Plaintiffs defeat J&J Daubert motion in NJ talc powder cases

Plaintiffs defeat J&J Daubert motion in  talc powder cases  

In a major setback for Johnson & Johnson, the first federal judge to rule on the reliability of plaintiffs’ experts testifying about whether baby powder causes ovarian cancer has admitted them in potentially more than 16,000 lawsuits.

On Monday, in a 141 page opinion   Chief Judge Freda Wolfson, D.N.J. in New Jersey, who is overseeing the talcum powder multi-district litigation against Johnson & Johnson, found that five scientific experts for the plaintiffs, two of whom have testified before Congress on talcum powder safety, could appear before juries.
At the heart of her decision is recognition of the admissibility of opinions by epidemiologists who deploy a flexible weight of the evidence approach.  The consideration of what are called the Bradford Hill factors.  Sir Austin - the UK biostatistician - with Richard Doll designed the studies that established the carcinogenicity of tobacco smoke.  His 1965 essay The Environment and Disease: Association or Causation is the now scriptural resource.
The heart of epidemiology is an integrative approach which combines clinical, pathological, and statistical evidence, an approach I explored twenty five years ago in an essay titled Against the Odds.  A key resource identified by Judge Wolfson is the Reference Guide on Epidemiological Evidence in the Federal Judicial Center's Reference Manual on Scientific Evidence.

The ruling is a big win for plaintiffs’ attorneys, who for years have faced accusations from Johnson & Johnson about allowing “junk science” into the courtroom.

“For four or five years, Johnson & Johnson has said this is ‘junk science,’ that there is no reliable science to support these theories,” said Leigh O’Dell, a principal at Beasley, Allen, Crow, Methvin, Portis & Miles, who is co-lead plaintiffs’ counsel in the MDL. Wolfson’s ruling found the plaintiffs’ experts had “used reliable methodology and their opinions are substantially supported by the science.”

“That completely obliterates that argument, and it’s very significant for the overall litigation,” O’Dell said.

Beasley Allen reports on its website about the experts now available for testimony at trial:The clinical experts initially challenged by the defense but now cleared to testify about the dangers of talcum powder use include:

• Anne McTiernan, MD, PhD – Research Professor at the University of Washington School of Public Health’s Department of Epidemiology and the University of Washington School of Medicine, and a cancer prevention researcher at the Fred Hutchinson Cancer Research Center.

• Arch “Chip” Carson, MD, PhD – Associate Professor and Program Director for the Southwest Center for Occupational and Environmental Health at the University of Texas School of Public Health in Houston.

• Daniel Clarke-Pearson, MD – Professor and recent Chairman in the Department of Obstetrics and Gynecology at the University of North Carolina-Chapel Hill, specializing in gynecologic oncology.

Judge Wolfson’s ruling allows additional testimony from the following experts:

• Ghassan Saed MD, PhD – Research Professor in the Departments of Obstetric Gynecology and Oncology at Wayne State University and the Karmanos Cancer Center in Detroit. Dr. Saed will testify about his clinical research demonstrating that talcum powder can cause inflammation and oxidative stress in cells.

• William Longo, PhD – Material scientist/electron microscopist and founder of Georgia’s Micro Analytical Laboratories, specializing in the analysis of asbestos and mineral fiber-containing materials. Dr. Longo will testify that J&J talcum powder products contain asbestos and fibrous talc, based on his analysis using transmission electron microscopy.

The case is In Re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices and Products Liability Litigation (MDL No. 2738)