MDL Judge Allows Refiling of Daubert Challenges in Talcum Powder Lawsuits Five Years Later

This new delay may lead to more women dying before their talcum powder lawsuits get the opportunity to go before a jury, plaintiffs’ attorneys warn.

The U.S. District Judge presiding over all federal talcum powder cancer lawsuits is allowing Johnson & Johnson to reargue challenges to the admissibility of plaintiffs’ expert witnesses testimony, which establishes that talc and asbestos particles in the products increase the risk of ovarian cancer, despite a previous ruling nearly five years ago that allowed the experts to testify.

Johnson & Johnson faces about 54,000 Baby Powder lawsuits and Shower-to-Shower lawsuits, each involving similar allegations that users were not adequately warned about the risk of developing ovarian cancer, mesothelioma and other injuries.

The litigation began in 2016, however, following massive jury awards returned in cases that went to trial several years ago, the manufacturer decided to initiate a controversial talcum powder bankruptcy scheme in 2021, as part of an attempt to force any settlement for the cases through the U.S. bankruptcy system.

Although courts eventually rejected the bankruptcy, since Johnson & Johnson faces no financial distress and has sufficient assets to cover the liability for failing to warn about the talcum powder cancer risks, the move delayed the litigation for more than two more years. However, just as the plaintiffs were pushing for the first bellwether trials to go before juries, Johnson & Johnson has further delayed the proceedings, by convincing the Court to allow a rehearing on the admissibility of expert witness testimony that was decided by the previous judge overseeing the litigation.

Given similar questions of fact and law raised in complaints filed throughout the federal court system, coordinated pretrial proceedings were established for the talcum powder litigation in 2016, centralizing the cases before U.S. District Judge Freda Wolfson in the District of New Jersey.

In July 2019, Judge Wolfson held a series of Daubert hearings, to evaluate whether the proposed expert witness testimony was sufficiently reliable under federal law standards to allow a jury to consider as evidence. After additional studies were released in early 2020 and a Baby Powder recall was announced in late 2019, due to the discovery of asbestos particles in some talcum powder bottles, Judge Wolfson ruled that plaintiffs’ expert testimony was admissible.

During the lengthy delay caused by Johnson & Johnson’s bankruptcy maneuver, where the company attempted to shift all liability it faced to a subsidiary that immediately declared bankruptcy, Judge Wolfson retired and management of the talcum powder litigation was transferred to U.S. District Judge Michael A. Shipp.

New Daubert Challenges Allowed in Talcum Powder Lawsuits

Shortly after the bankruptcy plan was rejected by the Court, Johnson & Johnson announced plans to challenge plaintiffs’ expert witness testimony again in August 2023, despite Judge Wolfson’s previous rulings.

The request was made over the protests of plaintiffs’ attorneys, who represent women facing life-threatening cancer diagnoses, and have already been waiting years to present their claim to a jury. The attorneys called on Judge Shipp to reject what they saw as delaying tactics, noting that some plaintiffs have died, and more will likely die, waiting for their day in court.

However, on March 27, Judge Shipp issued an order in the MDL docket granting the manufacturer a chance to again challenge plaintiff’s expert testimony. He indicated that there have been recent changes to federal rules of evidence, as well as emerging new science, which makes “a full refiling of Daubert motions appropriate.”

Judge Shipp indicated Daubert motions must be filed by July 23, with oppositions to those motions filed by August 22, 2024. The order did not indicate when new Daubert hearings would be held, but it makes any talcum powder trial dates in the MDL unlikely to occur until at least 2025.

The order comes as plaintiffs’ lawyers and Johnson & Johnson are preparing a group of ovarian cancer lawsuits for potential jury trials for later this year. Judge Shipp did not indicate how the Daubert hearings would affect that schedule, only saying that subsequent scheduling orders will reflect the new timeline.

While the results of these individual trials will not be directly binding on other claims, the average talcum powder lawsuit payouts awarded by juries are expected to greatly influence the potential settlement values that Johnson & Johnson could be required to pay to avoid the need for each individual case to go to trial in the coming years.