In re Johnson & Johnson Talcum Powder Prods. Mktg., Sales Practices & Prods. Litig.

Decision Date27 April 2020
Docket NumberMDL No. 2738,Civil Action No. 16-2738(FLW)
Citation509 F.Supp.3d 116
CourtU.S. District Court — District of New Jersey
Parties IN RE: JOHNSON & JOHNSON TALCUM POWDER PRODUCTS MARKETING, SALES PRACTICES AND PRODUCTS LITIGATION
OPINION

WOLFSON, Chief Judge:

Individual consumer-plaintiffs ("Plaintiffs") brought product-liability actions in their respective states against defendants Johnson & Johnson ("J&J"), Johnson & Johnson Consumer Inc. f/k/a Johnson & Johnson Consumer Companies, Inc., Imerys Talc America, Inc. f/k/a Luzenac America, Inc. f/k/a Ro Tinto Minerals, Inc. ("Imerys"),1 and Personal Care Products Council ("PCPC") (collectively, "Defendants"), alleging that the prolonged perineal use of talcum powder products manufactured by J&J has caused ovarian cancer. Those cases have been transferred to this Multidistrict Litigation ("MDL") by the MDL Panel for pretrial coordination purposes. Plaintiffs’ theory of liability centers on their claim that talcum powder causes ovarian cancer, in substantial part, because it contains traces of cancer-causing asbestos and other heavy metals. After years of discovery, both parties have proffered their experts on various scientific issues related to, inter alia , causation and testing of talcum powder for asbestos, and each side has moved to exclude the testimony of the other side's experts. Although each party has named numerous experts, a combined total of more than 35 experts, the Court held a Daubert hearing in which only five experts testified on behalf of Plaintiffs, and three experts testified on behalf of Defendants.2 In this Opinion, the Court determines whether these eight experts are qualified to testify in this case and whether their proffered testimony is admissible under Rule 702 of the Federal Rules of Evidence. For the reasons set forth below, Defendants’ motions are GRANTED in part and DENIED in part3 ; Plaintiffs’ motions are DENIED . Importantly, the reasoning in this Court's Opinion, applies with equal force to the remainder of the pending Daubert motions; and, in that regard, the parties are directed to confer and raise any issues with respect to specific experts, e.g. , qualifications, that are not covered by this Opinion, within 45 days of the date of the accompanying Order.4

BACKGROUND

The following factual overview is derived from Plaintiffs’ Amended Long Form Complaint. J&J manufactures certain Baby Powder and Shower to Shower products that contain talcum powder as their main ingredient. Imerys was in the business of mining and distributing talc for use in those J&J products during the relevant time period.5 PCPC is a national trade association representing the personal care and cosmetics industry for the purposes of interacting with and influencing local, state and federal government agencies on issues related to the regulation and marketing of talc based body powders, including J&J talc products.

An inorganic mineral, talc is a magnesium trisilicate that is mined from the earth. While talc powder is used for many different purposes, J&J talc products use talcum powder to absorb moisture and to dry skin when applied on the human body. According to Plaintiffs, J&J advertised and marketed their talc products as safe for use by women in the genital area in order to keep skin feeling dry and comfortable. Compl.,¶ 26. In that regard, Plaintiffs claim that J&J touted that its products are "clinically proven gentle and mild." Id. at ¶ 25.

The Complaint details various studies, conducted as early as 1971, that suggest an association between the perineal use of talc and ovarian cancer.6 See Compl., ¶¶ 28-33. In fact, according to Plaintiffs, J&J knew the danger of talc as early as the 1970s. Id. ¶ 29; see also Compl., Ex. 8. In that regard, Plaintiffs maintain that Defendants knew of the adverse risks of using talc and talc-based body powders in the perineal area and developing ovarian cancer, and had a duty to warn about the potential hazards associated with use of those products. Compl., ¶ 50. Distilling Plaintiffs’ claims to their essence, central to this case is whether the use of talcum powder increases the risk of ovarian cancer. In support of their claims, Plaintiffs, first, theorize that the presence of asbestos fibers, among other heavy metals, in talcum powder likely increases the risk of ovarian cancer. Moreover, Plaintiffs submit that the vast majority of the epidemiological7 studies prove a positive and strong correlation of talc use and ovarian cancer.

