Plaintiffs Will Select a Single Claim for the First Talcum Powder MDL Bellwether Trial in December 2024

First federal talcum powder bellwether trial is scheduled to begin as the manufacturer continues to push a controversial bankruptcy settlement proposal.

The U.S. District Judge presiding over the talcum powder MDL (multidistrict litigation) has rejected a request to present two cases during the first federal trial, indicating that plaintiffs must select a single claim next week, which will go before a jury in December 2024.

Johnson & Johnson currently faces more than 62,000 Baby Powder lawsuits and Shower-to-Shower lawsuits brought by women throughout the United States, each claiming that use of the talc-based products on their genitals caused them to develop ovarian cancer and other malignancies.

Given common questions of fact and law raised in the complaints, the federal talcum powder cancer lawsuits have been centralized in the U.S. District Court for the District of New Jersey since 2016.  While the litigation was previously assigned to U.S. District Judge Freeda Wolfson, the MDL was transferred to U.S. District Judge Matthew Shipp after her retirement a few years ago.

Although a number of state court talcum powder lawsuits have resulted in massive verdicts, no federal trials have yet been held. However, Judge Shipp intends to start the first bellwether trial in December, which will be closely watched to gauge how juries may respond to evidence and testimony that will be repeated throughout the litigation if a global settlement is not reached.

In a court order (PDF) issued on September 17, Judge Shipp rejected a request made by the Plaintiffs’ Steering Committee (PSC) to present two separate claims in the first trial, indicating that the retired U.S. District Judge previously presiding over the MDL prohibited consolidated cases from serving as bellwethers.

“With Chief Judge Wolfson’s previous findings in mind, the PSC’s contentions that consolidated cases are permitted by federal rules and present common issues of law and fact are of no moment,” Judge Shipp wrote. “Moreover, the Court can find no independent basis to disregard Chief Judge Wolfson’s previous findings and break with her decision to not allow consolidated cases to serve as bellwethers in this matter.”

Therefore, Judge Shipp gave the PSC until September 24 to propose a single claim for the December bellwether trial date.

Talcum Powder Lawsuit Settlement Offer

The bellwether trial plans are moving forward even as the parties continue to debate a proposed $8 billion talcum powder cancer lawsuit settlement agreement, which seeks to resolve the litigation through a third bankruptcy filing by Johnson & Johnson and its LTL Management subsidiary, which was created for the sole purpose of being assigned all talcum powder liability and then declaring bankruptcy.

The tactic, often referred to as the “Texas Two-Step”, has been attempted twice previously by the manufacturer, to force both current and future claimants to resolve their claims through the U.S. bankruptcy system. However, judges have rejected each of the prior attempts.

Johnson & Johnson is currently attempting to rally enough plaintiff support for the third bankruptcy filing. However, the plan still faces skepticism from many plaintiffs and their attorneys, who have said the settlement amount is too low, and the bankruptcy filing is again unnecessary, as the litigation does not put Johnson & Johnson under significant enough financial distress to justify a bankruptcy filing.

Legal wrangling over the bankruptcies have delayed the litigation for years, which has led, and continues to lead, to women dying of cancer while they await a settlement or their day in court.