Berg v. Johnson & Johnson Consumer Cos.
| Citation | 983 F.Supp.2d 1151 |
| Decision Date | 19 November 2013 |
| Docket Number | No. CIV. 09–4179–KES.,CIV. 09–4179–KES. |
| Court | United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota |
| Parties | Deane BERG, Plaintiff, v. JOHNSON & JOHNSON CONSUMER COMPANIES, INC., Defendant. |
OPINION TEXT STARTS HERE
David Neil McCarty, David Neil McCarty Law Firm, PLLC, Jackson, MS, Gregory Alan Eiesland, Aaron D. Eiesland, Johnson, Eiesland Law Offices, PC, Rapid City, SD, Patrick C. Malouf, Timothy W. Porter, Porter & Malouf, P.A., R. Allen Smith, Jr., The Smith Law Firm, PLLC, Ridgeland, MS, for Plaintiff.
Gene M. Williams, Kathleen Anne Frazier, Manuel Lopez, Scott James, Shook, Hardy & Bacon, LLP, Houston, TX, J. Crisman Palmer, Gunderson, Palmer, Goodsell & Nelson, LLP, Rapid City, SD, Mark C. Hegarty, Shook, Hardy & Bacon, LLP, Kansas City, MO, for Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW
Plaintiff, Deane Berg, brought suit against defendants, Johnson & Johnson, Johnson & Johnson Consumer Companies, Inc., and others, alleging claims for strict products liability, negligent products liability, breach of warranties, civil conspiracy, and acting in concert. After the court entered various orders following motions by defendants, the claims that remained for trial were Berg's claims for strict products liability, negligent products liability, breach of warranties, and civil conspiracy against defendants Johnson & Johnson and J & J Consumer Companies.
A jury trial commenced on Berg's remaining claims on September 24, 2013. At the conclusion of Berg's case-in-chief, defendants moved for judgment as a matter of law on all claims. The court entered judgment in favor of Johnson & Johnson with respect to all claims against it as well as in favor of J & J Consumer Companies with respect to Berg's claims for civil conspiracy and breach of warranties. The court reserved ruling on J & J Consumer Companies' motion regarding Berg's strict products liability and negligent products liability claims. J & J Consumer Companies renewed its motion at the conclusion of the evidence, and the court again reserved ruling. The jury returned a verdict in favor of J & J Consumer Companies on Berg's strict products liability claim, returned a verdict in favor of Berg on her negligent products liability claim, and awarded no damages. The court now takes up J & J Consumer Companies' motion for judgment as a matter of law on Berg's claim for negligent products liability.1 Berg resists the motion. For the following reasons, the motion is denied.
The pertinent facts to this order, viewed in the light most favorable to Berg, the nonmoving party, are as follows:
Berg used J & J Consumer Companies' products—Johnson's Baby Powder and Shower to Shower—on a daily basis in her perineum area to relieve chafing and for feminine hygiene purposes from 1975 until 2007. Some time in late 2006, Berg began feeling fatigued and bloated and noticed some spotting between her periods. She underwent a pelvic exam in early December 2006, which revealed blood clotting in her ovaries. Her ovaries were removed before Christmas of that year. On December 26, 2006, Berg was diagnosed with ovarian cancer.
Talc is one of the main ingredients in Johnson's Baby Powder and Shower to Shower. Berg alleges the talc found in defendant's products caused her ovarian cancer and claims J & J Consumer Companies should have included a warning on its products. Berg would not have used defendant's products in the manner in which she did if the products had included a warning. J & J Consumer Companies stipulated that placement of a warning on its products is physically feasible, but it argued that no warning is necessary because talc does not cause ovarian cancer, either generally or specifically in Berg's case.
Studies have articulated an association between perineal talc use and ovarian cancer dating back to 1971. Over twenty studies have shown a positive association between talc and ovarian cancer. J & J Consumer Companies admitted that it was aware of all literature regarding talc use and cancer at all times.
Dr. Daniel Cramer, an epidemiologist and one of Berg's expert witnesses, performed a meta-analysis using data from several studies and testified that women have between a 20 to 40 percent increased risk (1.3 odds ratio) of developing ovarian cancer with perineal talc use. He examined the Bradford Hill criteria and concluded talc use in the perineal area causes ovarian cancer. Dr. Cramer also testified that Berg's specific odds ratio, which he calculated after taking into consideration the duration and quantity of her usage, menopausal status, heritage, genetics, type of cancer, and family history, was around 3.5 (a 250 percent increased risk). Dr. Cramer believed Berg's perineal talc use more likely than not caused her ovarian cancer.
