The Georgia Court of Appeals ordered the dismissal of four lawsuits brought against Johnson & Johnson alleging that fatal cancers were caused by asbestos-containing talcum, saying a medical expert didn’t comply with the specifics of a state law.
The medical expert used in all four cases, Dr. Richard Kradin, failed to offer evidence that other potential causes were not the sole or most likely cause of the fatal cancers.
Georgia’s law concerning asbestos-related lawsuits requires a medical expert to make a prima facia case that asbestos was involved in causing the cancer and to certify “to a reasonable degree of medical probability” that exposure to asbestos was a substantial contributing factor to the diagnosed cancer. The doctor must also show that other potential causes, such as smoking, were not the sole or most likely cause of the cancer.
In the four cases, Kradin concluded there were no other environmental exposures that were the sole or most likely cause, meeting all the criteria of the law but one.
Each of the cases — from Dougherty, Cobb, Spalding and Gwinnett counties — sought damages from Johnson & Johnson alleging that using Johnson’s Baby Powder and Johnson & Johnson’s Shower to Shower on a regular basis over a number of years during their lifetimes caused terminal ovarian cancer in four women.
Each woman used the Johnson & Johnson products for between two and four decades before becoming ill and died between 2016 and 2019.
When Georgia lawmakers enacted their asbestos litigation law, they made clear the purpose of the act was to give priority to claimants who could demonstrate actual physical harm or illness caused by asbestos and defer the rights of potential claimants who had not yet suffered physical impairment.
For suits filed after May 1, 2007, plaintiffs seeking damages for asbestos-related cancer other than mesothelioma needed to include a report laying out medical findings needed to establish evidence of physical impairment.
Those findings must include that the exposed person has or had a cancer other than mesothelioma; that the cancer is a primary cancer; that exposure to asbestos was a substantial contributing factor to the diagnosed cancer; and that other potential causes were not the sole or most likely cause of the injury at issue. Failing to meet that standard would result in a suit’s dismissal.
The trial judges found that because Kradin certified the third requirement, he necessarily certified that other potential causes of the cancer were not the sole or most likely cause of the illness. But that interpretation misreads the statute, which requires all four parts to be certified.
Tens of thousands of injury claims have been leveled against J&J and its longtime supplier Imerys Talc America in recent years. Those claims arise from diagnoses of mesothelioma and ovarian cancer that were allegedly caused by long-term exposure to talc products containing asbestos.