The California Court of Appeal has finally filed its opinion in the much-discussed talc ovarian cancer case, Echeverria v. Johnson & Johnson, No. B286283, 2019 WL 3001626 (Cal. Ct. App. July 9, 2019), and while it is not a complete win for the defense, it was close, and there is much to talk about.  As we reported to you in detail here, this is the case where a Los Angeles jury returned a $417 million verdict against a cosmetic talc manufacturer and its holding company, despite hearing no substantial evidence against the holding company and hopelessly unreliable expert opinions on specific causation.  The trial court entered judgment notwithstanding the verdict for both defendants on the basis that there was no substantial evidence to support the verdict and alternatively granted their motion for a new trial.  Regarding the new trial order, we wrote,

You might wonder why the court granted a motion for new trial when it had already granted the motions for judgment notwithstanding the verdict and entered judgment in the defendants’ favor.  The reason is the inevitable appeal.  If the California Court of Appeal reverses the order granting JNOV for either defendant, it can still affirm the order granting a new trial and remand the parties to try the case again, rather than reinstate the original verdict.  [¶]  Let’s hope it does not come to that . . . .

Well, it sort of came to that, but not completely.  The Court of Appeal affirmed the JNOV for the holding company, affirmed the JNOV in favor of the manufacturer on punitive damages, reversed the JNOV for the manufacturer on compensatory liability, and affirmed the order granting a new trial.

So where does that leave the parties?  If the result stands (the time for rehearing has not expired), then they go back to the trial court for a trial on the manufacturer’s compensatory liability only.  No holding company and no punitive damages.  Let’s take a closer look at how they got there.

The holding company’s motion for judgment notwithstanding the verdict.  The case against the holding company never should have gone to the jury in the first place, and the Court of Appeal had no difficulty affirming the JNOV.  There was simply no evidence, let alone substantial evidence, that the holding company breached a duty to warn—either before or after 1967, the year the plaintiff claimed the holding company last made the product.  The Court of Appeal rejected the plaintiff’s citation to T.H. v. Novartis Pharmaceuticals Corp., 4 Cal. 5th 145, 164 (2017), where the California Supreme Court held that an innovator drug manufacturer can be liable for injuries caused by a generic version of the same product, even after the innovator has stopped selling the drug.  According to the Court of Appeal, the reasoning of T.H. v. Novartis is “inextricably tied to the ‘distinctive legal framework governing labeling for brand-name and generic pharmaceuticals.’”  Echeverria, 2019 WL 3001626, at *15.  For talc, the Court of Appeal applied “the general rule that a manufacturer has no duty to warn of risks posed by another manufacturer’s product.”  Id. (citing O’Neil v. Crane Co., 53 Cal. 4th 335, 364-66 (2012)).  This is clearly the correct result, and we like any cabining of the wrongly decided T.H. v. Novartis opinion that we can get.

The manufacturer’s motion for judgment notwithstanding the verdict.  As we said in our prior post, it’s all about the experts, and that is how it played out on appeal, too.  We knew where the Court of Appeal’s opinion was going when it spent page after page setting forth the experts’ opinions and the various documents and articles upon which they relied.  Recall that the standard for granting (and affirming) a judgment notwithstanding the verdict is that, viewing the evidence in the light most favorable to the party securing the verdict, there is no substantial evidence to support the verdict.  The Court of Appeal took great pains to lay out the evidence viewed “in the light most favorable” to the plaintiff, id. at *4-*12, and we understand its obligation to do so under the standard of review.

We disagree, however, with the Court’s conclusion that substantial evidence supported the plaintiff’s verdict.  Although the Court described myriad documents purporting to discuss talc use and potential disease, it remains undisputed that “no published studies, regulatory agencies, or scientific organizations have concluded talc-based inflammation causes ovarian cancer.”  It is likewise undisputed that “there has not been direct, conclusive evidence establishing genital talc use causes ovarian cancer.”  Id. at *2, *26.  That is pretty strong stuff, and it should be dispositive in favor of the defense.

We also disagree with the Court of Appeal’s treatment of the “differential diagnosis” offered by the plaintiff’s only specific causation expert, the plaintiff’s treating physician.  Id. at *20-*25.  The trial court ruled correctly that the expert has not properly “ruled in” talc as a potential cause of ovarian cancer.  The Court of Appeal discarded that ruling on the basis that the trial court had combined “two distinct methods of proving specific causation—the use of epidemiological studies alone and the use of a differential etiology.”  Id. at *19 n.12.  We don’t think the trial court was confused at all.  The trial court examined studies that the plaintiff’s experts cited; it concluded that the studies on their faces could not “rule in” talc as a potential cause (and that some actually tended to disprove causation); and it rejected the expert’s differential diagnosis as unreliable.  We again understand that the standard of review requires viewing the evidence most favorable to the plaintiff, but that does not deprive the trial court the prerogative to determine what expert testimony is reliable (and therefore admissible) and what is not.

The motions for judgment notwithstanding the verdict on punitive damages.  The Court of Appeal’s careful exposition of the evidence inured to the defendants’ benefit when addressing punitive damages, on which the Court affirmed JNOV.  In short, not only is there no “conclusive evidence establishing genital talc use causes ovarian cancer,” it is not widely accepted in the medical community that talc is even a significant risk factor for ovarian cancer.  Id. *26.  The plaintiff’s specific causation expert did not warn her patients about genital talc use and ovarian cancer until this litigation, and her epidemiology expert chaired a committee that found in 2006 that the evidence was insufficient to conclude that perineal use of talc caused ovarian cancer.  Id.  In other words, “[t]here was no substantial evidence to support a finding, by clear and convincing evidence, of despicable conduct which [the manufacturer] carried out with a willful and conscious disregard of the safety of others.”  Id.

The motion for new trial.  The portion of the opinion affirming a new trial boils down to the standard of review.  While judgment as a matter of law is judged under a “substantial evidence,” standard, a judge deciding a motion for new trial sits as “thirteenth juror” and is permitted to weigh the evidence, draw inferences, and determine whether the evidence is sufficient to support the verdict or whether a new trial is warranted.  Id. at *28.  Given the state of the evidence, the Court of Appeal found no abuse of discretion in granting a new trial because “the evidence at trial would have supported a verdict in [the manufacturer’s] favor.”  Id. at *30.

The result is not a complete defense win, but any new trial will proceed without the holding company (and its presumably robust net worth), without punitive damages, and likely with greater scrutiny of what the plaintiff’s experts will be allowed to say to the jury.  This of course will not be the last word in talc-related litigation.