In August the first California jury to hear a talc ovarian cancer case awarded now-deceased plaintiff Eva Echeverria a staggering $417 million, $110 million more than all four of the previous Missouri verdicts combined. The jury found that Johnson and Johnson’s talc-containing products contributed to the development of Echeverria’s ovarian cancer and the company should have warned her and other consumers of its products’ risks. They backed up this conclusion with $347 million in punitive damages.
However, on Oct. 20, Los Angeles Superior Court Judge Maren E. Nelson overturned the verdict, granting Johnson and Johnson’s motion for judgment notwithstanding the verdict as well as its motion for a new trial. According to Judge Nelson the scientific evidence presented by the plaintiff’s attorneys in court was insufficient to prove talc caused Echeverria’s cancer.
This should not be seen as the end to the hundreds of California talc plaintiffs’ hopes, say product liability experts in a recent Law360 article. To begin with, the state appeals court will have to rule on Judge Nelson’s decision.
“So you get a $417M verdict and the sky is falling, but really it’s not. By the same token, you get a nice ruling like this from a trial judge, it does not mean the game is over, there’s still more chapters to be written here,” said Mark Raffman of Goodwin Procter LLP.
Talc litigation is still in its early stages and plaintiffs’ attorneys are in the process of learning what evidence will meet the requirements of the court, in the process of honing their presentation of the scientific evidence in these cases.
“We’re still pretty early in the number of cases that have gone through the system,” said Jean Eggen, distinguished emeritus professor at Widener University Delaware Law School. “Some call it the first case scenario, where you’re really hanging out there trying to get a feel of what’s sufficient evidence, of what the judges are looking for, what they consider speculative, like in this case.”
In fact, it is even possible that new epidemiologic evidence will become available. Even though there are already decades of epidemiological studies looking at the alleged link between talc and ovarian cancer, new studies are still being published.
Raffman compared the current litigation to the asbestos mesothelioma litigation, saying that even with strong epidemiologic evidence, the asbestos plaintiffs didn’t always win in the beginning.
“It took asbestos plaintiffs a long time to hit on the recipe to where they were winning more than they were losing,” he said. Now “the connection between asbestos exposure and mesothelioma is basically undisputed.”
Plaintiffs attorneys know that with thousands of plaintiffs with suits filed in multiple states as well as in federal multidistrict litigation, this is not a short-term endeavor. They are committed for the long haul.