Consumer Protection: Forum Shopping in Talc Cases
This past August, we wrote about potential legal challenges facing manufacturers and sellers of baby powder containing talc, a mineral that some argue may be linked to ovarian cancer. Today we look at some reasons why recent talc cases have had wildly different outcomes.
Although talc litigation is relatively new, over 1,700 cases have been filed, and the litigation has already taken twists and turns. In 2013, the first talc case went to trial and a South Dakota jury found Johnson & Johnson (“J&J”) negligent in failing to warn the plaintiff of the potential link between talc and ovarian cancer but declined to award any damages. Fast forward to this year when three Missouri juries also found against J&J, but this time awarded the plaintiffs damages of approximately $197 million.
On the other hand, on September 2, 2016, a New Jersey judge granted summary judgment to J&J, dismissing two cases that contained similar allegations to the Missouri cases before trial.
Why the different results?
Location, Location, Location
The current wave of talc litigation demonstrates the significance of forum. All three of the cases that went to verdict were litigated in St. Louis. Approximately 1,200 talc cases have been brought in Missouri. There are at least three reasons why.
First, Missouri has a reputation for being a plaintiff-friendly jurisdiction. Missouri juries have frequently awarded plaintiffs multimillion-dollar verdicts in products liability cases. Second, plaintiffs’ attorneys in Missouri have undertaken an aggressive advertising program in and around St. Louis to recruit potential plaintiffs and influence potential jurors. According to J&J, 23% of national talc litigation advertising ran in the St. Louis area between March and May of this year. Third, as discussed more in the next section, Missouri has a relatively “flexible” standard for admitting expert testimony. This standard is especially important for talc litigation because the science behind the alleged dangers of talc is much less settled than for certain other products.
Letting the Experts Speak
An important reason for these different outcomes is the scope of expert testimony allowed. Neither New Jersey nor Missouri has adopted the Daubert standard governing expert testimony. Both states, however, have rules of evidence that closely track or are identical to the Federal Rules. The main difference between the rules in these two states is in how the courts apply their “gatekeeping function.” In practice, Missouri courts reportedly apply a much more “flexible” procedure in allowing experts to testify. For example, in the three Missouri talc cases, the trial courts did not have pre-trial hearings regarding the admissibility of expert testimony, nor did the judges hear the expert testimony before it was presented to the juries.
Conversely, in the New Jersey talc cases, Judge Johnson delivered a 33-page reasoned opinion stating that the court had reviewed “approximately 100 treatises relating to talc, cancer, and miscellaneous related scientific issues” before and during its hearings to determine whether the expert testimony would be allowed. Judge Johnson also highlighted specific portions of plaintiffs’ expert testimony that seemed to be internally inconsistent. For example, although plaintiffs’ experts testified that inflammation in the affected area is a hallmark of talc-caused ovarian cancer, on cross-examination those same experts admitted that no inflammation was observed in plaintiffs’ tissue samples.
Judge Johnson’s decision will immediately affect the other 200 or so talc cases that have been consolidated before him. Nationwide, however, it’s unclear how his decision will affect the course of talc litigation. Some commentators are calling talc the “new tobacco” and compare it with asbestos, DES, and other mass tort litigation. But Judge Johnson’s opinion may cause other courts to take a harder look at plaintiffs’ science and find that there simply isn’t enough proof to back up plaintiffs’ claims.
 Carl v. Johnson & Johnson, et al., No. ATL-L-6546-14 at 3 (N.J. Super. Ct. Sept. 2, 2016).