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Johnson & Johnson : Faces Key Test in Defense Against Talc-Safety Lawsuits

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07/21/2019 | 05:45am EDT

By Peter Loftus and Sara Randazzo

Johnson & Johnson, still facing thousands of lawsuits over the safety of its signature baby powder after losing several trials, will make a high-stakes attempt to head off future losses in a courtroom battle beginning Monday.

The company is fighting about 14,200 claims that Johnson's Baby Powder and other J&J talc products cause cancer. More than two dozen lawsuits have gone to trial in state courts, some resulting in eye-popping plaintiffs' wins. That includes a July 2018 verdict by a St. Louis jury requiring J&J to pay $4.69 billion to 22 women and their families who blamed ovarian-cancer diagnoses on baby powder.

J&J says its talc products are safe and don't cause cancer and is appealing the adverse verdicts. The company has also won several trials in state courts.

But most of the talc claims -- around 12,000 -- are pending in federal courts, and none has been scheduled for trial. A federal judge in Trenton, N.J., Freda L. Wolfson, is overseeing coordinated pretrial proceedings of the federal talc lawsuits, in what is known as multidistrict litigation.

Before allowing any of the federal lawsuits to proceed to trial, Judge Wolfson is weighing the strength of the scientific evidence behind plaintiffs' claims -- the focus of a dayslong hearing scheduled to start in Trenton on Monday.

Plaintiffs' attorneys have identified expert witnesses including biologists, physicians and epidemiologists who have concluded there is scientific evidence that talc use can cause ovarian cancer.

Many of the women who sued J&J used talc powder for feminine hygiene, and the lawsuits allege that talc particles can migrate to the fallopian tubes and ovaries, and trigger an inflammatory process leading to cancer.

In May, J&J filed court motions asking Judge Wolfson to exclude from any future federal trials the opinions of 22 expert witnesses retained by plaintiffs, arguing that "they misapply scientific principles" and "engage in unsupported leaps of logic." Lawyers for J&J wrote: "In a nutshell, this is science for the courtroom, not science for the laboratory."

John H. Beisner, an attorney for J&J with Skadden, Arps, Slate, Meagher & Flom LLP, said in an interview that if Judge Wolfson finds there isn't enough evidence of causation to present to juries, "there's nowhere for these cases to go," which could result in their dismissal, wiping out the majority of talc lawsuits against J&J.

Plaintiffs' lawyers have asked the judge to deny J&J's request, arguing that the experts are qualified and used reliable methodologies to reach their opinions. The plaintiffs say there are about 35 peer-reviewed studies that show a link between talcum powder and ovarian cancer, most pointing to an increased risk of between 25% and 45%. The plaintiffs' lawyers also have argued that the opinions of certain of J&J's 18 expert witnesses should be excluded from trials.

"This is a really important step and an opportunity to put forward what we think is really overwhelming and reliable evidence," said Leigh O'Dell, one of the co-lead counsel for plaintiffs in the federal talc lawsuits.

At the hearing, expected to last more than a week, some of the expert witnesses for both sides will face questions from the judge and lawyers. The judge could take weeks or months to reach a decision. If she allows plaintiffs' expert testimony about causation, it could clear the way for federal trials to begin.

The proceeding, called a Daubert hearing after a 1993 U.S. Supreme Court case, is a pivotal point in litigation alleging products or drugs cause medical harm. Companies can severely curtail claims and sometimes even defeat them completely at the Daubert level.

The Daubert standard, used in all federal courts and many states, requires judges to consider the soundness of the scientific methods experts employ, as well as whether the expert is qualified and the evidence is relevant.

"The idea is that when an expert testifies in front of a jury, we know that jury is going to give that testimony a significant amount of weight, " said Adrienne Franco Busby, a partner with Faegre Baker Daniels who defends drug and medical-device makers in product-liability litigation, and isn't involved in the talc litigation. "This is a third party coming to give some specialized technical knowledge. So when they do that, it has to be legit."

State courts including those in California and Missouri have so far cleared many baby-powder experts who have testified for plaintiffs at trials. A New Jersey judge in 2016 threw out the expert evidence in talc litigation there, which plaintiffs have appealed.

The cases consolidated in the New Jersey federal court involve only those tying baby powder to ovarian cancer. Many plaintiffs' lawyers have pivoted to filing lawsuits in state court claiming use of J&J's talc powder causes a rare form of cancer linked to asbestos known as mesothelioma.

Publicity over talc safety has weighed on the company, which has responded by taking out newspaper ads and setting up a website to counter the allegations. J&J shares are down about 11% since December on concerns about the product-liability litigation, and related investigations by the Justice Department and the Securities and Exchange Commission.

J&J booked a $190 million charge in the second quarter for legal-defense costs in the talc litigation.

Write to Peter Loftus at peter.loftus@wsj.com and Sara Randazzo at sara.randazzo@wsj.com

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