Berg v. Johnson & Johnson et al
Filing
330
ORDER denying 308 Motion for Judgment as a Matter of Law. Signed by U.S. District Judge Karen E. Schreier on 11/19/2013. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DEANE BERG,
Plaintiff,
vs.
JOHNSON & JOHNSON
CONSUMER COMPANIES, INC.,
Defendant.
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CIV. 09-4179-KES
ORDER DENYING DEFENDANT’S
MOTION FOR JUDGMENT AS A
MATTER OF LAW
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 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
1
J&J Consumer Companies’ motion for judgment as a matter of law on
Berg’s strict products liability claim is moot following the jury’s verdict in favor
of J&J Consumer Companies on that claim.
2
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
3
after taking into consideration the duration and quantity of her usage,
menopausal status, heritage, genetics, type of cancer, and family history, was
around 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 immunosuppressive 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 tract. Dr. Rosenthal concluded by
asserting talc is toxic and capable of causing cancer through either
inflammation or immuno-suppression (or a combination of the two).
4
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 50, a party can move for judgment
as a matter of law if the party against whom relief is sought has been fully
heard on that issue. Fed. R. Civ. P. 50(a)(1). “When federal jurisdiction is
premised on diversity of citizenship, a federal district court applies the
sufficiency standards of the state in which it sits.” In re Levaquin Prods. Liab.
Litig., 700 F.3d 1161, 1165 (8th Cir. 2012). Thus, South Dakota’s sufficiency
standards apply for purposes of J&J Consumer Companies’ motion. Under
South Dakota law,
the trial court must determine whether there is any substantial
evidence to sustain the action. The evidence must be accepted
which is most favorable to the nonmoving party and the trial court
must indulge all legitimate inferences therefrom in [her] favor. If
sufficient evidence exists so that reasonable minds could differ,
[judgment as a matter of law] is not appropriate.
Roth v. Farner-Bocken Co., 667 N.W.2d 651, 658-59 (S.D. 2003); see also SDCL
15-6-50(a).
DISCUSSION
In its motion for judgment as a matter of law, J&J Consumer Companies
makes five arguments: (1) Berg’s claim is barred by the applicable statute of
limitations; (2) Berg failed to produce legally sufficient evidence to support a
finding of recognized danger; (3) Berg did not offer required expert testimony on
the applicable standard of care or breach of that standard; (4) Berg failed to
produce legally sufficient evidence to support a finding that J&J Consumer
5
Companies’ conduct was a legal cause of her injuries; and (5) Berg failed to
produce legally sufficient evidence as to when any duty to warn arose.
I.
Statute of Limitations
The applicable statute of limitations under South Dakota law for Berg’s
negligent products liability claim is found in SDCL 15-2-12.2, which provides
as follows:
An action against a manufacturer . . . of a product, regardless of
the substantive legal theory upon which the action is brought, for
or on account of personal injury . . . caused by or resulting from
the manufacture, construction, design, formula, installation,
inspection, preparation, assembly, testing, packaging, labeling, or
sale of any product or failure to warn or protect against a danger
or hazard in the use, misuse, or unintended use of any product, or
the failure to provide proper instructions for the use of any product
may be commenced only within three years of the date when the
personal injury . . . occurred, became known or should have
become known to the injured party.
The issue then is on what date did Berg’s injuries become known or should
have become known to her. “Statute of limitations questions are generally for a
jury to decide.” Robinson v. Ewalt, 808 N.W.2d 123, 126 (S.D. 2012). This is
because “the point at which a period of limitations begins to run must be
decided from the facts of each case.” Strassburg v. Citizens State Bank, 581
N.W.2d 510, 513 (S.D. 1998).
Here, the parties dispute the date on which Berg knew or should have
known of her injuries. Berg claims she did not know of her injuries until
December 26, 2006, the date she was diagnosed with cancer. J&J Consumer
Companies contends Berg knew or should have known of her injuries before
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December 26, 2006, because Berg previously noticed some spotting between
her periods and felt fatigued and bloated; Berg underwent a pelvic exam in
early December 2006 and learned that there was blood clotting in her ovaries;
and Berg had her ovaries removed before Christmas. Because reasonable
minds could differ as to the exact date on which Berg knew or should have
known of her injuries, the court finds judgment as a matter of law is
inappropriate, and such a question was properly submitted to the jury.2
II.
