Flatly denying that perineal use of talc causes ovarian cancer, Johnson & Johnson called on US District Judge Freda L. Wolfson to order Daubert motions to strike expert witnesses on general and specific causation.
There are 57 actions pending in MDL 2738, In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practicesand Products Liability Litigation, Case No. 3:16-md-02738-FLW-LHG.
The issue will turn on whether the judge allows the plaintiff’s experts to testify.
The expert witnesses were excluded by New Jersey Superior Court Judge Nelson C. Johnson in the coordinated Multi-County New Jersey talc litigation. See Carl v. Johnson & Johnson, No. ATL-L-6540-14, 2016 N.J. Super. Unpub. LEXIS 2102 (Law Div. Sept. 2, 2016), appeal pending.
Experts lead to three 8-figure verdicts
However, the expert witnesses testified in Missouri state courts resulting in three 8-figure verdicts against Johnson & Johnson in trials before Judge Rex M. Burlison:
- On October 27 the third jury awarded more than $70 million in damages to Deborah Giannecchini, 62, of Modesto, CA, on her claim that her use of baby powder and other Johnson & Johnson talc products over 40 years caused her ovarian cancer. She was diagnosed with stage 4 ovarian cancer in 2012 and talc was found in her ovaries.
- In February, a jury awarded $72 million to the family of Jacqueline Fox of Birmingham, AL, who used Johnson’s baby powder for 35 years. She was diagnosed with ovarian cancer in 2013 and died last year.
- In May another jury in the same courthouse awarded $55 million to Gloria Ristesund of Sioux Falls, SD. She was diagnosed with cancer in 2011 after using J&J’s talc-based feminine hygiene products for almost 40 years.
J&J called on the MDL court to hold a “science day” in January 2017 when experts for each party can outline their positions and arguments. The company requested that the court select several cases that can be worked up for initial expert discovery on general and specific causation. J&J said it has already disclosed 500,000 pages of documents in discovery and that several corporate officers hae been deposed.
Facing widespread litigation
J&J is also facing litigation in state courts:
- About 200 single-plaintiff cases are pending in the New Jersey state court coordinated proceeding before Judge Johnson.
- 20 multi-plaintiff cases (with about 1,469 plaintiffs) are pending in the aggregate claim litigation proceedings pending before several judges in the 22nd Judicial Circuit Court, St. Louis (City), Missouri.
- Finally, 60 cases (with about 249 plaintiffs) are pending in a California coordinated proceeding, Johnson & Johnson Talcum Powder Cases, Judicial Council Coordinated Proceeding No. 4877. Initially, those cases were assigned to Judge Maren E. Nelson of the California Superior Court for the County of Los Angeles.
Three class actions have been transferred to this MDL proceeding: Mihalich, Estrada and Joseph.
In Mihalich v. Johnson & Johnson, No. 14-CV-600-DRH-SCW, originally filed in the U.S. District Court for the Southern District of Illinois, plaintiffs seek to represent a proposed class of all consumers who purchased Johnson & Johnson’s baby powder in the state of Illinois, asserting causes of action under the Illinois Consumer Fraud and Deceptive Business Practice Act and for unjust enrichment.
- In Estrada v. Johnson & Johnson, No. 2:14-cv-01051-TLNKJN (E.D. Cal. filed June 20, 2014), originally filed in the U.S. District Court for the Eastern District of California, plaintiff seeks to represent a proposed class of consumers who have purchased J&J baby powder in California, alleging violations of the California Consumer Legal Remedies Act, Business & Professions Code, as well as negligent misrepresentation and breach of implied warranty.
- In Joseph v. Johnson & Johnson, No. 3:16-cv-00590-JJB-RLB (E.D. La.), originally filed in the U.S. District Court for the Middle District of Louisiana, plaintiffs seek to represent a proposed personal injury class, alleging negligence, intentional misrepresentation, fraudulent concealment, negligent misrepresentation, failure to warn, design and manufacturing defect, breach of warranty and violation of Louisiana’s Unfair Trade Practices Act.