ATLANTA (Legal Newsline) – The medical reports blaming Johnson & Johnson’s talcum powder products for the ovarian cancer of four women weren’t specific enough to sustain their lawsuits, a Georgia court has ruled.
The Court of Appeals on Oct. 28 threw out the cases of four plaintiffs because their medical expert reports didn’t comply with the Georgia Asbestos Claims Act. Like thousands of others, the plaintiffs sought to blame Baby Powder for their cancers.
The cases often involve a so-called battle of the experts, with those on the plaintiffs’ sides finding old bottles of Baby Powder on eBay to allege they contain asbestos, with J&J’s experts arguing they are misconstruing the definition of asbestos.
In the four Georgia cases at issue in the recent decision, plaintiffs submitted medical reports from Dr. Richard Kradin. Under the ACA, his report needed to set for the medical findings necessary to establish prima facie evidence of physical impairment.
His reports said “to a reasonable degree of medical probability that (the decedent’s) cumulative exposure to (the talc product) contaminated with asbestos, was a substantial contributory factor in causing her ovarian carcinoma.”
They added “there would be no other environmental exposures that would be the sole or most likely cause of the ovarian carcinoma that caused her death.”
The appeals court found Kradin failed to opine on whether there were any other “potential causes,” as required by the ACA.
“(T)he state court found that, because there was evidence that Kradin had considered Shiver’s past medical history and negative health problems, he ‘effectively determined’ that other potential causes were not the sole or most likely cause,” Reese wrote.
“The statute is clear, however, that it is the medical expert who must certify to a reasonable degree of medical probability that other potential causes were not the sole or most likely cause of the injury at issue.
“Kradin did not certify ‘that other potential causes (such as smoking) were not the sole or most likely cause of the injury at issue[.]’ Because the plain language of the statute required this certification, the trial courts should have dismissed the complaints without prejudice.”