TRENTON, N.J. (Legal Newsline) - The federal judge overseeing multidistrict litigation against Johnson & Johnson over claims talcum powder causes ovarian cancer struck some of the testimony of two plaintiff experts but will allow jurors to hear that talc contains asbestos and is linked to cancer.
The April 27 ruling by U.S. District Judge Freda Wolfson raises the stakes for J&J as it tries to squelch parallel tracks of litigation claiming its iconic Johnson’s Baby Powder can cause cancers of the ovaries and chest cavity. While J&J has won every appeal of a talc verdict against it so far, it now faces the prospect of defending itself against thousands of ovarian cancer lawsuits in which plaintiff experts can testify that its products cause the disease.
Judge Wolfson’s 141-page order found that William Longo, a key expert for many asbestos plaintiff lawyers, could testify that he found “ultra-trace” amounts of asbestos fibers in talc using one form of electron microscopy but that his methods were scientifically unsound using another method. Longo is also barred from testifying that talc users could inhale “significant” amounts of asbestos or that it can travel through the lymphatic system from the lungs to the ovaries.
The judge also prohibited Dr. Ghassan Saed, director of ovarian cancer research at Wayne State University, from testifying that talcum powder causes ovarian cancer.
The judge allowed in testimony that forms the base of what resembles an upside-down pyramid of evidence, however. By permitting Longo tell jurors he found asbestos fibers in talc, the judge is allowing other plaintiff experts to opine that the asbestos causes ovarian cancer.
“The causation experts can reasonably rely on the assumption that talc contains asbestos,” Judge Wolfson wrote.
The so-called Daubert opinion comes after hearings last summer in which experts for the plaintiffs and defense argued over their scientific techniques and conflicting statistical evidence over whether talc causes cancer. Plaintiff experts rely mostly upon cohort studies, which work backwards from the diagnosis of disease to determine whether patients used talc or not.
Defense experts say such studies are unreliable, especially when cancer patients have been exposed to widespread media reports and lawyer advertising claiming there is a talc-cancer link and are then asked whether they used the product and how much.
Judge Wolfson left the resolution of such disputes to juries. Under the Daubert doctrine, named after a landmark U.S. Supreme Court decision, judges must act as gatekeepers against junk science but they aren’t supposed to throw out expert opinions simply because they are less plausible than others. Using the same reasoning, the judge let in all of the defense experts challenged by plaintiff lawyers.
“Ultimately, the question of whose experts are correct is a question for the jury; it would be erroneous for this Court to make those factual findings on a Daubert motion,” she wrote.
Dr. Saed exposed human cells to massive amounts of talc and was to opine that he observed changes consistent with cancer growth. Defense lawyers criticized his methodology and noted he had failed to disclose to a medical journal he was working for the plaintiffs. Judge Wolfson said “careless mistakes and shoddy record keeping occurred” and limited his testimony to saying talc can cause inflammation and oxidative stress.
Defense lawyers also attacked Longo, a materials scientist who has earned millions of dollars testifying for plaintiff lawyers in a wide variety of asbestos lawsuits. Longo said he tested “historical samples” of talc from the 1960s to the early 2000s using transmission electron microscopy and polarized light microscopy methods. He found asbestos fibers in 50 of 72 containers and concluded users would have been “exposed to significant airborne levels” of asbestos and a substance he calls “asbestiform talc.”
Defense experts argued Longo uses a federal standard for identifying asbestos that is designed to count fibers sampled from the air of buildings where asbestos is already known to be present. Those standards can’t distinguish between “cleavage fragments,” or narrow mineral fibers created by milling talc, and actual asbestos, defense lawyers say. Even Longo testified that cleavage fragments could meet the regulatory definition of asbestos. But the defense didn’t identify an alternative counting rule, the judge wrote, which was “fatal to their argument.”
“It is not the court’s role to settle scientific disputes,” the judge wrote.
The judge’s ruling makes frequent reference to another high-profile MDL, Roundup litigation on the West Coast. In those cases, a federal judge also allowed expert testimony he acknowledged was “shaky,” and juries responded with large damages verdicts that defendant Bayer is appealing. Bayer is also widely reported to be in advanced discussions to settle Roundup litigation, although it is unclear how it can pay current plaintiffs who claim its active ingredient glyphosate causes non-Hodgkin’s lymphoma without being on the hook for tens of thousands of future cases of one of the most common cancers.
In a statement, J&J said it “is pleased that plaintiffs will have significant restrictions on what theories its experts can present before the jury.”
In a footnote, Judge Wolfson said she didn’t consider the latest epidemiological studies on whether talc can cause ovarian cancer but might revise her opinion later. In January, the Journal of the American Medical Association published a study involving in more than 250,000 women that found no statistically significant association between the use of talc and ovarian cancer.