Medical industry weighs in on talc appeal

Three statewide medical associations filed an amicus brief siding with Johnson & Johnson in its appeal of a $417 million verdict over the dangers of talc.

The California Medical Association, the California Dental Association, and the California Hospital Association, which collectively comprise a majority of the state's medical industry, said they were weighing in before the 2nd District Court of Appeal rules because of repercussions the case might have on liability litigation.

The bellwether verdict is part of a torrent of talc litigation that has taken place nationwide against the pharmaceutical giant. In 2017 a Los Angeles County Superior Court jury delivered damages on behalf of a plaintiff who said she developed ovarian cancer as a result of chronic perineal talc use.

But Judge Maren E. Nelson granted defense firm Proskauer Rose LLP's motion for judgment notwithstanding the verdict and a new trial, ruling the jury made its decision based on insufficient scientific evidence. Lloyd v. Johnson & Johnson, BC628228 (L.A. Super. Ct., filed July 25, 2016).

The amicus brief, filed April 5, largely sides with Nelson's conclusion and seeks to serve as a guidance for the appellate court as it weighs the causation standard.

At trial, Dr. Annie Yessaian, the personal physician of plaintiff Eva Echeverria, testified on the issue of causation. The medical associations disputed how Yessaian could have ruled in talc after ruling out other contributing factors to Echeverria's cancer, also known as a "differential diagnosis."

Yessaian ruled out the plaintiff's genetic history, age, obesity and tobacco use.

"In other words, she was ruling in and ruling out in plaintiff's specific case what she understood to be the known causes of ovarian cancer generally. She assumed talc was a known cause of ovarian cancer," wrote Cole Pedroza LLP in its brief on behalf of the associations.

"Even though the prior testimony of one of plaintiff's experts on general causation had revealed that the epidemiological studies on talc were 'inconclusive,' Dr. Yessaian did not summarily rule out talc in the way she had summarily ruled out obesity and tobacco because the studies were 'inconclusive,'" according to the brief.

Yessaian testified it was "more probable than not" that Echeverria "would not have developed her serious epithelial ovarian cancer" had she not used the baby powder.

Curtis A. Cole, a Cole Pedroza partner who has been involved with causation issues for over 30 years, said the associations were focused on "precision to resolve scientific questions." He said the associations were not interested in speaking to issues of failure to warn or whether talc causes ovarian cancer.

The defense, represented by Proskauer Rose partner Bart H. Williams, wrote in its appeal brief that since prevailing medical knowledge did not view talc as probably causing ovarian cancer the company had no duty to warn and therefore was not liable for damages.

The plaintiff's counsel replied that an expert conducting a differential diagnosis is not required to rule out the other possible causes.

"The trial court's analysis improperly imposed 'a more rigid standard than is required to prove causation in civil cases,'" wrote Echeverria's attorney, Mark P. Robinson of Robinson Calcagnie Inc.

A date for oral arguments has not been set.