Science and Law
11th May 2016

All Eyes on Talcum Powder Litigation: Genetic and Genomic Data May be Key to Future Cases

In the latest trial, victory was narrowly achieved by plaintiffs, with jurors voting 9-3 in favor of the plaintiff (the minimum required). Interestingly, according to the jury foreperson, the jury struggled to come to an agreement as to whether talc was a contributing factor in causing the plaintiff’s ovarian cancer; however, they the jury find the company guilty of negligence and failure to warn about the potential risks of genital use of talc.

All Eyes on Talcum Powder Litigation: Genetic and Genomic Data May be Key to Future Cases

Last week, another jury verdict ordered Johnson & Johnson (J&J) to pay $55 million in a suit that linked the use of talcum powder to ovarian cancer. This is the second suit of its kind for 2016, and the second loss for J&J. The combined defeat from these two suits brings the awards to a total of $127 million for J&J’s talc cases.

In the latest trial, victory was narrowly achieved by plaintiffs, with jurors voting 9-3 in favor of the plaintiff (the minimum required). Interestingly, according to the jury foreperson, the jury struggled to come to an agreement as to whether talc was a contributing factor in causing the plaintiff’s ovarian cancer; however, they the jury find the company guilty of negligence and failure to warn about the potential risks of genital use of talc.

This second verdict should be viewed as a wake-up call for the defense for a couple of reasons. First, this case was selected by the defense (as opposed to the first case which was selected by plaintiffs), and accordingly, had features that one might consider to be more favorable to the defense position. Second, there are an estimated 1,100 cases or more cases that have been filed against J&J in courts in Missouri and New Jersey, and likely more to follow. The next trial against J&J is slated for September in St. Louis.

How did this all precipitate? Various sources suggest that talc and ovarian cancer cases were largely triggered by a 2013 verdict in South Dakota. In that case, a federal court jury found J&J liable for failure to warn, but awarded zero damages to the plaintiff who alleged her ovarian cancer was caused by talcum powder use. Indeed, the jury foreperson of that trial stated that the jury panel was not convinced that talc caused the plaintiff’s ovarian cancer, but believed J&J should have labeled the product to warn consumers of the potential risks.

While the facts are undoubtedly complex and multifaceted, it does not appear that the available science is clear-cut for one side or the other, and that if anything, the science related to these cases is conflicting. Further, with the advent of genomic technologies and its increased use in toxic tort cases (see here for a previous post on this), it will be surprising if the defense does not at least consider the role genetics and other molecular science may play in the talc litigation.

Genomics May be Key

In our previous post on this topic, we discussed the notion that some of the plaintiffs in the talc litigation may harbor one or more well-described ovarian cancer susceptibility genes (in addition to the other potential factors) that have been associated with an increased risk of developing ovarian cancer. In short, it has long been known that certain diseases are known to naturally occur via mutations in some genes and that inheriting certain genetic mutations predispose an individual to an increased risk of developing a given disease (independent of any toxic exposure), such as ovarian cancer. Interestingly, a recent study reported additional ovarian cancer susceptibility gene mutations – in addition to the well-known BRCA1/2 gene mutations – that may contribute to the development of ovarian cancer.

Interestingly, it was just reported that Imerys Talc has opposed a plaintiff’s request to perform so-called “destructive testing” on tissue samples. However, the defendant did find the plaintiff’s proposal for using tissue blocks for non-destructive testing. Non-destructive testing could entail extracting a small portion of the tissue and conducting various types of genetic and genomic analyses.

Given the ongoing revolution in molecular science, it is not surprising that new science on this topic is emerging at breakneck speed. Without a concerted effort to track the science closely, important findings relevant to the defense or plaintiffs are likely to be missed.

As the third trial approaches, it remains to be seen if and how the defense adjusts their strategy, or if they will begin settling cases despite having the potential to build a more solid scientific defense using genomic data.

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