In contrast to several courts in which juries have returned substantial awards in favor of plaintiffs making similar claims, a New Jersey state court dismissed two suits alleging talcum powder causes ovarian cancer after it found flaws in the ethodology employed by Plaintiffs’ causation experts. See Carl v. Johnson & Johnson, ATL-L-6546-14 (N.J. Super. Ct. Sept. 2, 2016). The Court barred the Plaintiffs’ general and specific causation experts, leaving them unable to maintain their claims.
Plaintiffs alleged their use of Defendants’ talcum powder caused their ovarian cancer. To support their claims, they offered five experts to opine on talc’s ability to cause ovarian cancer, and the powder’s connection to their specific cases. The Court held a seven-day evidentiary hearing on Defendants’ motions to bar Plaintiffs’ expert testimony.
New Jersey courts have not adopted the federal Daubert approach to admissibility of expert opinions, and rely instead on the Frye general-acceptance test. However, courts there have implemented a modified Frye approach for toxic tort cases, under which new or developing theories of causation may be the basis of expert testimony if the expert employed reliable methods to formulate her opinion.
The Court focused on two of Plaintiff’s five experts: Dr. Graham A. Colditz and Daniel W. Cramer. In evaluating those experts’ methodology, the Court noted several weaknesses. First, the Court was “disappointed” that Plaintiffs’ experts were dismissive of anything but small retrospective epidemiological studies and all but ignored three large cohort studies that undermined their positions. Retrospective studies, the Court noted, can be susceptible to “information bias” because researchers rely on information from the past to evaluate a temporal connection between exposure and disease; cohort studies, in contrast, looked at a population of exposed and unexposed people and gathered data on disease in the entire cohort.
The Court was also troubled by the failure of Plaintiffs’ experts to explain the biological mechanism by which exposure to talc could cause ovarian cancer generally or in these Plaintiffs specifically. Plaintiffs’ experts blamed the “inflammation” talc allegedly causes in ovarian tissue, but could not cite any study identifying talc’s inflammatory properties, nor was any inflammation observed in Plaintiffs’ tissues.
The Court criticized the experts’ attempts to use epidemiology to prove specific causation, too. Such a use, the Court wrote, “is beyond the limits of epidemiology.” The Court found the experts also paid short shrift to the significant risk factors each Plaintiff had for ovarian cancer.
The Court found that neither Dr. Colditz nor Dr. Cramer employed “reliable” scientific methodologies. With this causation testimony barred, the Court dismissed Plaintiffs’ claims with prejudice.