Alison Frankel, Reuters, Oct 23, 2017
Eva Echeverria's family, dealing with her ovarian cancer since 2007 and more recently with her death, surely felt more keenly than anyone else a ruling Friday that erases Echeverria's $417 million jury verdict against Johnson & Johnson and its consumer products subsidiary, which Echeverria blamed for causing her cancer. But the decision by Los Angeles Superior Court Judge Maren Nelson is going to affect a lot more of the nearly 5,000 women who claim they developed ovarian cancer from using powder containing talc.
The judge's most important conclusion: Echeverria did not adequately establish that talc causes ovarian cancer. Echeverria's lawyer, Mark Robinson of Robinson Calcagnie, showed jurors a sheaf of internal documents proving that Johnson & Johnson and its subsidiary have been aware for decades of questions about talc's side effects. Echeverria's treating physician, University of Southern California gynecology professor Annie Yessaian, told jurors not only that talc probably causes ovarian cancer, according to her analysis of scientific studies, but also that talc specifically caused Echeverria's disease.
Judge Nelson, however, found that at best, Echeverria proved there's "an ongoing debate in the scientific and medical community about whether talc more probably than not causes ovarian cancer and thus (gives) rise to a duty to warn." That's not enough, Judge Nelson said, to sustain the jury's imposition of liability against J&J and its subsidiary. She entered judgment for the defendants, which means that Echeverria's case is over unless she can persuade an appeals court to overturn Judge Nelson. (Even then, she will have to retry her claims because of juror shenanigans in the first trial, Judge Nelson ruled.)
The judge's skepticism about causation will reverberate across the talc litigation in California because she's overseeing all of the more than 800 suits by women who attribute their cancer to J&J powders that contained talc. Unless their lawyers can come up with better evidence than Echeverria - or unless scientific developments boost causation theories - Judge Nelson's decision is ominous for plaintiffs and a boon for J&J and its subsidiary.
J&J lawyer Bart Williams of Proskauer Rose said as much in an email statement to me. "Given the court's rulings that the evidence at trial did not establish that talc causes ovarian cancer generally, and that plaintiff's specific causation expert did not properly employ the methodology she espoused, we believe the court's ruling should have significant impact on pending California cases that rely on the very same studies," Williams said. He also pointed out that Judge Nelson is the second state court judge to cast doubt on scientific evidence that talc causes ovarian cancer. Last year, Atlantic County Superior Court Judge Nelson Johnson granted J&J summary judgment in the first two of the talc suits consolidated before him in New Jersey state court.
In a secondary holding, Judge Nelson in California also found Echeverria couldn't tag J&J with responsibility for the decisions of the subsidiary that has manufactured and distributed its talc-containing baby powder and after-shower powder since 1967. The judge said J&J had no ongoing duty to warn consumers after its newly-created consumer subsidiary took over the products decades ago. She also found Echeverria's documentary evidence did not show J&J kept responsibility for the powders.
That ruling could turn out to be important if an appeals court disagrees with Judge Nelson about causation evidence. (Echeverria's counsel, Robinson, has said he's planning an appeal.) J&J has vastly deeper pockets than the consumer subsidiary, which is worth only $2 billion. Jurors in the Eccheveria case, for instance, awarded her compensatory damages of $2 million from the subsidiary and $68 million from J&J.
Judge Nelson's decision was the second big talc win in a week for J&J, following a Missouri appellate reversal of a $72 million verdict. The Missouri court held that under the U.S. Supreme Court's 2017 decision in Bristol-Myers Squibb v. Superior Court (137 S.Ct. 1773) Missouri did not have jurisdiction to hear claims by talc plaintiff Jacqueline Fox, an Alabama resident. J&J is expected to raise similar jurisdictional arguments in other talc suits filed in Missouri by plaintiffs who live outside the state.
Like Missouri, California has been a haven for out-of-state plaintiffs with talc claims. According to J&J counsel Williams, at least 603 of the 836 talc plaintiffs who have sued the company in California state court do not live in California. J&J, in other words, can raise jurisdictional arguments to dismiss 72 percent of the California suits.
That raises the interesting question of whether the company's smartest move it to try to bounce the suits out of California. Judge Nelson, after all, is presiding over all of the cases in California - and she doesn't think there's adequate evidence to prove talc causes ovarian cancer. Might J&J's best course be to keep as many cases as it can before Judge Nelson?
Williams told me the company still intends to argue that California does not have jurisdiction over talc cases filed by non-residents. If plaintiffs' cases are dismissed for lack of jurisdiction, whether they've sued in California or Missouri, their lawyers will have to puzzle out the possibility of refiling the suits in light of state law on the statute of limitations.
Nearly 3,000 talc plaintiffs, meanwhile, aren't in state court at all. Their cases are in a federal multidistrict litigation before U.S. District Judge Freda Wolfson of Newark. One of the lead plaintiffs' lawyers in the MDL, Leigh O'Dell of Beasley Allen, said in a phone interview that Judge Nelson's view of the causation evidence won't affect the cases in federal court.
"It's not the result we had hoped for in plaintiffs' world," O'Dell said of the Echeverria decision. "The ruling is contrary to the law as we understand it in California … We think the epidemiology is not only strong but getting stronger."
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