J&J Talc Verdict Clears Firm Of Cancer Blame; Is Tide Turning In St. Louis?
This article was originally published in The Rose Sheet
Executive Summary
A new defense team for J&J got the job done March 3 in the same Missouri court where juries handed down hefty verdicts against the firm last year for failing to warn about talc’s alleged carcinogenicity. This time, the defendant appears to have been successful in punching holes in plaintiff experts’ testimony.
After suffering heavy losses in Missouri’s 22nd Judicial Circuit last year, Johnson & Johnson attorneys may be hitting their stride in defending against allegations that talc in Johnson’s Baby Powder causes ovarian cancer when used for feminine hygiene purposes.
The firm walked away from the St. Louis court March 3 with a victory following roughly seven hours of jury deliberation, according to a blog post from the Courtroom View Network, which is webcasting and recording the J&J suits “gavel-to-gavel” for subscribers.
J&J entered the three-week trial Feb. 9 with a new defense team in place, representing the third reshuffling of its table since its battles in the Lou began, according to CVN.
Proceedings got off to a rickety start, with plaintiff’s counsel Allen Smith suffering a medical episode during his opening statement that necessitated a delay to select a new jury.
Smith returned to action within the week, and sparring began between the sides’ expert witnesses as to talc’s potential carcinogenicity and the available body of scientific data on the subject.
It’s become clear that outcomes in these suits hinge on the relative strength of arguments regarding where the weight of evidence falls and what J&J’s responsibilities are in light of safety signals.
If IARC’s listings of potentially carcinogenic substances should mandate consumer warnings, shoppers should be used to seeing warnings on grocery staples including red meat and coffee, J&J attorneys suggested.
Experts for plaintiff Nora Daniels – who says long-term use of J&J powder products caused her ovarian cancer, leading to a hysterectomy and removal of her ovaries and fallopian tubes in 2013 – asserted that more than 30 epidemiological studies have tied talc exposure to increased ovarian cancer risk.
According to CVN blog contributors, J&J’s defense team was dogged in its cross-examination of plaintiff experts during the trial, pointing to updated studies that have refuted previous cancer findings and assailing the notion that talc’s listing as a possible human carcinogen by the International Agency for Research on Cancer should oblige the company to warn consumers.
If that were the case, J&J attorneys argued, red meat in grocery stores should have to carry warnings, as well as – prior to its recent delisting – coffee.
Proskauer Rose partner Bart Williams emphasized the authority of stronger, prospective studies that have dispelled concerns raised by previous research. “Each and every one of them, of the ones that look forward and follow women along, has found that there is no connection between the use of talc and ovarian cancer,” he said during closing arguments.
He also countered IARC’s much-cited listing with printouts from the National Cancer Institute and National Toxicology Program websites, which do not identify talc as potentially cancer-causing.
J&J was successful in having a pair of talc cancer suits dismissed in New Jersey court in 2016, with a judge agreeing that causation evidence, as presented by plaintiff witnesses, was not compelling enough to place before juries. (Also see "J&J Talc Suit Dismissals: Plaintiffs Lack Causation Thread For Proof Quilt" - HBW Insight, 8 Sep, 2016.)
However, the recent verdict in St. Louis marks a potential turning point in that court, where juries handed down awards topping $190m to three separate plaintiffs last year. (Also see "Cosmetic News In Brief: J&J Incurs Third Talc Trial Loss; Lauder Acquires BECCA; More" - HBW Insight, 7 Nov, 2016.)
But there are bound to be further twists and turns ahead, with thousands of similar complaints filed around the country, largely concentrated in Missouri, New Jersey and California.
CVN notes that the next St. Louis trial on J&J talc is slated to kick off in April, and the first trial in California court is scheduled for later this year.
Meanwhile, FDA is in the process of concluding its own review of the scientific literature on talc safety and will be undertaking lab research in-house to explore talc’s effects on female genital system tissues. The agency’s findings could well be cited in trials down the line. (Also see "FDA Research Seeks Better Understanding Of Talc’s Potential Cancer Link" - HBW Insight, 15 Feb, 2017.)