Litigation Update: Refiled Daubert Challenges Ordered in Talc MDL

by | Apr 16, 2024

On March 27, 2024, the judge overseeing the over 53,000-case talc MDL, U.S. District Judge Michael Shipp, determined that December 1, 2023 changes to Federal Rule of Evidence and the development of new science require a new evaluation of the relevant expert evidence governing the case. Judge Shipp assumed responsibility for the MDL in 2023 upon the retirement of U.S. District Judge Freda Wolfson, who in 2020, allowed five of the plaintiffs’ general causation experts to testify in a number of future bellwether cases against Johnson & Johnson, determining that their proposed testimony was sufficiently reliable under federal law standards:

“Where, as here, the causation experts’ opinions are based on facts, a reasonable investigation (including documented findings), and traditional technical/mechanical expertise, and the experts provide a reasonable link between the information and procedures they use and the conclusions reached, the Daubert requirements are met,”

In a 4/27/2020 proceeding held to hear defendant Johnson & Johnson’s motion to exclude plaintiffs’ experts, Judge Wolfson ruled that the majority of the experts met the scientific criteria established in the 1993 U.S. Supreme Court decision, Daubert v. Merrell Dow Pharmaceuticals.  The testimony of plaintiffs’ experts sought to establish that talc, and specifically asbestos particles in the talc products manufactured by J&J, were responsible for an increased risk of ovarian cancer in women who used them. In his opinion, Judge Shipp wrote:

“Upon review of the parties’ contentions, the court is persuaded that the recent changes to Federal Rule of Evidence 702, the emergence of new relevant science, and the language of Chief Judge Wolfson’s previous Daubert opinion make a full refiling of Daubert motions appropriate.”

In response to Judge Shipp’s order, counsel for J&J stated:

“We are very pleased that the court recognizes the need to reexamine these critical issues. The passage of time has only solidified the decades of medicine and science that support Johnson & Johnson’s position in these cases. It is also critical to shine a light on some of the made-for-court junk science that the company has unfortunately uncovered in recent trials. We look forward to this opportunity to examine this crucial evidence.”

For their part, plaintiffs’ counsel maintains that “the science supporting the dangers of asbestos-laden Johnson’s baby powder is stronger than ever. The truth of J&J’s deceptive conduct to hide the presence of carcinogens in talcum powder and mislead the medical and scientific communities has only become clearer over time.” They also pointed to the delays caused by J&J’s multiple bankruptcy attempts that they argue will be exacerbated by rehearing the causation issues already ruled on by Judge Wolfson.

New Daubert motions must be filed by July 23 with opposition briefs to be filed by August 22.

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