United States: Unreliable Expert Opinion Does In California Talc Verdict

Last Updated: November 3 2017
Article by Steven Boranian

Most Read Contributor in United States, October 2017

We are sure you all heard about the $417 million verdict returned recently against a talcum powder manufacturer in Los Angeles, and we are equally sure you heard about the trial court's order setting the verdict aside a couple of weeks ago and entering judgment in favor of the defendants. See In re Johnson & Johnson Talcum Powder Cases, No. BC628228, 2017 WL 4780572 (Cal. Superior Ct. Oct. 20, 2017). We will repeat that result because it's really important: The trial court did not just grant a new trial. It found that there was no substantial evidence to support the verdict and entered judgment for the defendants. Not another trial; a complete win on a post-trial motion, which is relatively rare under California procedure.

It is an important order for many reasons. In today's world of mass litigation, we often see cases involving the same products and similar allegations result in verdicts that vary—and sometimes they vary substantially. In cases alleging that talc products cause ovarian cancer, the results have been striking—ranging from a defense verdict in one case to the aforementioned nine-figure wreck in another.

What gives? Well, the trial court's order vacating the verdict paints a pretty clear picture of what happened in Los Angeles: The jury, goaded by improper argument from the plaintiff's counsel, ignored its instructions and spun out of control. We will explain the court's order in some detail below, but consider these nuggets:

  • The jury assessed 97 percent responsibility and $408 million in damages against a holding company for negligent failure to warn even though the company never made or sold one of the two products at issue and had not made the other since 1967, if ever.
  • The jury awarded "compensatory" damages of $68 million against the holding company and $2 million against the product manufacturer—figures that are exactly proportional to each company's net worth. Hmm.
  • It was undisputed that no study has ever shown that talc can cause ovarian cancer, and some studies on which the plaintiff's expert relied showed a relative risk in the range of 1.3, which tends to disprove causation. Yet, the jury found the products caused the disease.
  • The plaintiff had one expert on specific causation—the plaintiff's treating physician, who conducted a hopelessly inconsistent "differential etiology" designed to reach her desired conclusion.

There is much more to the order, but suffice it to say that this trial court exercised its duty to right a wrong. The plaintiff alleged that she used one of two talcum powder products daily from about 1965 to 2016 and that she developed high grade serous ovarian cancer as a result. Id. at *1. She sued the manufacturer of the products and its holding company, which itself may have made one of the products before changes to the business in 1967 (the evidence is not definitive on this point, but you get the gist). Id. at **1, 5. According to the court, there is an ongoing debate in the scientific community as to whether talc usage can cause ovarian cancer or whether the science supports only an association, which is a profound difference. Id. To resolve this issue, the parties presented the jury with evidence focusing largely on epidemiological studies, and when all was said and done, the case went to the jury on the theory that the defendants negligently failed to warn regarding a known or knowable risk. Id.

After the jury returned its verdict, both defendants moved for judgment notwithstanding the verdict and a new trial. We're not going to cover everything, and because the middle of the order (addressing the reliability and sufficiency of the plaintiff's specific causation case) is the most important part, we will start there.

The manufacturer's motion for judgment notwithstanding the verdict. It's all about the experts, and that is where the plaintiff failed to prove her case. Her only expert on specific causation was her treating physician, who conducted a "differential etiology" analysis and opined that it was more probable than not that the products caused the plaintiff's high grade serous ovarian cancer. Id. at *3. The opinion, however, unraveled from there. We have at times criticized the "different diagnosis" or "differential etiology" as a method for determining causation. The approach was developed as a diagnostic method, not a method for attributing cause. And because it is a process of elimination, it can result in a causation opinion by default—the expert says she "ruled out" everything else, so it must have been the product.

Despite our reservations, we understand that courts have accepted causation opinions based differential diagnoses. The method, however, must be applied in a reliable way, and that is where the trial court here got it right, including by citing one of our favorite cases, Glastetter v. Novartis:

In performing a differential diagnosis, a physician begins by "ruling in" all scientifically plausible causes of the plaintiff's injury. The physician then "rules out" the least plausible causes of injury until the most likely cause remains.

In re J&J Talcum Powder, at *13 (citing Glastetter v. Novartis Pharms. Corp., 252 F.3d 986 (8th Cir. 2001) and Cooper v. Takeda Pharm. Am. Inc., 239 Cal. App. 4th 555 (2015)). The "rule in" part is the most important because unless the expert has a reasonable scientific basis for "ruling in" the potential cause, it does not matter what else is "ruled out." The potential cause is not on the differential to begin with.

