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Monday, September 16, 2019

In one state, testimony 'made for litigation'; In another, part of $127M in verdicts

By Carrie Salls and John O'Brien | Sep 27, 2016

NEW BRUNSWICK, N.J. (Legal Newsline) – How much could rules governing which experts can testify in civil trials matter? In the case of Johnson & Johnson, so far it's possibly $127 million - and likely to grow.

As the company fights lawsuits alleging its talcum powder products caused ovarian cancer, Johnson & Johnson has been nailed with two verdicts in Missouri - $72 million in the case of an Alabama woman who has passed away and $55 million in a South Dakota woman's lawsuit.

But when the same expert witnesses who told Missouri juries of a link between talcum powder use and ovarian cancer tried the same in New Jersey, a state judge turned them away. Instead, Judge Nelson Johnson granted summary judgment to the company, saying the testimony was "made for litigation."

George Talarico of Locke Lord LLP said the standard for admissibility of expert testimony is more relaxed in Missouri, which may have explained the large number of talc lawsuits filed in that state.

“Missouri takes a much more laissez-faire approach to expert testimony, giving much greater deference to the jury,” Talarico told Legal Newsline. “New Jersey judges are obligated to take a more stringent approach, which is exactly what Judge Johnson did in his thoughtful opinion.”

Talarico said the New Jersey decision is interesting because Johnson went out of his way to make the points that the plaintiffs’ experts were eminently qualified as scientists and doctors, even calling one of the plaintiffs’ experts “a brilliant scientist and a dazzling witness,” but that their conclusions were not based on sound scientific or medical methodology.

“(The qualifications of the witnesses), however, didn’t save the plaintiffs’ case from the ultimate conclusion that their experts’ testimony was not fundamentally rooted in science or medicine, but rather that it was made for litigation,” Talarico said.

On March 10, Johnson & Johnson asked St. Louis Circuit Court Judge Rex Burlison to disallow the testimony of doctors Daniel Cramer and Graham Colditz in Gloria Ristesund's case. It had done the same months earlier in the late Jacqueline Fox's case.

In both instances, the two were allowed to testify. Johnson & Johnson is appealing both verdicts.

The American Cancer Society says more research is needed to determine a causal link between talc and ovarian cancer. For any individual woman, if there is an increased risk, the overall increase is likely to very be small, the ACS notes on its website.

Plaintiffs attorney Jere Beasley of Alabama has said his firm has been contacted by thousands of prospective plaintiffs in the wake of the massive St. Louis verdicts. He is also armed with 1997 internal memo from a Johnson & Johnson medical consultant suggesting that “anybody who denies (the) risks between 'hygenic' talc use and ovarian cancer will be publicly perceived in the same light as those who denied a link between smoking cigarettes and cancer."

“What Johnson and Johnson did to cover up what it knew to be the deadly risk of its centerpiece product is simply outrageous,” Beasley said earlier this year.

“It is hard to imagine how corporate executives could be so callous. But the internal company documents that were brought to light through this trial show clearly that that is exactly the case.”

Missouri is one of the states that has not adopted the Daubert standard for expert testimony; all federal courts do.

The Daubert standard, established in a 1993 U.S. Supreme Court decision, requires judges to evaluate experts and their testimony, and it provides for hearings on their qualifications.

Missouri doesn't use Daubert's counterpart, the Frye standard. Instead, it has its own that was created in 1989 and adopted the state Supreme Court in 2003.

Legislators passed a bill adopting the Daubert standard, but Gov. Jay Nixon vetoed it in July.

Experts in Missouri disagreed on the importance of Nixon's veto. Some claim without Daubert, judges hold too much power in determining the admissibility of an expert witness, leaving too much uncertainty for businesses that thrive on certainty.

Others say the statute in place is sufficient and that Missouri judges already adhere to a strict standard.

But the New Jersey judge didn't use the Daubert standard either. He used state law precedent from Kemp v. State of New Jersey, decided by the state Supreme Court in 2002.

"Dr. Colditz's expert opinion... has all the earmarks of a made-for-litigation presentation," Johnson wrote.

Johnson considered the question of whether the plaintiffs proved their experts’ theories of causation are sufficiently reliable as being based on a sound, adequately founded scientific methodology - 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 plaintiffs’ ovarian cancers.

"Accepting, for the sake of discussion, that the case-control studies relied upon by Dr. Cramer - to the exclusion of cohort studies, laboratory studies, cancer biology and the pronouncements of those agencies that study cancer - convey an inference that there is some type of causal association between talc and ovarian cancer, it means nothing without a hypothesis of specific causation," Johnson wrote in his talc ruling.

"No witness for 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. Uttering the term inflammation does not explain the etiology of ovarian cancer, nor can the manipulation of numbers serve as a hypothesis for specific causation.

"Absent the thread, there is no quilt."

Talarico said a similar ruling from Johnson in Accutane litigation in 2015 resulted in the dismissal of about one-third of those pending cases.

Talarico added that the plaintiffs intend to appeal, but “Judge Johnson’s thorough opinion presents some very significant hurdles.”

“(The talc ruling) could have a serious impact on the New Jersey litigation,” Talarico said.

Johnson wrote in the opinion, "'inflammation' was used as a talisman that supposedly explained everything the court needed to know."

Johnson & Johnson had simultaneously asked for summary judgment in the event the doctors' testimony was barred.

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Organizations in this Story

Johnson & Johnson Locke Lord LLP