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Judge Denies J&J Request For Experts In Talcum Powder Cancer Litigation


talcum powder cancer

U.S. Chief District Judge Freda L. Wolfson denied Johnson & Johnson’s request for court-appointed experts in ongoing talcum powder cancer litigation on Wednesday.

Wolfson is presiding over all federal talcum powder cancer litigation. J&J had previously filed multiple motions to exclude around 35 experts from trial. The court found that the experts which both parties presented were allowed to testify at trial, subject to certain limitations. The court held that even though one side’s experts disagreed with the other side’s experts, the opinions of the experts on both sides were “sufficiently reliable to be presented to a jury, and the weight to be ascribed to the experts’ opinions are reserved for the jury to resolve,” according to Wolfson’s letter order.

Johnson & Johnson, worried that questions of general causation were too complex for the jury to understand, requested testimony from neutral court-appointed experts in epidemiology and cancer biology under Federal Rule of Evidence 706.

Wolfson cited Rackemann v LISNR, Inc. in her letter order, stating that Rule 706 appointments are an extraordinary activity, appropriate only in the rare case the traditional adversarial process “has failed to permit an informed assessment of the facts.”

“Here, I do not find that the traditional adversarial process has faltered in any way,” Wolfson wrote. “While [the] experts have diverging opinions, that, in and of itself, is not a reason to appoint a Rule 706 expert; indeed, a battle of experts is commonplace in products liability actions.”

“This case presents a classic ‘battle of the experts’ scenario, which the jury must resolve,” Wolfson wrote.

Wolfson argued that appointing the experts J&J was requesting could possibly suggest a “correct” answer to the jury regarding certain key issues which the jurors should evaluate solely by independently weighting the testimony of each party’s experts.

“Such a result would clearly be prejudicial,” Wolfson wrote.

Wolfson argued that the issues in the case are not overly complex but are rather the kind of issues that juries in similar products liability cases regularly consider.

Wolfson noted in her letter order that commentators have frequently pointed out that Rule 706 expert appointments are time-consuming and costly.

“The Court is not satisfied that the time and cost required to appoint experts is a judicious use of resources,” Wolfson wrote.

Wolfson added that appointing the experts J&J requested would “needlessly delay this matter from proceeding to trial.”


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