Dangerous or Likely to be Dangerous
Berg must establish that J&J Consumer Companies knew or reasonably
should have known that its products are dangerous or likely to be dangerous
when used in a reasonably foreseeable manner. Burley v. Kytec Innovative
Sports Equip., Inc., 737 N.W.2d 397, 410 (S.D. 2007). Whether J&J Consumer
Companies’ products are unreasonably dangerous is a factual determination
for the jury. See Peterson v. Safway Steel Scaffolds Co., 400 N.W.2d 909, 914
(S.D. 1987) (“These issues of reasonableness and foreseeability . . . are usually
jury issues.”). J&J Consumer Companies argues Berg failed to produce legally
sufficient evidence to support a finding that its products create a recognized
2
Indeed, when the jury was asked to “determine the date on which
Deane Berg’s personal injuries became known to her or should have become
known to her,” the jury found “12/26/06” to be the appropriate date. Docket
327 at 1. As this court previously held in its September 21, 2010, order, a
finding that Berg’s injuries became known or should have become known to
her on December 26, 2006, results in the conclusion that she commenced her
cause of action within the three-year statutory period. Berg v. Johnson &
Johnson, No. CIV. 09-4179, 2010 WL 3806141, at *4 (D.S.D. Sept. 21, 2010).
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danger. Specifically, J&J Consumer Companies claims that Berg’s experts who
testified such a danger exists are not qualified and did not provide reliable
evidence, that controlling governmental agencies have concluded that there is
no danger, that the scientific consensus demonstrates that there is no
recognized danger, and that Dr. Cramer, Berg’s expert, failed to show a danger.
In terms of Berg’s experts, the court has already addressed the reliability
of their testimony and their qualifications in its April 12, 2013, order. Berg v.
Johnson & Johnson, ___ F. Supp. 2d ___, No. CIV. 09-4179, 2013 WL 1563227
(D.S.D. Apr. 12, 2013). J&J Consumer Companies merely asks the court to
reconsider its ruling and has not offered new arguments. Because J&J
Consumer Companies has not offered any new arguments, the court maintains
its findings in its April 12, 2013, order regarding the qualifications of Berg’s
experts as well as the reliability of the methodologies they used in forming their
opinions.
Next, J&J Consumer Companies contends that because government
agencies have not identified talc as carcinogenic, no jury could find talc is
dangerous or likely to be dangerous. But the fact that some government
agencies have not concluded that talc is dangerous does not end the jury’s
inquiry. Compliance with government regulations should be considered as
evidence of the exercise of reasonable care, but such compliance is not
conclusive on the issue of negligence. Zacher v. Budd Co., 396 N.W.2d 122, 134
(S.D. 1986). J&J Consumer Companies’ compliance with government
8
regulations is just one piece of evidence the jury can consider when
determining whether J&J Consumer Companies acted reasonably. See
Restatement (Second) of Torts § 295A (1965) (“In determining whether conduct
is negligent, the customs of the community, or of others under like
circumstances, are factors to be taken into account, but are not controlling
where a reasonable man would not follow them.”).
J&J Consumer Companies also claims that the consensus in the
scientific community is that there is no danger with the perineal use of talc.
The evidence presented at trial, particularly by Berg’s experts, conflicts with
such a broad statement. Not only did Dr. Cramer testify that he believed talc
was the cause of Berg’s ovarian cancer, he also testified that over twenty
studies have shown an overall association between talc and ovarian cancer.
After considering the combined data from all these studies, Dr. Cramer testified
that women have somewhere between a 20 to 40 percent increased risk of
developing ovarian cancer if they use talc in their perineal area. Additionally,
Dr. Rosenthal testified that talc has immuno-toxic and immuno-suppressive
capacities, which may lead to the development of cancer. He also testified that
talc is toxic and toxins oftentimes lead to cancer once exposed to the body.
Thus, some individuals in the scientific community believe talc is dangerous or
likely to be dangerous when used in and around a woman’s perineum.
