NEW YORK (Legal Newsline) - New York’s specialized court for asbestos lawsuits could become a pivotal battleground for litigation over talcum powder as plaintiff lawyers seek to establish a record of wins in a court system known for liberal rules and big jury verdicts.
Talc manufacturers Johnson & Johnson and Colgate-Palmolive and their wholesale suppliers insist their products are free from deadly asbestos. But plaintiffs have won two talc trials so far in NYCAL, as the asbestos court is known, and Johnson & Johnson in December joined other defendants in settling a case for what one report said was a total of $1.5 million, after both Reuters and the New York Times ran lengthy stories detailing allegations the company knew about asbestos contamination in its talcum powder.
Johnson & Johnson described that settlement with Texas attorney Mark Lanier as a “one-off” situation and said it plans to vigorously defend the more than 9,000 cases it still faces. It lost a $4.7 billion jury verdict in St. Louis, now on appeal, but won a jury trial in New Jersey in October after unveiling an aggressive new strategy of criticizing the case against it as “a sham created by plaintiffs’ lawyers.”
Fisher
The company also ran full-page ads to counter the Reuters and New York Times articles.
Defendants also can cite a favorable appeals court ruling in Juni v. Ford Motor that should make it harder for plaintiffs to claim even the tiny amount of asbestos their experts say contaminates talcum powder could cause their disease.
Despite the bluster, J&J faces tough odds in NYCAL, which has a reputation for loose rules of evidence and pro-plaintiff juries and has been called a “Judicial Hellhole” by a national tort reform group. One particularly bad sign came in a Nov. 26 order by Judge Manuel Mendez, the coordinating judge in charge of NYCAL’s docket.
In it, Mendez rejected J&J’s motion to dismiss the lawsuit by Ann Zoas and said punitive damages may be warranted of J&J’s “continued insistence there is no asbestos in talc.” J&J settled the case on Dec. 18, two weeks before jury selection was to begin.
Four more talc lawsuits are scheduled to begin trial in NYCAL in January, and the court’s pro-plaintiff rules make it more difficult than in some other jurisdictions for defendants to depose experts and exclude evidence.
New York State uses the so-called Frye standard for scientific evidence, under which experts can testify as long as their methods are “generally accepted” in the scientific community. Federal courts and dozens of states use the tougher Daubert standard under which judges must serve as active gatekeepers, excluding experts whose conclusions aren’t peer-reviewed or replicable by other researchers.
New York’s Frye rule will allow experts like Dr. Ronald Gordon, a research professor of pathology at Mt. Sinai Health System who frequently testifies that talc contains asbestos fibers, a claim J&J says is false. The dispute comes down to the definition of asbestos.
Talc and asbestos are both silicate minerals, but government regulations define asbestos as a silicate that has crystalized into incredibly thin fibers, typically half-a-micron thick with a length-to-width ratio of 20:1 to 100:1. A human hair, by comparison averages 50 microns thick. Defendants accuse plaintiff experts like Gordon of using unproven techniques to detect “asbestos” particles that are actually harmless silicates.
“We believe that, in part, plaintiffs are trying to change the accepted historical definition of what a regulated asbestos fiber is,” said David J. Fisher, an asbestos defense partner with MG+M.
Defendants have had success excluding the testimony of plaintiff experts under the Daubert standard. In a September ruling in a federal talc lawsuit in Georgia, for example, the judge said Gordon used an unorthodox technique and didn’t include notes that were necessary for other experts to replicate his findings.
Other experts who were prepared to say the asbestos in talc caused cancer were also excluded, since their opinion was based on Gordon’s finding of asbestos in the product.
In that ruling, the judge also noted the pathologist’s colorful past. Gordon admitted “he engaged in `criminal activity regarding drugs and drug laundering money’” in the early 1990s - although he denied it in more recent depositions - and entered the witness protection program after cooperating with authorities, the judge wrote. Gordon, in an email response, at first said he never laundered money or admitted to it, but in a subsequent email said the judge was quoting documents “out of context” and many facts about his case had been withheld by federal prosecutors. According to this Los Angeles Times article, Gordon became enmeshed in the scheme because he was married to a goddaughter of John Gotti’s reputed successor.
The defense also can cite a favorable ruling by a New York appeals court that, in theory at least, requires plaintiff experts to provide scientific evidence showing how their clients became ill from exposure to a specific product, not just asbestos generally. Under the previous standard in NYCAL, plaintiffs only had to testify they had worked in the presence of dust that other evidence indicated might include asbestos. They didn’t have to show that the level of asbestos in the dust could cause disease.
Defense lawyers say the Juni decision tightened the rules, forcing plaintiffs to hire industrial hygenists to quantify the amount of asbestos they were exposed to from each specific product, based on how they used it. If NYCAL judges honor the decision as defense lawyers hope, that means talc plaintiffs must explain how they could inhale or otherwise be exposed to enough of the asbestos their experts say is in talc to reach levels that can cause cancer.
Numerous epidemiological studies have failed to show an increased rate of mesothelioma or other cancers among talc miners or women who said they used baby powder.
The Juni decision was based on an earlier ruling, Parker v. Mobil Oil, which said plaintiffs must prove a product is dangerous by itself, not merely because it contains an ingredient that has been found to be capable of causing disease. While plaintiff experts disagree, defense lawyers say the combination of the two rulings will make it harder for plaintiffs to prove exposure to the tiny amounts of asbestos that could possibly be in talc could be the cause of their cancer.
“Under Parker, we must show through some methodology that the product at issue can, and did, cause the disease,” Fisher said.
Even if the plaintiffs win at trial in NYCAL, they risk being overturned on appeal under the Juni standard unless they present plausible evidence that they were exposed to enough asbestos from talcum powder to cause disease. That could be devastating to the remaining inventory of talc cases, which could explain why both sides agreed to settle the Zoas case. Johnson & Johnson said it isn’t capitulating, however.
“The decision to resolve any particular case in no way changes our overall position that our talc is safe, is asbestos free and does not cause cancer,” the company said in a prepared statement. “We do not have any organized program to settle Johnson’s Baby Powder cases, nor are we planning a settlement program.”