How J&J's baby powder recall could impact lawsuits
FDA testing found asbestos in a sample lot of Johnson & Johnson's baby powder, prompting a voluntary recall of 33,000 bottles.
A recent recall of Johnson & Johnson’s baby powder could change the course of lawsuits and raise questions over the company’s liability in its products causing cancer.
New developments
Lawyers alleging that Johnson & Johnson’s baby powder caused ovarian cancer have asked a judge to allow additional discovery in light of the “highly relevant” U.S. Food and Drug Administration’s test results recently that found some bottles had asbestos in them.
The FDA, as part of its investigation of cosmetic products, found that testing of a sample lot discovered asbestos in Johnson & Johnson’s baby powder. A second sample of a different lot tested negative for asbestos. Johnson & Johnson, which has denied that its talcum powder products contain asbestos, immediately announced a voluntary recall of 33,000 bottles of its baby powder in light of the FDA’s finding.
“The source of the talc in the recalled lot is the same that Johnson & Johnson has used for all its talcum powder products since 2003,” wrote plaintiffs lawyers Leigh O’Dell and Michelle Parfitt in a letter to U.S. District Judge Freda Wolfson in New Jersey.
O’Dell, a principal at Beasley, Allen, Crow, Methvin, Portis & Miles, and Parfitt, of Ashcraft & Gerel, are co-lead plaintiffs counsel in the multidistrict litigation over Johnson & Johnson’s talcum powder products, now including more than 12,600 lawsuits in New Jersey’s federal court.
“The FDA’s findings of asbestos in Johnson’s Baby Powder support the positions taken by the plaintiffs’ committee and our experts throughout this process, and contradict the ongoing assertions of the company and its counsel,” O’Dell wrote in an email. “We view the FDA’s actions and comments to be highly relevant to the litigation and worthy of consideration by the court.”
In their letter, the plaintiff’s attorneys said they had filed a Freedom of Information Act request with the FDA to obtain documents related to the lab tests, and asked Johnson & Johnson to provide “documents, data and information regarding the same.”
They asked Wolfson, who is reviewing motions on expert evidence under the U.S. Supreme Court’s 1993 holding in Daubert v. Merrell Dow Pharmaceuticals, to allow them to supplement their briefing and provide additional evidence.
Johnson & Johnson insisted in a letter this week that the recall did not “move the needle” on the scientific evidence nor merit “reopening the Daubert hearing record or engaging in another round of briefing.”
“J&J and JJCI are investigating this matter as quickly as possible to ensure that they take the right next steps on this issue,” wrote Johnson & Johnson lawyers Susan Sharko, of Drinker Biddle & Reath, and John Beisner, a partner at Skadden, Arps, Slate, Meagher & Flom. “In particular, they are working to determine the integrity of the tested sample and the validity of the test results, including whether they were the result of cross-contamination.”
The FDA’s findings also are irrelevant to the lawsuits, they wrote.
“There is no suggestion by the FDA that the product has been contaminated for the decades at issue in this litigation,” they wrote.
In a response on Wednesday, plaintiffs’ lawyers disagreed, stating the FDA’s test “further reinforces that it is biologically plausible that the consistent association between talcum powder products and ovarian cancer in the epidemiological studies is indeed a causal association.”
In July, Wolfson heard testimony from eight of the 39 expert witnesses — 22 for the plaintiffs and 17 for Johnson & Johnson — planned for the first trials in the multidistrict litigation. So far, trials have been in state courts in California, Georgia, Missouri and New Jersey.
Johnson & Johnson, which has lost several verdicts, including one last year awarding $4.7 billion to 22 women, has criticized the state court trials for allowing “junk science” into the courtroom.
In a related matter in New Jersey, lawyers in talcum powder cases in state court argued on Thursday that a New Jersey Appellate Division should reverse a 2016 decision tossing the plaintiffs’ experts because of their “made-for-litigation” methods and tactics. In numerous other cases, Johnson & Johnson has cited that ruling, by Atlantic County Superior Court Judge Nelson Johnson, who granted summary judgment in cases planned for the first trials in New Jersey state court.
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