TRENTON, N.J. (Legal Newsline) – Asbestos testimony previously termed “made-for-litigation” will now be allowed in New Jersey after the state’s Appellate Division ruled to let it into lawsuits against Johnson & Johnson.
The appeals court made its decision Aug. 5 in the cases of Brandi Carl and Diana Balderrama – two women who allege they developed ovarian cancer from using Johnson & Johnson’s talc-based product Baby Powder. There are thousands of similar cases nationwide, and the company has decided to stop selling it in the U.S. while maintaining it does not consist of asbestos.
The decision, if it is affirmed by the state Supreme Court (if J&J appeals) makes the prospect of going to trial even scarier for the company. There have been wins, even in New Jersey, but jurors who side with plaintiffs lawyers and their experts are often out for blood.
Today's ruling is another pro-plaintiff decision by the state's appeals courts this year. Since May:
-The Appellate Division certified a class of homeowners who allege no harm from alleged contamination except having to post a notice on their doors
-The Supreme Court told companies that made products that didn't contain asbestos that they had a duty to warn users that asbestos would be added to them by other companies; and
-The Supreme Court expanded the scope of a state law used by class action lawyers past what lower courts had determined.
In 2016, the court in Atlantic County that is hearing the state’s talc cases tossed the cases, which were the first of their kind filed in a state court in New Jersey’s home state, because the plaintiffs’ experts on causation were found to be unreliable.
“The judge relied upon his own reading of the supporting material to dismiss the opinions of plaintiffs’ principal experts as flawed,” the decision says.
“In other words, his conclusions went to the merits of their opinions and his disagreement with them, rather than their methodology and the soundness of their data. In some instances, he relied upon defendants’ expert opinions to explain his disagreement and mischaracterized it as proof of unsound methods.”
The court, instead, found the opinions of experts Daniel Cramer and Graham Colditz to be reliable.
“We are satisfied that plaintiffs’ experts adhered to methodologies generally followed by experts in the field…” it wrote.
When Cramer and Colditz are allowed to testify, good results usually follow for plaintiffs – like a $72 million verdict in Missouri. But Judge Nelson Johnson didn’t want them to influence the jury in New Jersey.
“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."
Between Johnson’s ruling and today’s, the state Supreme Court made a key ruling involving hundreds of Accutane, an acne drug, cases.
“(Johnson’s) task was to assess the soundness of the methodology of plaintiff’s experts and the soundness of the ‘underlying data and information,’” the appeals court wrote, citing Accutane.
“Instead, he chose between plaintiffs’ and defendants’ experts based on his assessment of the credibility of their opinions.”