Posted by : Irvin Jackson
Plaintiffs say Johnson & Johnson wants to relitigate Daubert challenges that were decided by the Court two years ago, in yet another attempt to prevent individuals dying of cancer from receiving compensation.
Following two failed bankruptcy attempts and a nearly two-year stay on all progress in thousands of talcum powder lawsuits being pursued by women diagnosed with ovarian cancer, plaintiff’s lawyers are urging the U.S. District Judge recently appointed to preside over the litigation to reject yet another delay tactic by Johnson & Johnson, which seeks to reargue expert witness challenges that were already decided by the previous judge assigned to the cases.
Johnson & Johnson faces more than 60,000 Baby powder lawsuits and Shower-to-Shower lawsuits filed throughout the federal court system, each involving similar allegations that asbestos particles in the talc-based products caused users to develop ovarian cancer, mesothelioma, and other injuries.
Following massive jury awards returned in cases that went to trial several years ago, the manufacturer decided to initiate a controversial talcum powder bankruptcy scheme in 2021, as part of an attempt to force any settlement for the cases through the U.S. bankruptcy system.
Until this month, plaintiffs have been barred from filing new talcum powder claims under a bankruptcy stay, and additional bellwether trials expected to begin nearly two years ago have been on hold while challenges were filed to the bankruptcy.
Although Johnson & Johnson has billions of assets on hand, the company attempted a maneuver known as the “Texas Two Step” in 2021, by transferring all liability it faced in the litigation to a new subsidiary, LTL Management, LLC, which then immediately filed for bankruptcy protection. Following several years of challenges to the filing, the Third Circuit Court of Appeals ultimately rejected that initial bankruptcy filing in March 2023, finding that LTL Management faced no real financial distress.
Just as the litigation was set to get underway once again earlier this year, Johnson & Johnson immediately initiated a second bankruptcy filing, as part of a proposed $8.9 billion talcum powder settlement fund that it hoped to use to force all current and future plaintiffs to resolve their claims through the U.S. bankruptcy system. However, plaintiffs objected to the move, claiming it would force individuals diagnosed with cancer to accept minimal offers for their claims and prevent all future individuals injured by talcum powder from pursuing a lawsuit through the civil court system.
Last month, U.S. Bankruptcy Judge Michael B. Kaplan rejected the second talcum powder bankruptcy, after determining that it was filed in bad faith and that LTL Management still did not face financial distress requiring bankruptcy protections. Therefore, active litigation is set to get underway again in a federal talcum powder MDL, which was initially established in 2016.
The litigation was initially assigned to U.S. District Judge Freda Wolfson, who announced her retirement earlier this year. Therefore, Judge Michael Shipp was appointed to preside over further management of the talcum powder lawsuits.
Talcum Powder Injury Lawyers Push Back Against Further Delays
In recent court filings, plaintiffs’ attorneys have noted that many individuals who have filed talcum powder lawsuits face life-threatening cancer diagnoses, and some have died while waiting for their day in court due to Johnson & Johnson’s rejected delaying tactics.
They are now trying to prevent further delays by pushing back against what they say are plans for Johnson & Johnson to again challenge expert witness testimony, despite Judge Wolfson previously ruling on those challenges years ago. Their objections to Johnson & Johnson’s plans to reargue Daubert motions were outlined in a letter (PDF) to the court issued on August 23.
“After delaying this MDL litigation for nearly two years via multiple failed bankruptcy efforts, Defendants seek to further delay bellwether trials by redoing that which has already been done in this case,” talcum powder injury lawyers wrote. “Although it is acceptable for the court to at least a limited review of the expert’s conclusions ’in order to determine whether they could reliably flow from the facts known to the expert and the methodology used,’ neither the passage of time nor the publication of new literature undermines the sound methodologies employed or conclusions reached by Plaintiffs’ experts.”
Plaintiffs filed a proposed scheduling order along with the letter, which details how they will respond to requests to produce records for discovery over the next several months if the Court refuses Johnson & Johnson’s request to reargue expert witness challenges.
Plaintiffs Push For No Further Delays in Talcum Powder Lawsuits
Prior to the initial talcum powder lawsuit bankruptcy stay, the parties were planning for a series of early bellwether trials to be held, to help gauge how juries are likely to respond to certain evidence and testimony that is likely to be repeated throughout the litigation. To make up for lost time, plaintiffs are now pushing the court to quickly resume trial prep.
In August, plaintiffs sent another letter to Judge Shipp, calling for the Court to begin moving the cases toward trial expeditiously. In response, Judge Shipp issued a docket order scheduling a status conference for September 6.
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