In a victory for thousands of women suing Johnson & Johnson over claims that the company’s baby powder and other talc products caused their ovarian cancer, a court-appointed special master recommended on Tuesday that they be allowed to present testimony at trial from experts who support that link.
The recommendation from retired U.S. District Judge Freda Wolfson, in long-running litigation that includes more than 67,500 lawsuits in the federal court in New Jersey, allows the cases to move towards the first trial in federal court potentially later this year. Product liability lawsuits, such as the J&J cases, rely on experts to establish that the product is capable of causing the alleged harm. Decisions on expert testimony can sometimes be a major turning point in these cases.
U.S. District Judge Michael Shipp in Trenton, New Jersey, who is overseeing the litigation, brought in Wolfson to help evaluate what expert testimony should be allowed at trial, based on whether it met the scientific standards set out in federal law. The ruling is a recommendation to Shipp, who can weigh objections from both sides before deciding whether to adopt them. A key determination by Wolfson in her 658-page decision was that the plaintiffs’ experts should be allowed to testify there is a causal link between using J&J talc products and cancer, which the company disputes.
“I find, by a preponderance of the evidence, that the Plaintiffs’ experts have applied reliable methodologies to arrive at their opinions that the pre- and post-2020 epidemiologic studies, taken as a whole, demonstrate a positive, statistically significant association between genital talc powder use and ovarian cancer,” Wolfson wrote. Wolfson, however, will also allow testimony from experts J&J put forward to counter the plaintiffs’ claims that talc can cause ovarian cancer.
Wolfson emphasized that her role was not to evaluate the experts’ conclusions, but to decide if their methods were reliable enough to present to a jury for its consideration.
She agreed with J&J that expert testimony linking heavy metals and fragrance chemicals in the company’s products to cancer should be excluded, as should a theory that talc can migrate to the ovaries if it is inhaled. She declined to rule on some requests to exclude testimony, pending hearings later this month and in early February. In a statement, J&J Worldwide Vice President of Litigation Erik Haas said Wolfson’s ruling was erroneous and the company would be appealing to Shipp. Haas said the rules governing judges’ evaluation of experts gave them a “gatekeeping duty” to ensure the plaintiffs’ expert opinions were reliable.
