Daubert Hearing Underway is Crucial to Johnson & Johnson Asbestos Talc Lawsuits
July 24, 2019
: Johnson & Johnson is hoping to snuff out over 20 plaintiffs’ expert witnesses from the multi-district litigation in a Daubert Hearing that began this week. The plaintiff cases are built on expert testimonies who say that asbestos
fibers have been found in samples of talcum powder provided by plaintiff lawyers purchased on eBay and other places.
Judge Wolfson will hear from eight witnesses, five from the plaintiffs and three from J&J. Plaintiffs’ expert witnesses include biologists, physicians and epidemiologists who have concluded there is scientific evidence that talc use can cause ovarian cancer. Wolfson will also review the studies and other evidence the legal teams are submitting before deciding what the jury hears.
Plaintiffs' Expert Witnesses
For instance, J&J argued in the Donna Olson
asbestos case that microscopist Dr. William Longo, plaintiff's expert, lied in his testimony about where he obtained some of the talc – namely relatives of a plaintiff’s lawyer. (A New York jury awarded Olson $25 million.) Longo admitted that he has made more than $30 million through the years by offering mostly pro-plaintiff testimony. (Few experts who are not on the payroll of plaintiff lawyers agree with the scientific theories jurors seem inclined to treat as fact, reported the Northern California Record
In the Ricardo and Pilar Rimondi trial (March 2019), plaintiff’s expert witnesses failed to convince a jury that asbestos was found in J&J talc. Along with Dr. Longo, experts providing testimony included:
- Dr. Alice Blount (mineralogist) regarding their testing of Johnson’s Baby Powder and their results showing asbestos contamination.
- Dr. Steven Compton (microscopist) regarding his testing of talc ore from Italy and Vermont which he maintained were contaminated with asbestos.
Longo, Blount and Compton also discussed various testing methodology and the appropriate ways to test talc for contamination and criticized J&J’s testing protocols as insufficient to detect asbestos contamination of talc.
- Dr. David Rosner, an “asbestos historian,” about knowledge of potential contamination of talc with asbestos was available in the early to mid-1900s, and contamination of cosmetic talcum powder products had been demonstrated by at least the 1960s.
- Dr. Jacqueline Moline (occupational medicine causation expert) regarding Mr. Rimondi’s use of Johnson’s Baby Powder over the course of several decades was a substantial contributing cause of his development of mesothelioma.
J&J Expert Witnesses
- Dr. Suresh Moolgavkar and Dr. Suresh Moolgavkar (epidemiologists) noted studies of miners and millers of cosmetic talc (occupational cohort studies) worldwide and concluded that there were no any epidemiological studies showing an increased risk of developing mesothelioma from exposure to cosmetic talc.
The Daubert Standard
The Daubert Standard, which is used in all federal courts and many states, requires judges to consider the soundness of the scientific methods experts employ, as well as whether the expert is qualified and the evidence is relevant. Judges are expected to exclude experts unless their methods can be replicated and have been subjected to outside scrutiny such as being published in peer-reviewed journals.
The U.S. Supreme Court’s Daubert Doctrine aims to ensure that expert witness testimonies are based on sound science, according to CNBC
(July 22). Because all the complaints are similar, the pretrial proceedings for roughly 11,000 cases filed in federal court have been consolidated under one judge, U.S. District Judge Freda Wolfson at the U.S. court in Trenton, New Jersey.
Although Daubert can be a powerful tool for eliminating misleading testimony from the courtroom, “It doesn’t solve the underlying problem of having non-scientists decide scientific questions… You just have to take into account what is available, according to Professor Edward Cheng, a mathematician at Vanderbilt Law School who studies how courts handle scientific questions and wrote “Modern Scientific Evidence: The Law and Science of Expert Testimony, 2018-2019”.
“This is a critical phase in a longer process,” Michelle Parfitt, co-lead for the plaintiffs’ steering committee told CNBC.com
. “Once the judge finds the experts are qualified, we can move on to issue the opinion or order.”
The Daubert process may take some time: one witness will testify per day, which will conclude at the end of July. If Wolfson allows the cases to proceed, the start date of any trials against J&J will largely be determined by the outcome of the hearing. Wolfson’s decision on evidence and witnesses can also be appealed, which could further delay any trials.