Another Tale of the Significant Role of Science in the Expanding Frontier of Environmental Law

Earlier this month, the Honorable Judge Nelson C. Johnson, J.S.C., dismissed a pair of toxic tort cases, Carl v. Johnson & Johnson, et al., Docket No. ATL-L-6546-14, and Balderrama v. Johnson & Johnson, et al., Docket No. ATL-L-6540-14, brought by women who alleged that talc-based products manufactured by Johnson & Johnson and Imerys Talc America, Inc., caused the plaintiffs to develop ovarian cancer.  In an unpublished opinion, the trial court found that the plaintiffs’ experts did not offer sufficient scientific proof establishing a connection between ovarian cancer and the talc found in cosmetic talc powder. 

This decision followed a lengthy hearing pursuant to Kemp v. State of New Jersey, 174 N.J. 412 (2002) (“Kemp hearing”) and the trial court’s review of submissions by the experts and counsel in connection with the defendants’ motions to bar testimony and for summary judgment.   Plaintiffs’ burden at the Kemp hearing was to demonstrate that the methodologies used by their experts are consistent with valid scientific principles accepted in the scientific and medical communities.   

The test applicable in this case to evidence proffered for use in toxic tort cases was modified by the New Jersey Supreme Court in Rubanick v. Witco Chem. Corp., 125 N.J. 421, 432 (1991) in response to "new or developing theories of causation in toxic-tort litigation".  The test is less stringent than the general acceptance test and is methodology based.  Id.  Here, in following Rubanick v. Witco Chem. Corp., 125 N.J. 421, 432 (1991), the trial court found that in determining whether a scientific methodology is valid, the trial court must consider whether other scientists or medical professionals in the field use and rely on similar methodologies and information.  The evidence does not meet the test if the trial court simply thinks that the experts’ reliance on the underlying data was reasonable.

Turning to the scientific principles relevant to the case at hand, the trial court recognized the impressive qualifications of the plaintiffs’ esteemed experts and examined the validity of the experts’ reasoning and methodology, not just the opinions at length.  In doing so, the trial court found significant gaps.  The opinion that the use of talc based powder caused them to develop ovarian cancer they claimed lacked building blocks.  In short, the plaintiffs’ experts never actually explained how and why talcum powder caused the ovarian cancer.   

As one example, the trial court questioned the failure of the plaintiffs’ experts to contest or consider the biology of cancer and that talc has an anticancer property – it actually inhibits the formation of blood vessel growth.  From there, the trial court found that “talc does not cause cancer because it cannot cause cancer”.  The trial court also did not agree that the epidemiological studies relied on by the plaintiffs’ experts supported the conclusion that the use of cosmetic talc powder substantially increases the risk.  As a result, the trial court held that the methodology used for their opinions were not the type that would be regularly relied upon by other experts in the field.  

The trial court also addressed warning labels on cosmetic talc powder to disclose risks of cancer.  The trial court found that if sufficient evidence existed linking talc casually to ovarian cancer (via an adequate factual basis to support same), the FDA would have had the authority to require labeling.  However, the FDA did not find labeling necessary or appropriate to prevent a health hazard pursuant to 21 CFR 740.1.  The FDA did not consider talcum powder as a cause or threat of causing ovarian cancer and has never required a warning on cosmetic talc products.

While this, as well as other cosmetic talc powder cases are limited to their facts, the trial court’s finding here is a cautionary tale even to the most qualified experts.  The trial court took a stricter approach to the science behind the experts’ opinions to find that they were not adequately supported.  However, before we are able to truly grasp the impact of this decision, it will be necessary to see whether this holding is affirmed at the appellate level.