NEW BRUNSWICK, N.J. (Legal Newsline) - An offshoot of Johnson & Johnson is paying nearly $6.5 billion to settle almost all lawsuits alleging its talcum powder contained asbestos and caused certain cancers - two months before the company could question the findings of highly paid experts who drove tens of thousands of lawsuits.
The $6.475 billion agreement resolves 99.75% of all claims, the company said May 1. Through the years and in many different courthouses, J&J and plaintiff lawyers battled to both massive paydays for plaintiffs and defense wins.
The litigation came down often to whether expert testimony that supported the idea talc used for Baby Powder contained asbestos was allowed to be presented. Those experts were finding decades-old products on eBay.
Plaintiff lawyers were in jeopardy of losing that testimony in the multi-district litigation containing 93% of ovarian cancer claims. The judge there had agreed to reconsider whether their methodologies met the Daubert standard for experts.
"The talc claims asserted against the company exemplify the egregious impact on U.S. businesses from meritless litigation and extreme judgments obtained by the plaintiffs' bar through forum-shopping, the distortion of scientific literature with junk science, and the unregulated and surreptitious financing of product litigation by financial institutions, including private equity and sovereign wealth funds," said Erik Haas, J&J's worldwide vice president of litigation.
The final figure represents a downgrade for plaintiffs from the $8.9 million J&J's LTL Management offered in the bankruptcy system - a move fought by plaintiff lawyers who wanted their cases in courtrooms instead.
Their mesothelioma claims, which usually lead to the biggest verdicts and settlements, are not affected by the settlement. In one instance in New York, a mesothelioma plaintiff won $325 million but saw it overturned by an appeals court who ruled her experts couldn't show she was exposed to enough fibers to cause the disease.
Previous Legal Newsline coverage showed how the mass tort was created on what some scientists called a basic misunderstanding.
Talc is often found in the same rock formations as asbestos and manufacturers like J&J had periodically been accused of selling cosmetic talc contaminated with asbestos fibers, although the manufacturers denied it.
Plaintiff experts initially downplayed the idea talc could cause cancer because defendants could cite the ubiquitous product as an alternate cause of disease. Dr. William Longo, another prominent talc expert, called the idea cosmetic talc contained asbestos “an urban legend” in 2002 testimony.
By 2019, Longo had made $30 million offering mostly pro-plaintiff testimony through the years.
Since there is no known safe level of exposure to asbestos, plaintiff experts are free to say any exposure at all can cause disease, even though numerous studies have shown people breathe in a significant amount of asbestos every day and don’t contract cancer from it.
Dozens of epidemiological studies reveal no higher risk of asbestos-related cancers among talc miners and a study of mesothelioma rates in women undermined the theory that breathing a small amount of asbestos can cause cancer.
J&J accused another expert, Dr. Jacqueline Moline, of lying on the stand and sued her in 2022. Dr. Moline was criticized by a federal judge for undermining the credibility of her conclusions by failing to acknowledge she had reason to suspect her study subjects had other sources of asbestos exposure, since all 33 were involved in asbestos litigation and some had made claims against other defendants.
In December 2023, a change to the Federal Rules of Evidence targeted unscientific theories. The amendment spells out the “preponderance of evidence” standard that many judges already followed, requiring judges to issue a finding that a proposed expert opinion more likely than not reflects scientific methods, not speculation. The amendment also strengthens the requirement that expert opinions reflect “a reliable application of the principles and methods to the facts of the case.”
On March 27, New Jersey federal judge Michael Shipp ordered a new review of the testimony of plaintiffs experts. J&J had until July 23 to make new arguments against them but settled before doing so.