Berg's second expert, Dr. John Godleski, was a pathologist. Dr. Godleski examined tissue from Berg's ovaries, fallopian tubes, and lymph nodes. He found nineteen talc particles in tissue samples from her left ovary, fallopian tube, and lymph nodes. He testified that the talc particles did not naturally occur in the human body and should not have been in Berg's tissue. Lastly, Dr. Godleski testified that he believed the presence of talc particles in Berg's tissue is evidence of a causal link between talc and Berg's ovarian cancer.
Berg's third expert, Dr. Gary Rosenthal, was a toxicologist who provided testimony regarding biological plausibility, i.e., whether it is biologically plausible that talc causes ovarian cancer. Dr. Rosenthal testified that talc has immuno-toxic potential (which leads to inflammation) as well as immuno-suppressive capacities (a down-regulation of the normal functions of the immune system). These two characteristics may result in the development of cancerous cells. He further testified that talc can get to the ovaries by way of simple application of talcum powder to the perineum area, after which the talc migrates up the female reproductive tract. Dr. Rosenthal concluded by asserting talc is toxic and capable of causing cancer through either inflammation or immuno-suppression (or a combination of the two).
Under Federal Rule of Civil Procedure 50, a party can move for judgment as a matter of law if the party against whom relief is sought has been fully heard on that issue. Fed.R.Civ.P. 50(a)(1). “When federal jurisdiction is premised on diversity of citizenship, a federal district court applies the sufficiency standards of the state in which it sits.” In re Levaquin Prods. Liab. Litig., 700 F.3d 1161, 1165 (8th Cir.2012). Thus, South Dakota's sufficiency standards apply for purposes of J & J Consumer Companies' motion. Under South Dakota law,
the trial court must determine whether there is any substantial evidence to sustain the action. The evidence must be accepted which is most favorable to the nonmoving party and the trial court must indulge all legitimate inferences therefrom in [her] favor. If sufficient evidence exists so that reasonable minds could differ, [judgment as a matter of law] is not appropriate.
Roth v. Farner–Bocken Co., 667 N.W.2d 651, 658–59 (S.D.2003); see alsoSDCL 15–6–50(a).
In its motion for judgment as a matter of law, J & J Consumer Companies makes five arguments: (1) Berg's claim is barred by the applicable statute of limitations; (2) Berg failed to produce legally sufficient evidence to support a finding of recognized danger; (3) Berg did not offer required expert testimony on the applicable standard of care or breach of that standard; (4) Berg failed to produce legally sufficient evidence to support a finding that J & J Consumer Companies' conduct was a legal cause of her injuries; and (5) Berg failed to produce legally sufficient evidence as to when any duty to warn arose.
The applicable statute of limitations under South Dakota law for Berg's negligent products liability claim is found in SDCL 15–2–12.2, which provides as follows:
An action against a manufacturer ... of a product, regardless of the substantive legal theory upon which the action is brought, for or on account of personal injury ... caused by or resulting from the manufacture, construction, design, formula, installation, inspection, preparation, assembly, testing, packaging, labeling, or sale of any product or failure to warn or protect against a danger or hazard in the use, misuse, or unintended use of any product, or the failure to provide proper instructions for the use of any product may be commenced only within three years of the date when the personal injury ... occurred, became known or should have become known to the injured party.
The issue then is on what date did Berg's injuries become known or should have become known to her. “Statute of limitations questions are generally for a jury to decide.” Robinson v. Ewalt, 808 N.W.2d 123, 126 (S.D.2012). This is because “the point at which a period of limitations begins to run must be decided from the facts of each case.” Strassburg v. Citizens State Bank, 581 N.W.2d 510, 513 (S.D.1998).
Here, the parties dispute the date on which Berg knew or should have known of her injuries. Berg claims she did not know of her injuries until December 26, 2006, the date she was diagnosed with cancer. J & J Consumer Companies contends Berg knew or should have known of her injuries before December 26, 2006, because Berg previously noticed some spotting between her periods and felt fatigued and bloated; Berg underwent a pelvic exam in early December 2006 and learned that there was blood clotting in her ovaries; and Berg had her ovaries removed before Christmas. Because reasonable minds could differ as to the exact date on which Berg knew or should have known of her injuries, the court finds judgment as a matter of law is inappropriate, and such a question was properly submitted to the jury.2
Berg must establish that J...
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