Methods two experts used to detect asbestos in talcum powder were not scientifically rigorous enough to allow those experts to testify in court, a Pennsylvania judge has ruled in a case that attorneys have said is likely the first of its kind in the Keystone State.
Philadelphia Court of Common Pleas Judge Idee Fox late last month agreed with the defendants in Brandt v. The Bon-Ton Stores that the plaintiffs’ pathology expert, Dr. Ronald Gordon, and their geology and microscopy expert, Sean Fitzgerald, used experimental, and in one case “inherently unscientific,” methods when testing for the presence of asbestos in the talcum powder at issue. Fox determined that both experts did not pass muster under the Frye test, and granted the defendants motions to preclude their testimony.
“This court finds that the methodologies employed by both Mr. Fitzgerald and Dr. Gordon are not generally accepted in the relevant scientific community,” Fox said. ”Although each employed some generally accepted methodologies, each modified, varied or deviated from those generally accepted methodologies.”
Brandt is being handled in Philadelphia’s asbestos program, and stems from claims that talcum powder plaintiff Sally Brandt used between 1954 and 1970 contained asbestos, which caused her to develop mesothelioma.
Although not as eye-catching as the verdicts against Johnson & Johnson in talc-related ovarian cancer cases, over the past few years plaintiffs with talc-related mesothelioma claims have won significant verdicts.
In 2013, a New Jersey jury awarded a $1.6 million verdict over asbestos-related talc claims. That number was shattered with the reportedly record-setting $18 million verdict a Los Angeles jury awarded in October, and, most recently, a New York jury hit defendants with a $16.5 million verdict.
Attorneys recently told The Legal there are a handful of talc-related mesothelioma cases being handled in Pennsylvania, and that the dispute over the experts’ methodologies in Brandt was the first instance that a Pennsylvania court was able to review the issue.
According to Fox, both Gordon and Fitzgerald used some generally accepted methodologies, but improperly modified those standards in a way that led to questionable results.
Fitzgerald, for example, used a “mishmash” of methodologies, but admitted that if he used talc testing methods accepted by the U.S. Food and Drug Administration he probably would not have found asbestos, Fox said. Also, when performing the research to develop his opinion on causation, Gordon used smaller than usual tissue samples, a smaller than typical control population, and extrapolated his findings, according to Fox.
The plaintiffs argued the different methodologies should still be put to the jury, but Fox disagreed.
“Although plaintiff contends this is a question of weight as to the opinions of dueling experts, this court finds it to be a question of admissibility involving scientific opinion and generally accepted methodologies,” Fox said. “Under Pennsylvania law, this court finds that Mr. Fitzgerald and Dr. Gordon employed methodologies not generally accepted in the relevant scientific community.”
Defendants in the case include Imerys Talc America, Colgate-Palmolive, and Whittaker, Clark & Daniels.
Attorney Theresa Mullaney of Kent & McBride is representing Palmolive; Rawle & Henderson attorney John C. McMeekin II is representing Imerys Talc America; Steven Bardsley of Hoagland, Longo, Moran, Dunst & Doukas is representing Whittaker, Clark & Daniels; and Patrick Wigle of Waters Kraus & Paul is representing the Brandts. Each did not return a call for comment.
Max Mitchell can be contacted at 215-557-2354 or email@example.com. Follow him on Twitter at @MMitchellTLI.