Across the country there have been many lawsuits filed against the makers and distributors of talc. Most of these suits have been filed against Johnson & Johnson as the maker of the baby powder used by many. In some courts, there have been very large jury verdicts for individuals who have been able to prove that the use of the baby powder caused ovarian cancer.
In this New Jersey consolidated case, two plaintiffs alleged that the talc-based product manufactured by the defendant had caused each of them to develop ovarian cancer. The issue for the court to decide here was whether the plaintiffs had shown that their experts’ theories of causation were “sufficiently reliable as being based on a sound, adequately founded scientific methodology, to wit, that they [were] based upon methods which experts in their field would reasonably rely in forming their own . . . opinions about the cause(s) of each of plaintiffs’ ovarian cancers.”
The court was ruling on the defendants’ motion to bar testimony of each of the plaintiff’s several expert witnesses. Along with the motions to bar, the defendants also filed motions for summary judgment anticipating his successful motion to bar the experts’ testimony. The motions were received by the court at a plenary hearing conducted pursuant to the standards articulated in a New Jersey case.
The court granted the motions to bar testimony and, as a consequence, granted the defendants’ summary judgment.
According to the decision and New Jersey law, “the key to reliability is the determination that the expert’s opinion is based on a sound, adequately founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field.” Rubanick v. Whitco Chemical Corp., 125 N.J. 421, 432 (1991).
The New Jersey courts recognized that there are situations in which a theory of causation that has not yet reached general acceptance in the scientific community may still be found sufficiently reliable to support submission of such a claim to a jury. The talc litigation court noted that the focus of the hearings must be on principles and methodology and not necessarily on the conclusions or opinions that such scientific methodology may generate.
“This court’s role is that of a ‘gatekeeper,’” explained the court, “who — based upon the proofs presented by the parties – must assess whether or not the hypothesis of causation advanced by plaintiffs’ experts are sufficiently reliable to be presented to a jury.”
In anticipation of the parties’ experts, the court solicited of counsel the submission of all reports, abstracts, epidemiology studies and peer-reviewed articles that were relied upon by the witnesses in formulating their opinions. The court said The Reference Manual on Scientific Evidence (3rd Edition) is indicative of what the scientific community deems to be reasonable and provides an excellent guide to trial judges in sifting through and prioritizing the information generated at a hearing which is the preferred procedural practice in any case involving an expert’s theory which has not yet achieved “general acceptance.”
The court said that in evaluating the plaintiffs’ experts’ methodologies in arriving at their conclusions and opinions, and whether the same are “reliable,” the court noted that it must consider six “building blocks” of the scientific method: (1) epidemiological studies; (2) laboratory studies on talc and cancer; (3) cancer biology and research; (4) animal studies; (5) agencies which study cancer; and (6) Bradford Hill criteria. The Bradford Hill criteria is a respected criterion that includes the strength of association, consistency of the relationship, specificity of association, temporality, biological gradient, plausibility, coherence, experiment and analogy. The Bradford Hill criteria comes from Sir Austin Bradford Hill, a respected scientist and pioneer in medical statistics who advised that scientists should be guided by various factors in determining whether an observed association between a chemical and a disease is causal.
In brief, the court “was disappointed in the scope of plaintiffs’ presentation” of its experts, describing the proceedings as “narrow and shallow,” in that much of the testimony ignored other building blocks. Applying the standard established in the Rubanick case, the court held that significant deficiencies in the plaintiffs’’ two principal experts’ methodology and analysis rendered their opinions admissible and therefore the defendants’ motion to bar testimony and for summary judgment were granted.
Carl, et al. v. Johnson & Johnson, et al., No. ATL-L-6546-14 (N.J. Sup. Ct., 2016).
Kreisman Law Offices has been handling pharmaceutical product defect cases, dietary supplement injury cases, baby powder ovarian cancer cases and product liability cases for individuals and families who have been harmed, injured or died as a result of the acts or omissions of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Westchester, Bellwood, Hillside, Berkeley, Northlake, Hodgkins, Summit, Bridgeview, Hickory Hills, Western Springs, Chicago (Hegewisch, Greek Town, Buena Park, Belmont Central, Back of the Yards, McKinley Park, Pill Hill, Sheffield South Shore, Englewood, Edgewater, Norwood Park, Chinatown, Bronzeville, Bucktown, Little Italy, West Town, Wrigleyville, Gold Coast), Cicero, Lisle, Geneva, Joliet and Lemont, Ill.
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