Johnson & Johnson was hit with a court decision last week that could negatively affect its defence of lawsuits from plaintiffs alleging its baby powder caused their ovarian cancer, reports Fierce Pharma.
In a legal blow for the company, a New Jersey court-appointed special master recommended that plaintiffs should be able to present testimony from expert witnesses who can speak to scientific evidence backing their claims.
The recommendation, which came from retired US District Judge Freda Wolfson, applies to roughly 67 500 lawsuits that have been consolidated in New Jersey and allows them to go forward, according to Reuters.
Wolfson, who managed the litigation in New Jersey that began in 2015, retired in 2023. Her successor, Judge Michael Shipp, sought out Wolfson’s expertise in deciding whether to allow for expert testimony. In 2020, Wolfson made a similar ruling when she sided with plaintiffs, saying that testimony from their experts would be allowed.
In her new 658-page recommendation, Wolfson wrote that epidemiological studies “demonstrate a positive, statistically significant association between genital talc powder use and ovarian cancer”, adding that the plaintiffs’ experts used “reliable methodologies” to arrive at their conclusions.
Along with her recommendation, Wolfson also determined that J&J can counter testimony with its own expert witnesses.
For more than a decade, J&J has maintained there is no conclusive evidence that its now discontinued talc products contained asbestos or caused cancer.
J&J legal chief Erik Haas said the company would appeal the decision.
“The special master rightly excluded key opinions by plaintiffs’ experts and endorsed virtually all of the opinions of defendants’ experts,” he said. “The special master also erroneously allowed certain other plaintiffs’ experts opinions to proceed based upon the same flawed reasoning employed in her 2020 decision.”
Haas added that Wolfson failed to apply federal rules of evidence, which went into effect in 2023, that give lawyers new tools to prevent juries from hearing unreliable opinions.
“We will continue to aggressively defend against these meritless cases one by one because valid science and the law are squarely on our side and will only continue to strengthen in our favour.”
J&J added that other hearings and subsequent recommendations related to specific witnesses and topics would continue over the next few months.
In a statement from the Alabama-based Beasley Allen Law Firm, attorney Andy Birchfield said J&J should “reconsider its horribly flawed strategy”.
“This is a major victory for 67 000 women poisoned by talc and harmed again by Johnson & Johnson’s pathological need to obstruct, delay and lie,” he said.
J&J, which has failed with three attempts to resolve the lawsuits through bankruptcy procedures, has won the majority of the talc cases that have been heard, including 16 of 17 decisions involving ovarian cancer, Haas said.
But the company has also sustained several costly defeats.
Last month, a Baltimore jury ordered J&J to pay $1.56bn to a Maryland mesothelioma victim in the largest award ever against the company to a single talc plaintiff.
That decision came a week after a Minnesota jury awarded $65.5m to a 37-year-old woman who claimed that using baby powder caused her to develop lung cancer, while a California jury returned a $40m verdict in a case brought by two women with ovarian cancer.
The Baltimore award topped the previous high of $966m, which was the figure arrived at by a California jury three months ago in a four-year-old case involving the late Mae Moore, who died of mesothelioma at 88 in 2021, triggering a lawsuit by her three daughters.
All of the cases are under appeal.
The company took its talc products off the market, first in North America in 2020 and then in the rest of the world, in 2023. The company now sells a cornstarch version of its baby powder.
See more from MedicalBrief archives:
Cancer victims want J&J talc bankruptcy blocked by courts
J&J agrees to pay $700m to resolve talc cases
Cancer victims sue J&J over alleged ‘fraudulent’ bankruptcies