Berg introduced substantial evidence on the issue of whether J&J
Consumer Companies’ products are dangerous or likely to be dangerous. She
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offered evidence from two qualified scientists who testified regarding the
potential harms talc may cause to a woman’s ovaries. One of the experts,
Dr. Cramer, testified that Berg’s genital use of talc was more likely than not the
cause of her ovarian cancer. A reasonable juror could believe this testimony
and conclude that talc is dangerous or likely to be dangerous. Therefore,
judgement as a matter of law on the issue of whether talc is dangerous or likely
to be dangerous is denied.
III.
Expert Testimony
J&J Consumer Companies also argues judgement as a matter of law
should be granted in its favor because Berg did not offer expert testimony on
the applicable standard of care or on the breach of that standard. To prove her
claim for negligent products liability, Berg must establish, along with other
elements, that (1) J&J Consumer Companies failed to exercise reasonable care
and adequately warn of the danger or instruct on the safe use of the products;
and (2) a reasonable manufacturer under the same or similar circumstances
would have warned of the danger or instructed on the safe use of the products.
Burley, 737 N.W.2d at 410. The issue here is whether Berg was required to
offer expert testimony to prove these elements of her claim.
Under South Dakota law, expert testimony typically must be offered to
prove causation when claiming negligent failure to warn. See Burley, 737
N.W.2d at 411 (“As with her previous claims, causation for failure to warn
requires expert testimony.”). But see id. at 411 (“Had the product not been
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altered before the accident, Burley may have had sufficient evidence without
expert testimony because absent a misuse or alteration it may be reasonable to
infer the [product] was the legal or proximate cause of her injuries.”). J&J
Consumer Companies claims Berg is required to offer expert testimony not only
on the issue of causation, but also to show the applicable standard of care and
breach of such standard.
J&J Consumer Companies directs the court to two South Dakota
Supreme Court opinions in support of its argument that Berg must present
expert testimony to establish the applicable standard of care for a failure to
warn claim: Burley v. Kytec Innovative Sports Equipment, Inc.,737 N.W.2d 397
(S.D. 2007) and Luther v. City of Winner, 674 N.W.2d 339 (S.D. 2004).
In Burley, the plaintiff brought a product liability action against a
manufacturer of a sports training product, claiming defective design and failure
to warn under theories of both strict liability and negligence. The South Dakota
Supreme Court held expert witness testimony was required for the defective
design claims because it is not “within the common expertise of a jury to
deduce merely from an accident and injury that a product was defectively
designed.” Id. at 407. With respect to the failure to warn claims, the South
Dakota Supreme Court held expert testimony was required, under the specific
circumstances of that case, to show causation as well as whether the product
was unreasonably dangerous because those areas were beyond the common
expertise of a jury. Id. at 410-11 (“As with her previous claims, causation for
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failure to warn requires expert testimony.”). Burley, therefore, calls for expert
testimony in three situations: (1) to show that a product is defectively designed
and, thus, should have been designed differently; (2) to show that a product is
unreasonably dangerous; and (3) if the specific circumstances demand it, to
show that a manufacturer’s failure to warn was the legal cause of plaintiff’s
injuries.
In Luther, the plaintiff brought suit against a city and city engineer,
claiming negligent design and failure to warn in relation to a public sidewalk.
Just as in Burley, the South Dakota Supreme Court held expert testimony was
required to prove the sidewalk was designed and constructed improperly. Id. at
345 (requiring expert testimony on the standard of care for designing and
constructing the sidewalk). This was because “determining how to design the
project” required the city engineer “to take issues into consideration that are
not within the typical lay person’s realm of knowledge.” Id. at 346. With respect
to plaintiff’s failure to warn claim, the South Dakota Supreme Court reversed
the trial court’s dismissal of the claim, finding that expert testimony was not
necessary for the failure to warn claim. Id. at 347-48. The fact that the plaintiff
failed to present expert testimony as to the standard of care in designing the
project was not fatal to his failure to warn claim. Id.
