Law360, New York
After last year’s trio of multimillion-dollar verdicts against Johnson & Johnson over claims that its talc-based baby powder causes ovarian cancer, attorneys will be watching the latest trial, set to kick off Thursday morning, to see if the fourth time will be a charm for the company.
The stakes are high for J&J, which racked up nearly $200 million in losses in Missouri state court last year as it faces more than 1,000 such cases in the state, plus centralized litigation in California and New Jersey. The pharmaceutical giant will have another crack at convincing jurors that the science doesn’t support a link between ovarian cancer and talcum powder — an argument that’s won favor with a state judge in New Jersey, who last fall tossed suits on expert testimony grounds.
In Missouri, plaintiffs attorneys have had a year since the first trial to refine their arguments, which revolve around women’s use of the product on their vaginal area, said Florence A. McClain of Lewis Brisbois Bisgaard & Smith LLP.
“Johnson and Johnson’s biggest challenge is to make sure they are thinking outside the box — they need to force plaintiffs counsel outside their standard approach to these cases,” McClain said.
In the present case, 56-year-old Tennessean Nora Daniels claims that she developed ovarian cancer after using J&J talc products for more than three decades. Like the others, she argues that the talc traveled to her ovaries and accumulated there, causing cancer, and that J&J had long known about this danger but failed to warn consumers.
The first 2016 trial concerned the ovarian cancer death of Jacqueline Fox; a year ago, the jury awarded her estate $72 million.
In the next trial, plaintiff Gloria Ristesund was awarded $55 million in May, including $50 million in punitive damages against J&J and its subsidiary Johnson & Johnson Consumer Inc. And a third Missouri jury in October hit J&J and its talc supplier with a $70 million verdict that includes $65 million in punitive damages.
J&J is appealing the verdicts, but given the high-profile losses so far — and a recent decision by the Missouri Supreme Court giving the go-ahead to this and other talc trials set for this spring — a defense win would help slow down the plaintiffs’ momentum in these cases, attorneys said.
In past trials, plaintiffs have argued that internal documents show that J&J knew for years about the risks of cancer posed by its iconic baby powder product, but chose instead not to warn women.
“A lot of what is at stake at this trial is, do plaintiffs have a ‘case in a box’ — do they have a recipe that just works in virtually every case?” said Max Kennerly of Kennerly Loutey. “The concept of bellwethers in general is you lose some, you win some and you sort out the valuation of each case. But in talc, it’s just a string of victories.”
During the most recent trial, there was also testimony for the first time from a whistleblower who said that she was told to change adverse event reports from women with cancer.
Those documents have had a powerful effect on jurors, plaintiffs attorneys said.
“I really do think the evidence is so profoundly surprising and shocking that until you see the documents yourself, it’s hard to know what you’d do as a juror,” said Sarah London of Lieff Cabraser Heimann & Bernstein LLP, whose firm is representing talc plaintiffs in California.
For its part, J&J has maintained that the causal connection between cancer and talc lies on shaky scientific ground at best, pointing out in the last trial that talc isn’t recognized as a cause of cancer by agencies like the National Cancer Institute and the U.S. Food and Drug Administration.
That argument found favor with a New Jersey state judge, who found in September that expert witnesses presented by women in two similar suits didn’t even explain how the presence of talc in the ovaries could cause cancer.
Although the judge found that both experts were highly qualified, he found that their reasoning and methodology tilted away from objective science and toward advocacy.
“The science is still obviously being developed, and from a defense perspective, the science is still the place to do a lot of arguments,” McClain said. “They are probably going to keep trying to push the fact that the science is not conclusive that ovarian cancer is caused by the use of baby powder.”
One reason Johnson & Johnson was able to prevail in New Jersey was the judge’s application of a stricter standard for expert testimony than Missouri’s, which is set by state law.
But the company may soon be playing by a friendlier set of rules, said Peter A. Joy, a professor at Washington University School of Law in St. Louis.
“There’s a move afoot in the state Legislature to amend the statute in Missouri to end up having a higher and more difficult bar for admitting expert testimony, more like the standard in New Jersey,” Joy said. “If that happens, it would seem like it would make it difficult in the future for talc cases to gain traction here.”
The proposed bill was recently voted out of committee, and the state’s governor has indicated that he would sign it into law, Joy said.
But the early stage of the science could still prove to be a double-edged sword for J&J if subsequent research ends up supporting the plaintiffs’ claims, he said.
“[The science] may then develop to the point where that higher standard is being met,” Joy said.
The case is Valerie Swann et al. v. Johnson & Johnson et al., case number 1422-CC09326-01, in Missouri’s 22nd Judicial Circuit Court.