Plaintiffs seek to prove such a correlation through experts in the areas of epidemiology, biology/oxidative stress and ovarian cancer, and materials science. Drs. McTiernan, Carson, and Clarke-Pearson were proffered as experts in epidemiology. Dr. Saed was presented as an expert in oxidative stress and ovarian cancer. And, finally, Dr. Longo testified on behalf of Plaintiffs as an expert in materials science. Defendants seek to disprove such a correlation and presented Dr. Diette as an expert in epidemiology, Dr. Neel as an expert in molecular biology, and Dr. Saenz as an expert in gynecology and oncology.

DISCUSSION
I. LEGAL STANDARD

The admission of expert testimony is governed by Rule 702 of the Federal Rules of Evidence, which provides that

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. It is well-established that " Rule 702 embodies a trilogy of restrictions on expert testimony: qualification, reliability, and fit." Ruggiero v. Yamaha Motor Corp., U.S.A. , 778 F. App'x 88, 93 (3d Cir. 2019) (quoting Schneider ex rel. Estate of Schneider v. Fried , 320 F.3d 396, 404 (3d Cir. 2003) ). In Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court defined the operation and scope of Rule 702 with respect to expert testimony. The Daubert Court ruled that trial courts must perform a gatekeeping function to ensure the relevance and reliability of expert testimony.

Id. at 589–95, 113 S.Ct. 2786. In conducting this analysis, courts are to consider "all aspects of the expert's testing: the methodology, the facts underlying the expert's opinion, [and] the link between the facts and the conclusion." ZF Meritor, LLC v. Eaton Corp. , 696 F.3d 254, 291–92 (3d Cir. 2012) (alteration in original) (quoting Heller v. Shaw Indus., Inc. , 167 F.3d 146, 155 (3d Cir. 1999) ). Moreover, courts must ensure that expert testimony reflects accepted standards within the relevant scientific and business communities. See In re Johnson & Johnson Derivative Litig. , 900 F. Supp. 2d 467, 492 (D.N.J. 2012) ("[T]he Court's role under Rule 702 is to ensure that expert testimony reflects accepted standards within the relevant scientific and business communities—it is not to serve as an umpire between competing subsets of a given community.").

The first prong of admissibility considers whether an expert is qualified "to render an opinion when he or she ‘possesses specialized expertise.’ " In re Human Tissue Prods. Liability Litig. , 582 F. Supp. 2d 644, 655 (D.N.J. 2008) (quoting Pineda v. Ford Motor Corp. , 520 F.3d 237, 244 (3d Cir. 2008) ). This factor is applied liberally and "courts have been cautioned not to exclude expert testimony merely because the court feels that the expert is not the best qualified or that the expert does not possess the most appropriate specialization." Id.

The second prong of admissibility concerns the reliability of the expert's methodology. See Fed. R. Evid. 702(c). The Third Circuit has explained that " ‘an expert's testimony is admissible so long as the process or technique the expert used in formulating the opinion is reliable." Pineda , 520 F.3d at 244 (quoting In re Paoli R.R. Yard PCB Litig. , 35 F.3d 717, 742 (3d Cir. 1994) ); see also In re TMI Litig. , 193 F.3d 613, 663–64 (3d Cir. 1999), amended , 199 F.3d 158 (3d Cir. 2000). This has been interpreted to mean that an "expert's opinion must be based on the ‘methods and procedures of science’ rather than on ‘subjective belief or unsupported speculation.’ " In re Paoli , 35 F.3d at 742 (quoting Daubert , 509 U.S. at 590, 113 S.Ct. 2786 ); see also Karlo v. Pittsburgh Glass Works, LLC , 849 F.3d 61, 81 (3d Cir. 2017) (" ‘The test of admissibility is not whether a particular scientific opinion has the best foundation, or even whether the opinion is supported by the best methodology or unassailable research.’ Instead, the court looks to whether the expert's testimony is supported by ‘good grounds.’ " (citation omitted) (quoting In re TMI , 193 F.3d at 665 ). In Paoli , the Third Circuit explained that even if the judge believes that "there are better grounds for some alternative conclusion," or that there are some flaws in the scientist's methods, the expert's testimony should be admitted so long as there are "good grounds" for his or her conclusion. Id. at 744. In that connection, "an expert opinion is not inadmissible because it may contain flaws, nor is it excludable because it provides testimony regarding only one facet or aspect of an action but does not prove the whole case; such vulnerabilities affect the weight of the testimony, not its admissibility." Feit v. Great-W. Life & Annuity Ins. Co., 460 F. Supp. 2d 632, 641 (D.N.J. 2006).

In evaluating whether an expert's particular methodology is reliable, a trial court may consider any of these several factors: (1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or...

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