This month’s precedential ruling by the New Jersey Supreme Court on scientific evidence supports a key 2016 decision in a pair of closely watched talcum powder cases, according to a letter brief filed this month by Johnson & Johnson.
In an Aug. 9 letter before the New Jersey Appellate Division, Johnson & Johnson and talc supplier Imerys Talc America Inc. said the high court’s Aug. 1 decision in In re Accutane, which applied a more rigorous analysis for scientific methods and testimony in New Jersey courtrooms, justified upholding Atlantic County Superior Court Judge Nelson Johnson’s ruling in the talcum powder cases. That ruling, which Johnson & Johnson has cited in other cases, including those outside of New Jersey, struck two plaintiff’s attorneys because of their “made-for-litigation” methods and tactics.
In the talcum powder cases, “the principles articulated by the Supreme Court in Accutane directly reject the assertions of error plaintiffs have made on appeal,” according to Johnson & Johnson attorney Susan Sharko of Drinker Biddle & Reath in Florham Park, New Jersey, and Imerys attorney Mark Silver of Coughlin Duffy in Morristown, New Jersey. Neither responded to requests for comment.
Johnson & Johnson declined to comment. Imerys said in a statement: “We are pleased the New Jersey Supreme Court recognized the appropriateness of Judge Johnson’s analysis in scrutinizing expert testimony – a ruling in favor of scientific proof and against unreliable opinions. In light of the decision in In Re Accutane, Imerys anticipates a similar result in the talc ovarian cancer cases and ultimately a finding of no causal association between talc and ovarian cancer.”
In the appeal, plaintiffs lawyers have insisted that Johnson exceeded his role as a gatekeeper to the science allowed at trial. Plaintiffs have yet to file their responses to the Accutane decision in court but, in statements to Law.com, they said the Accutane ruling wouldn’t impact their appeal.
“Although the ruling went against the plaintiffs in Accutane, the analysis and holding is actually helpful to the plaintiffs in talc,” Richard Golomb of Golomb Honik wrote in an email. Golomb is the Philadelphia lawyer who represents the talc plaintiffs on appeal.
“Specifically, the plaintiffs in the talc ovarian cancer cases have favorable epidemiology that includes more than two dozen studies dating back to 1982 that shows a clear and statistically significant association between perinatal use of talc and ovarian cancer,” he wrote. “Additionally, in the end, both plaintiffs’ and defense experts used the same methodology in analyzing general causation—more than enough to get over the trial court’s gatekeeper function.”
Science has been a key debate in the talcum powder cases, in which thousands of women allege Johnson & Johnson’s baby powder caused their ovarian cancer. Johnson & Johnson has criticized what it calls “junk science” allowed at trial, particularly in Missouri, where verdicts have ranged from $55 million to, most recently, $4.7 billion last month.
The New Jersey talc cases involve claims by plaintiffs Diana Balderrama and Brandi Carl. Johnson had granted a defense motion to exclude the testimony of Graham Colditz and Daniel Cramer, both plaintiffs’ experts. “Though both plaintiffs’ experts are eminently qualified, their areas of scientific inquiry, reasoning, and methodology are slanted away from objective science and towards advocacy,” he wrote. He then dismissed the cases on summary judgment.
Balderrama and Carl argued on appeal that Johnson had exceeded his role as gatekeeper and, by drawing his own conclusions about the testimonies of the experts, assumed a fact-finding role more appropriate for a jury.
In this month’s Accutane decision, the New Jersey Supreme Court found that Johnson, who also was the judge in the Accutane cases, had properly rejected the testimony of two plaintiffs’ experts. Many business groups had intervened in the case, pushing for New Jersey to shift its standard on expert evidence to the more rigorous and widely used Daubert standard. New Jersey previously had followed a more relaxed standard.
The decision reversed an appeals court decision that had reinstated more than 2,100 cases alleging Accutane caused Crohn’s disease.
The high court’s Accutane decision supports Johnson’s finding in the talc cases, Johnson & Johnson wrote in its letter brief.
“Although novel conclusions can be reached under accepted methods, the Supreme Court cautioned that it is not a trial court’s place to blindly ‘bless new “inspired” science theory,’” the letter said. Johnson ruled “in terms identical in substance to the language from Accutane.”
The letter also said Accutane refuted talc plaintiffs’ claims on appeal that Johnson had exceeded his role as gatekeeper. “Notably, the Accutane court also expressly included within the scope of a valid gatekeeping process the very methods used by [Johnson] in this case,” the letter says.
But Ted Meadows of Beasley Allen Crow Methvin Portis & Miles in Montgomery, Alabama, another lawyer representing the plaintiffs in the talc cases, said the experts in his cases presented both human and animal studies. And, unlike in Accutane, the experts included “peer reviewed human ovarian cellular studies that concluded talc can cause ovarian cancer.”
“The reasons cited by the court in ruling against Accutane plaintiffs are the very reasons why experts for talc plaintiffs are qualified to testify at trial,” he wrote in an email.