CAUSATION: Echeverria v. Johnson & Johnson* (Court of Appeal, Second District, Division 3, B286283)
This case arises from a jury verdict on behalf of a plaintiff who alleged that she developed ovarian cancer as a result of her use of defendants' product containing talc. Following a jury trial, the plaintiff was awarded a total of $70 million compensatory damages and $347 million in punitive damages. Defendants filed post-trial motions for a judgment notwithstanding the verdict (JNOV) and for a new trial arguing that the plaintiff's expert failed to present evidence that talc was the cause of her cancer. The trial court found that the expert testimony was insufficient to establish specific causation and granted the JNOV and new trial. Plaintiff appealed.
CMA, along with other amici, filed an amicus curiae brief seeking to provide the court guidance to better evaluate evidence and opinion testimony surrounding causation. Specifically, CMA's brief seeks to assist the court in understanding the analytical process known to physicians as "differential diagnosis" which requires an evaluations of hypothetical situations concerning what might have happened, but did not. It argues that the proper analysis for causation should be in terms of but-for or counterfactual causation accomplished by comparing and evaluating hypothetical situations concerning what might have happened such that the crucial causation inquiry is what would have happened.
On July 9, 2019, the Court of Appeal found that substantial evidence supported the jury's finding that talcum powder was a substantial factor in causing the plaintiff's cancer and partially reversed the trial court's order granting JNOV as to the liability of one of the defendants while affirming the trial court's order granting a new trial. The plaintiff's petition for review by the California Supreme Court was denied on October 23, 2019.