Thursday, August 6, 2020

Plaintiffs talc experts may testify against Johnson & Johnson : New Jersey Appellate Division

Johnson & Johnson Feared Baby Powder's Possible Asbestos Link for ...

A panel of the Appellate Division of the Superior Court of New Jersey understands its law of evidence exactly as we plaintiffs' lawyers  understood Daubert v. Merrell Dow Pharmaceuticals (1991):  As a big win over the defense argument that the threshold is general acceptance of the opinion offered.  I had a hand in that as the principal author of an amicus brief.  Cited as "Brief of Bayer", we styled it the Brief of Historians and Philosophers of Science.  Our argument was simple: we deployed Thoams Kuhn's Structure of Scientific Revolutions concept of a paradigm shift.  Formulated from the experience of Copernicus overturning Ptolemy we had more contemporary experience in mind.  E.G. the miasma theory of foul odors was replaced  by Charle'sKoch's identification of the tubercle bacillus as the cause of tuberculosis.  So when Justice Harry Blackmun's opinion was issued we were vindicated: the rightist "general acceptance theory", fueled by the book Galileo's revenge, had been defeated.

But we underestimated the strength of the Reaganite cadre of Federalist Society judges who were in their youthful ascendance.  They seized on Blackmun's gatekeeper phrase.  It took years to restore order, with thousands of meritorious claims sacrificed on that altar.  The key turns out to have been 7th Circuit Judge Rchard Posner!  He said the standard is to deploy the rigor customary in the field when not in the courtroom.  That of course was the understanding in 1974 when the new federal rules of evidence was enacted.   The Frye "general acceptance" standard had been used only for devices like breathalyzers, never in civil cases until the late 1980's when Vice President Dan Quayle's Competitiveness Council embraced it.  

After several years of mechanical application of the four guidelines voiced in Daubert the Untied States Supreme Court finally faced up to the need for flexibility in the Kumho tire case.  Though Posner is not cited one can trace the road back to him in a close analysis of the opinion of Justice Stephen Breyer for the majority. - GWC

Plaintiffs talc experts may testify: New Jersey Appellate Division

by Charles Toutant //  NJ Law Journal

A New Jersey appeals court has applied the state Supreme Court’s landmark 2018 Accutane ruling on admission of scientific evidence as the basis for reinstating two suits linking Johnson & Johnson’s talc products to ovarian cancer.

The appeals court ruling said the judge below erred by throwing out expert testimony on behalf of the plaintiffs based on his own opinions of their arguments’ merits, rather than on the scientific community’s views, as the Supreme Court held in the Accutane case.

The Appellate Division reinstated suits against Johnson & johnson and co-defendant Imerys Talc America by Brandi Carl and Diana Balderrama, whose cases were dismissed after their expert reports were excluded from evidence.

The ruling allows the cases of Carl and Balderrama to proceed to trial, and it also ends a multiyear stay on about 800 other suits pending in Atlantic County by other women who claim they developed ovarian cancer from using talc products.

Richard Golomb of Golomb and Honik in Philadelphia, who represented the plaintiffs, welcomed the appeals court ruling.

“We’ve been fighting this fight for these courageous women since 2014. Obviously, this is a vindication of that fight. Earlier this year, Johnson & Johnson did the right thing and pulled its baby powder off the shelves. Now it’s time for them to take full responsibility and compensate these women,” said Golomb.

Golomb’s co-counsel, Ted Meadows of Beasley Allen Crow Methvin Portis & Miles in Montgomery, Alabama, added that the ruling was “important from the standpoint that Johnson & Johnson has used this trial judge’s opinion for the last four years for the centerpiece of their argument in courts across the country that we are using junk science.”

The decision is a defeat for Johnson & Johnson and its counsel from Faegre Drinker Biddle & Reath and Skadden, Arps, Slate, Meagher & Flom.

Johnson & Johnson, in a statement from spokeswoman Melissa Munoz, said of the ruling, “We respect the court’s decision and are fully prepared to defend the safety of our product in court. We remain confident that our talc is safe, asbestos free, and does not cause cancer.”

The motion judge, Nelson Johnson of Atlantic County Superior Court, now retired, dismissed the Carl and Balderrama cases on summary judgment in 2016 after rejecting reports by plaintiffs’ causation experts, Daniel Cramer and Graham Colditz, as flawed. The Appellate Division panel, consisting of Judges Carmen Alvarez, Karen Suter and Patrick DeAlmeida, said Johnson erroneously disqualified the experts’ reports based on “his own reading of the supporting material” and his own conclusions as to the merits of their opinions.

The panel cited the Supreme Court’s 2018 holding, that “a trial judge’s function is to act as a gatekeeper, not to substitute his or her judgment for that of the relevant scientific community,” and that a trial judge must “focus on the expert’s principles and methodology—not on the conclusions they generate.”

Johnson “relied upon his own reading of the supporting material to dismiss the opinions of plaintiffs’ principal experts as flawed. In other words, his conclusions went to the merits of their opinions and his disagreement with them, rather than their methodology and the soundness of their data,” Alvarez wrote for the court.

“We conclude, contrary to the trial judge, that the experts’ opinions were indeed based on sound methodology applied to data upon which experts in their field may reasonably rely,” Alvarez wrote.

The appeals court examined the reports of Graham, Codlitz and two other plaintiffs’ experts, John Godleski and Curtis Omiecinski, and concluded they were admissible and that suppressing their reports was an abuse of discretion.

In the Accutane case, the justices upheld the exclusion of plaintiffs’ expert testimony in a mass tort case alleging that Hoffmann-La Roche’s anti-acne drug Accutane led users to develop Crohn’s disease. The ruling adopted the standard set by the U.S. Supreme Court’s 1993 decision, Daubert v. Merrell Dow Pharmaceuticals, for the use of experts in products liability cases. Previously, New Jersey adhered to a less stringent standard, set in the 2002 interpretation of Evidence Rule 702 in Kemp ex rel. Wright v. State.

Christopher Placitella of Cohen, Placitella & Roth in Red Bank, who argued for the amicus curiae New Jersey Association for Justice, said the appeals court decision “paves the way forward for the more than 800 cases held in abeyance waiting for the outcome of this appeal while potentially affecting the rights of thousands of other similarly situated people devastated in injury and mortality.“

Susan Sharko of Faeger Drinker, representing Johnson & Johnson along with John Beisner, Jessica Miller and Geoffrey Wyatt of Skadden Arps, and Imerys Talc America’s lawyers Mark Silver of Coughlin Duffy in Morristown and Nancy Erfle of Gordon Rees Scully Mansukhani in Portland, Oregon, did not return calls.

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