Canada’s talcum powder litigation and the problem of lax standards

19th Jul 2016

By: Scévole de Cazotte.

One of the United States’ most recent–and troubling–exports to Canada is litigation against Johnson & Johnson (J & J) related to talcum powder. In May, Johnson & Johnson was hit with a $55 million verdict in a Missouri lawsuit where the claimant argued that her ovarian cancer was caused by decades of baby powder use for feminine hygiene purposes. A large portion of the judgment was made up of punitive damages, which are intended to punish the defendant and deter future misconduct. J & J has said that it will appeal the outcome.

Influenced by this verdict, a class action lawsuit has now been filed in Canada by two Toronto firms. Claimants include the estate of a Montreal woman who succumbed to ovarian cancer this year, as well as seven other claimants who live in Ontario and Quebec. Other class action filings are likely to follow; indeed, the Missouri verdict is already being used in the solicitation materials of other Canadian law firms. The talc claims pose two significant concerns regarding the administration of justice.

Problem One: In Canada each province and territory establishes its own class action regime, which has led to different approaches and inconsistent standards for class treatment. One thing is clear: the threshold for certifying a lawsuit to proceed as a class action in every province of Canada is low. As claimants’ lawyers well know, class actions present a particularly coercive mechanism against corporate defendants because of the cost to litigate them and the potential size of a damages award, often forcing defendants to settle even meritless claims. Coupled with the growth of third party litigation funders, these loose standards make the Canadian class action lawsuit system even more vulnerable to abuse. For more information on class action trends, see the U.S. Chamber Institute for Legal Reform paper, “Painting an Unsettling Landscape: Canadian Class Actions 2011-2014”.

Problem Two: Proving a link between talc use and cancer requires scientific evidence. But when it comes to the standards for scientific studies, data, and expert testimony allowed in a court trial, Missouri’s standards were not up to the task, calling into question the validity of the case against Johnson & Johnson.

We have all seen the headlines of supposedly scientific studies that turned out to be less than accurate. The controversy over whether vaccinations cause autism in children, for example, started after a single research paper was published in a British medical journal. That research, later proven to be false, was paid for by lawyers wanting to sue vaccine makers.

In the lawsuit against Johnson & Johnson, a “star witness” was allowed to testify on the link between talcum powder and ovarian cancer. But there has never been a scientifically proven link between talc and cancer — ovarian or otherwise. The American Cancer Society has looked but found no definitive link. Two years ago, the U.S. Food and Drug Administration denied a petition to put a warning label on talcum powder because of a lack of evidence. And Cancer Research UK states on its website: “If something truly causes cancer, you would expect people who are exposed to more of that thing to have a higher risk. For example, the more you smoke, the higher your risk of lung cancer. But the majority of the studies have not found a similar relationship for talc use and ovarian cancer”.

Nevertheless, Missouri’s low standard allowed the witness to testify. The exact same “expert” also testified in an earlier Missouri case that resulted in a large verdict against J & J. In contrast, a more stringent evidence standard, developed initially in the U.S. Supreme Court case Daubert v. Merrell Dow Pharmaceuticals, Inc., 506 U.S. 579 (1993), is the law in 40 other U.S. states and in the U.S. federal courts. It sets out the criteria for allowing scientific expertise. These are common-sense factors, such as: Is the evidence being admitted in court relevant to the facts of the case at hand? Are the conclusions of a scientific study seen as reliable by scientists other than those who conducted the study? And, were the study’s findings reached using broadly accepted scientific methods?

We understand that the Canadian Supreme Court has adopted more stringent requirements to qualify expert witnesses, embracing a test that demands that the expert be impartial and independent, with opinions that would not change regardless of the party retaining the expert. This is an encouraging development but does not fully address the scientific basis for the expert’s testimony. Better gate-keeping which reflects an awareness of the importance of peer acceptance and proper scientific method would go a long way to improving the delivery of justice in the world’s courtrooms. This gate-keeping is particularly important in class action cases, which aggregate claims in ways that raise the stakes exponentially for defendant companies.