The plaintiff's specific causation expert did not properly "rule in" talc products as a cause of the plaintiff's ovarian cancer. Her only basis was epidemiology and a general reference to inflammation, which the plaintiff did not have. Id. at *14. But none of the four studies on which the expert was permitted to rely showed odds ratios in excess of 2.0 that a woman using talc would develop serous ovarian cancer. (A relative risk exceeding 2.0 would indicate that a women has more than a 50 percent greater chance of developing cancer than women who did not use talc, i.e., more likely than not.) Two of the studies did not break out serous ovarian cancer, and the two that did placed the relative risk at 1.7. Id. Other studies on which the expert relied showed relative risk ratios "in the range of 1.3," which tends to disprove causation. Id. The most recent study showed a relative risk of 1.0—i.e., women like the plaintiff had no greater risk and no lower risk of developing serous ovarian cancer than women of the same age in the general population. Id.

This is a long way of saying that the expert could not cite scientific evidence that talc caused the plaintiff's disease. The plaintiff protested that epidemiology is not required to prove causation, but epidemiology is what the expert cited to "rule in" talc. As the court said, "Although Yessaian testified that epidemiology was just one of the factors she looked at, she did not mention any others." Id. The expert also did not "rule out" other causes, such as age and ovulatory cycles. But the ruling that she could not "rule in" talc is the key take away from this order, along with the trial court's very disciplined approach to the evidence and the law.

The holding company's motion for judgment notwithstanding the verdict. Although we are addressing this motion second, don't underestimate how important it was that the trial court entered judgment for the holding company. The lion's share of the verdict was attributed to the holding company—no doubt because of its predictably robust net worth. Call us jaded, but we are guessing the holding company's net worth is the only reason the plaintiff sued that company to begin with.

The order granting judgment notwithstanding the verdict is the correct result. The holding company never made or sold one of the products at issue and it may have sold the other only until 1967. There was no evidence that the company knew or should have known that talc probably would cause cancer during any time that it may have sold the product, and thus it had no duty to warn. Id. at **5-6. Remember, failure to warn is the only theory upon which this case was tried. The plaintiff tried to hold the holding company responsible for its subsidiary's products through a hodgepodge of company documents, but they did not come close to showing that the companies shared an alter ego or agency relationship. The court therefore granted JNOV for the holding company on the duty to warn, and also on punitive damages. There simply was no clear and convincing evidence that a managing agent acted with malice either. Id. at *11.

Both defendants' motion for new trial. The court also granted the defendants' motion for new trial. You might wonder why the court granted a motion for new trial when it had already granted the motions for judgment notwithstanding the verdict and entered judgment in the defendants' favor. The reason is the inevitable appeal. If the California Court of Appeal reverses the order granting JNOV for either defendant, it can still affirm the order granting a new trial and remand the parties to try the case again, rather than reinstate the original verdict.

Let's hope it does not come to that, but regardless, the court accepted many (but not all) the proffered arguments for granting a new trial. First, because the plaintiff's specific causation opinion was unreliable, the defendants' motions to exclude or strike that opinion should have been granted. Id. at *20. Second, the court should not have allowed introduction of a newspaper article on condoms, which said that concern about talc and ovarian cancer "goes back 50 years" in the medical literature and that condom manufacturers removed talc from condoms in the 1990s for that reason. It was rank hearsay, and although it came in through an expert, it should not have. Compounding the error, the plaintiff's counsel ignored the court's limiting instruction and referred to the article several times in closing. Id. at **21-22.

Third, counsel ignored another limiting instruction by arguing to the jury that the defendants "prevented regulation" and prevented the government from listing talc as a carcinogen—so-called "lobbying." The "lobbying" evidence did not go so far, hence the limiting instruction, which counsel violated. Id. at **22-23. Fourth, two jurors executed declarations stating that the jury considered taxes and attorneys' fees in reaching its verdict, which was contrary to instructions and improper. Id. at **23-24. Fifth, although the $2 million compensatory verdict against the product manufacturer was not so excessive as to require a new trial, the $68 million verdict against the holding company plainly was. Finally, because there was insufficient evidence to support punitive damages against either defendant, the punitive damages award was plainly excessive, too.

That is all you really need to know, maybe more. The trial court here gave every inference to the plaintiff, yet still found the evidence lacking, and now comes the appeal. The parties will not get a result in 2017, so we will set our gaze to 2018 and wait and see. Whatever the result, we have a feeling that this case will appear on one of our top ten lists for 2018.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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