The Girls Can Flirt And Other Queer Things Can Do.” With talc as number one, calcite as three and quartz as seven, topaz was eight, corundum was nine and of course diamond was the last. A quaint saying but it’s probably against the law nowadays to teach that mnemonic device without getting a visit from the feds and certainly benign compared to the resistor color code ditty we learned back in electronics lab years ago. Nevertheless, talc, the mineral in the news these days because of huge jury awards, claims the lowest position. It is the softest common rock one can find.

   Talc is a clay mineral composed of hydrated magnesium silicate. It has the chemical formula: Mg3(SiO3)4.H2. It usually occurs as fibrous masses and because it is so soft, can be scratched with one’s fingernail. It has a specific gravity of approximately 2.5 and a clear or dusty luster, and is translucent to opaque. Talc is not soluble in water, and has what can be described as a greasy feel. On a streak plate it leaves a white line. Soapstone is a metamorphic version composed predominantly of talc and often used in the welding trade to mark steel.

   Talc is a widely used mineral. It is used in many industries, including as filler material in paper and plastic making, paint and coatings, rubber, food, electric cable, pharmaceuticals, cosmetics, and ceramics. Talc finds use as a cosmetic in talcum powder and as a lubricant because it is so soft. It is used to coat the insides of inner tubes and rubber gloves during manufacture to keep the surfaces from sticking. It is also employed as a matting agent in earthenware glazes and can be used to produce magnesia mattes at high temperatures. Since 1894, when Johnson & Johnson’s Baby Powder was launched, talc has been used to prevent diaper rash on tiny bottoms.PauseCurrent Time0:00/Duration Time0:00Loaded: 0%Progress: 0%0:00Fullscreen00:00Unmute

   Over the last 20-plus years there has been some speculation that talc powder contributes to certain types of disease, mainly cancers of the ovaries and lungs. One particular issue with talc is its frequent association in underground deposits with asbestos ore (talc and asbestos are both magnesium silicates). But because of the shunning of asbestos in the 1970s strict measures have been taken to insure that cosmetic and food grade talc is asbestos free.

   Some studies performed, especially those listed by the American Cancer Society, claim to have found some small linkage while other studies by other groups have not. One study suggested genital talcum powder use may slightly increase the risk of endometrial (uterine) cancer in women who are past menopause. But other studies have not found such a link. They say further studies are needed to explore this topic. One interesting “scientific” study published in 1993, by the U.S. National Toxicology Program, found that cosmetic grade talc was correlated with tumor formation in rats forced to inhale talc for 6 hours a day, five days a week over at least 113 weeks.

   In February of this year, a St. Louis jury awarded $ 72 million to a family of an Alabama woman who died of ovarian cancer, her family claiming that the use of Johnson & Johnson Talcum Powder was the root of her cancer. In May 2016, a South Dakota woman was awarded $55 million as the result of another lawsuit saying that her use of that company’s baby powder for 35 years had caused her cancer also. J&J spokeswoman Carol Goodrich said the verdict contradicted 30 years of research supporting the safety of cosmetic talc. The company intends to appeal and will keep defending its products’ safety.

   According to Wikipedia, at this time more than 1,200 other talcum powder-related lawsuits are pending. Most are in California.

   http://elkodaily.com/lifestyles/professor-hanington-s-speaking-of-science-does-talc-cause-cancer/article_74d2eef7-6c68-504e-8c46-8c41898b2884.html
   

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