“Talc and Ovarian Cancer: Does Reliable Science Even Matter Anymore?” Chem.Info
“The interplay between causation in scientific research and legal causation in the courtroom has been a long-standing dichotomy that has challenged, and in some cases perplexed, some of our country’s most learned judges,” writes Goldberg Segalla partner and Toxic Tort and Environmental Practice Group Chair Joseph J. Welter. “This clash has never been more evident than in the emerging talc and ovarian cancer litigation that mushroomed this past year and resulted in two verdicts out of St. Louis, where juries awarded $72 million and $55 million.”
But New Jersey Superior Court precluded the same expert opinions and dismissed two cases in that state. In this article for Chem.Info, Joe parses out the reasons why these courts came to opposite conclusions.
“A court’s willingness or legal ability to critically scrutinize the underlying scientific basis of an expert’s opinions is at the heart of the debate,” he writes. “In many states, including New Jersey, a court serves as a ‘gatekeeper’ to ensure that any expert opinion presented to a jury for its consideration is arrived at by an accepted methodology and that the conclusions are supported by the science.”
As Joe writes, the New Jersey court, in its dismissal of the claims, noted that the plaintiffs’ experts “cherry-picked the studies upon which they chose to rely in violation of established scientific method.”
“In the St. Louis cases, the jury was charged that it should find for the plaintiff if the failure to warn of the danger ‘directly caused or directly contributed to cause’ the plaintiff’s injury,” he writes. “Under this rubric, the court permitted plaintiffs’ experts to offer opinions as to strong causal associations with no particular scrutiny of the scientific methods by which these experts reached their conclusions.”
Both the St. Louis and New Jersey cases are on appeal, so it remains to be seen how they play out. “In the meantime, other talc-product manufacturers, distributors, and retailers wait in the wings to see whether this will be the “next” emerging mass tort litigation in our country,” Joe writes.