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Thursday, 26 October 2017 00:00

$474 million verdict against Johnson & Johnson has been overturned in California.

Written by Jonathan Druckman

The verdict stems from a claim by a woman who claimed she developed ovarian cancer after using the company’s baby powder that contained talc.

LA Superior Court Judge Maren Nelson’s decision will have a rippling effect on similar claims throughout the state. Judge Nelson ruled that there was “an ongoing debate in the scientific and medical community about whether talc more probably than not causes ovarian cancer and thus (gives) rise to a duty to warn.” The powder has been distributed by the company for over 50 years beginning in 1967. After a lengthy trial, and a jury verdict in favor of the Plaintiff, the judge overturned the jury verdict and entered judgment for the pharmaceutical company. The plaintiff in this case is out of luck unless she can successfully argue her case before the Court of Appeals and convince it to overturn Judge Nelson’s ruling.

Judge Nelson is tasked with overseeing more than 800 lawsuits by women who attribute their ovarian cancer to J&J talc tainted powder. The Judge’s skepticism presents a challenging task for future plaintiffs faced with coming up with better evidence to bolster their causation theories. At the same time, a judge’s role is to make rulings based on matters of law while a jury is supposed to decide matters of fact. The distinction between the role of the judge and the role of the jury seems to be getting more blurred. Judge Nelson is the second Superior Court Judge to doubt the scientific evidence supporting the connection between talc and cancer. In other states, judges have also been skeptical of the claims of cancer being caused by exposure to talc. In New Jersey, Judge Johnson granted a motion for summary judgment in the first two talc lawsuits that appeared before him.

Many people believe that these cases present problems for the judicial system as a whole when the judge acts as a fact finder. Exposure cases are difficult because of the highly detailed scientific evidence that is presented. Because there is much debate by experts in the community as to whether or not the cancer is related to the talc tainted powder, it is difficult for ordinary lay persons to understand these claims. It is also unclear whether a judge is better suited to make such determinations.

In this case, the plaintiff’s lawyer is planning an appeal against Judge Nelson’s decision regarding the causation evidence. J&J may try to keep as many cases as possible in front of Judge Nelson, due to her opinion in this case. However, should the Appellate Court reverse her decision that could mean that all of the company’s eggs are in one basket. Another issue that has been common in the talc lawsuits is the claim that certain courts lack jurisdiction. This means that the courts that are deciding the cases, should not be the courts handling the cases. For example, a Missouri verdict of $72 million was just thrown out for lack of jurisdiction because an Alabama resident brought the lawsuit in Missouri. The Missouri court ruled that despite the verdict, it did not have jurisdiction to hear claims for out-of-state plaintiffs.

Like many of the asbestos cases that have dominated the mass tort lawsuits for decades, the talc powder could be the next area of mass tort litigation.
No matter the size of your lawsuit, it is important that you pick an experienced attorney who knows the proper venue to file lawsuits in to prevent dismissals for lack of jurisdiction. Call us at Druckman & Hernandez for a free consultation. Our number is 908-353-5850.

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