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Berg v. Johnson & Johnson Consumer Cos., Inc.

United States District Court, D. South Dakota, Southern Division

November 19, 2013

DEANE BERG, Plaintiff,
v.
JOHNSON & JOHNSON CONSUMER COMPANIES, INC., Defendant

Page 1152

For Deane Berg, Plaintiff: Gregory Alan Eiesland, LEAD ATTORNEY, Johnson, Eiesland Law Offices, PC, Rapid City, SD; R. Allen Smith, Jr., LEAD ATTORNEY, PRO HAC VICE, The Smith Law Firm, PLLC, Ridgeland, MS.

For Johnson & Johnson, Johnson & Johnson Consumer Companies, Inc., Defendants: Gene M. Williams, Kathleen Anne Frazier, LEAD ATTORNEYS, PRO HAC VICE, Shook, Hardy & Bacon, LLP, Houston, TX; J. Crisman Palmer, LEAD ATTORNEY, Gunderson, Palmer, Goodsell & Nelson, LLP, Rapid City, SD.

For Luzenac America, Inc., Defendant: J. Lee Gray, LEAD ATTORNEY, PRO HAC VICE, Holland & Hart LLP, Greenwood Village, CO; Steven W. Sanford, LEAD ATTORNEY, Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, SD; William W. Maywhort, LEAD ATTORNEY, PRO HAC VICE, Holland & Hart LLP, Colorado Springs, CO; Keeya M. Jeffrey, PRO HAC VICE, Holland & Hart LLP, Denver, CO.

For Exponent, Inc., Interested Party: Daniel R. Fritz, II, LEAD ATTORNEY, Lindquist & Vennum LLP, Sioux Falls Office, Sioux Falls, SD; James J. Ficenec, PRO HAC VICE, Archer Norris, Walnut Creek, CA.

Page 1153

ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW

KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE.

Plaintiff, Deane Berg, brought suit against defendants, Johnson & Johnson, Johnson & Johnson Consumer Companies, Inc., and others, alleging claims for strict products liability, negligent products liability, breach of warranties, civil conspiracy, and acting in concert. After the court entered various orders following motions by defendants, the claims that remained for trial were Berg's claims for strict products liability, negligent products liability, breach of warranties, and civil conspiracy

Page 1154

against defendants Johnson & Johnson and J& J Consumer Companies.

A jury trial commenced on Berg's remaining claims on September 24, 2013. At the conclusion of Berg's case-in-chief, defendants moved for judgment as a matter of law on all claims. The court entered judgment in favor of Johnson & Johnson with respect to all claims against it as well as in favor of J& J Consumer Companies with respect to Berg's claims for civil conspiracy and breach of warranties. The court reserved ruling on J& J Consumer Companies' motion regarding Berg's strict products liability and negligent products liability claims. J& J Consumer Companies renewed its motion at the conclusion of the evidence, and the court again reserved ruling. The jury returned a verdict in favor of J& J Consumer Companies on Berg's strict products liability claim, returned a verdict in favor of Berg on her negligent products liability claim, and awarded no damages. The court now takes up J& J Consumer Companies' motion for judgment as a matter of law on Berg's claim for negligent products liability.[1] Berg resists the motion. For the following reasons, the motion is denied.

BACKGROUND

The pertinent facts to this order, viewed in the light most favorable to Berg, the nonmoving party, are as follows:

Berg used J& J Consumer Companies' products--Johnson's Baby Powder and Shower to Shower--on a daily basis in her perineum area to relieve chafing and for feminine hygiene purposes from 1975 until 2007. Some time in late 2006, Berg began feeling fatigued and bloated and noticed some spotting between her periods. She underwent a pelvic exam in early December 2006, which revealed blood clotting in her ovaries. Her ovaries were removed before Christmas of that year. On December 26, 2006, Berg was diagnosed with ovarian cancer.

Talc is one of the main ingredients in Johnson's Baby Powder and Shower to Shower. Berg alleges the talc found in defendant's products caused her ovarian cancer and claims J& J Consumer Companies should have included a warning on its products. Berg would not have used defendant's products in the manner in which she did if the products had included a warning. J& J Consumer Companies stipulated that placement of a warning on its products is physically feasible, but it argued that no warning is necessary because talc does not cause ovarian cancer, either generally or specifically in Berg's case.

Studies have articulated an association between perineal talc use and ovarian cancer dating back to 1971. Over twenty studies have shown a positive association between talc and ovarian cancer. J& J Consumer Companies admitted that it was aware of all literature regarding talc use and cancer at all times.

Dr. Daniel Cramer, an epidemiologist and one of Berg's expert witnesses, performed a meta-analysis using data from several studies and testified that women have between a 20 to 40 percent increased risk (1.3 odds ratio) of developing ovarian cancer with perineal talc use. He examined the Bradford Hill criteria and concluded talc use in the perineal area causes ovarian cancer. Dr. Cramer also testified that Berg's specific odds ratio, which he calculated after taking into consideration the duration and quantity of her usage, menopausal status, heritage, genetics, type of cancer, and family history, was around

Page 1155

3.5 (a 250 percent increased risk). Dr. Cramer believed Berg's perineal talc use more likely than not caused her ovarian cancer.

Berg's second expert, Dr. John Godleski, was a pathologist. Dr. Godleski examined tissue from Berg's ovaries, fallopian tubes, and lymph nodes. He found nineteen talc particles in tissue samples from her left ovary, fallopian tube, and lymph nodes. He testified that the talc particles did not naturally occur in the human body and should not have been in Berg's tissue. Lastly, Dr. Godleski testified that he believed the presence of talc particles in Berg's tissue is evidence of a causal link between talc and Berg's ovarian cancer.

Berg's third expert, Dr. Gary Rosenthal, was a toxicologist who provided testimony regarding biological plausibility, i.e., whether it is biologically plausible that talc causes ovarian cancer. Dr. Rosenthal testified that talc has immuno-toxic potential (which leads to inflammation) as well as immuno-suppressive capacities (a down-regulation of the normal functions of the immune system). These two characteristics may result in the development of cancerous cells. He further testified that talc can get to the ovaries by way of simple application of talcum powder to the perineum area, after which the talc migrates up the female reproductive ...


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