In both Burley and Luther, the South Dakota Supreme Court required
expert testimony to show a design defect, which necessarily calls into question
the standard of care used in designing the product. The Burley court also
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required expert testimony on the issue of causation in a failure to warn case
because, under the circumstances, such a determination was outside a typical
layperson’s realm of knowledge.3 The Luther court made no indication that
expert testimony was required for any of the necessary showings for the failure
to warn claim. Therefore, the court disagrees with J&J Consumer Companies’
broad assertion that South Dakota law requires Berg to offer expert testimony
on the applicable standard of care (or breach thereof) for her failure to warn
claim.4
Under South Dakota law, “[t]here is no requirement that a party produce
expert testimony when the question is within a layperson’s knowledge.” Luther,
674 N.W.2d at 344. The question becomes then, what issues pertaining to
Berg’s negligent failure to warn claim are outside a typical layperson’s
3
The South Dakota Supreme Court in Burley suggested expert testimony
may not, in some circumstances, even be required to prove causation. See 737
N.W.2d at 411 (“Had the product not been altered before the accident, Burley
may have had sufficient evidence without expert testimony because absent a
misuse or alteration it may be reasonable to infer the [product] was the legal or
proximate cause of her injuries.”).
4
J&J Consumer Companies’ argument relies, in large part, on the
following quote from Burley: “Indeed, expert testimony is ordinarily required to
establish a claim of negligence in a products liability action. . . . [A]bsent expert
testimony, there is no basis for the jury to evaluate the actions of an ordinary
prudent person.” 737 N.W.2d at 408-09 (citing Dancy v. Hyster Co., 127 F.3d
649, 654 (8th Cir. 1997) (applying Arkansas law)). But this discussion in
Burley was with respect to the standard of care pertaining to the claim for
defective design, not the failure to warn claim. Indeed, the case the Burley
court cited for this proposition was exclusively a design defect claim. Dancy,
127 F.3d at 651. The court sees no reason to extend this requirement to the
failure to warn context presented in this case.
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knowledge. Similar to the finding in Burley, the court finds the issue of
causation here is outside a layperson’s knowledge because determining
whether a product causes cancer requires a high level of expertise. For the
same reason, whether the products at issue in this case are dangerous or likely
to be dangerous is a matter outside a layperson’s knowledge and thus requires
expert testimony. Berg offered expert testimony on each of these issues.
J&J Consumer Companies argues Berg should also be required to offer
expert testimony on a manufacturer’s standard of care in a failure to warn
context (i.e., whether a reasonable manufacturer in J&J Consumer Companies’
position would have warned). The court disagrees. The jury must first
determine whether the products here are dangerous or likely to be dangerous,
and only if the jury answers in the affirmative to this question does it reach the
standard of care issue. If the jury gets to the standard of care question of
whether a reasonable manufacturer would warn, it has already determined
that the products are dangerous or likely to be dangerous without a proper
warning/instruction.
Assuming the jury determines the products are dangerous or likely to be
dangerous without a proper warning/instruction, the jury then weighs (1) the
likelihood of harm and gravity of such harm if it occurs with (2) the costs to the
manufacturer associated with placing a warning on its products. The expert
testimony Berg offered regarding whether the products are dangerous or likely
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to be dangerous goes directly to the first issue (likelihood and gravity of the
harm). And the second issue was addressed through a stipulation by the
parties, which expressed that it was physically feasible for J&J Consumer
Companies to place a warning on its products. Thus, under the circumstances
of this case, the jury was capable of performing its analysis without additional
expert testimony regarding the applicable standard of care.5
This result also makes sense practically. Who better to determine
whether a warning should be provided than the people to whom the warning
would be addressed? A layperson is in a position (if not the best position) to
know whether a particular harm or possible harm is deserving of a warning. As
a result, the court finds that the applicable standard of care and breach thereof
involved in this negligent failure to warn case is within a typical layperson’s
realm of knowledge. See Mattis v. Carlon Elec. Prods., 295 F.3d 856, 863 (8th
Cir. 2002) (finding expert testimony is not necessary to show that a warning is
inadequate if the alleged inadequacy of the warning is within the
comprehension of the average layperson) (applying federal law). Therefore, Berg
5
The jury also had evidence before it that other participants in the talc
industry were warning of the possible dangers associated with perineal talc
use. For example, J&J Consumer Companies’ talc supplier, Luzenac, placed a
warning on its products starting in 2006. GlaxoSmithKline, a healthcare
company and competitor of J&J Consumer Companies, published a pamphlet
in 2005 that warned of the increased risk of ovarian cancer that talc use
creates.
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was not required to offer expert testimony on the applicable standard of care or
breach thereof.
IV.
Legal Cause
J&J Consumer Companies also contends Berg failed to offer sufficient
evidence to support a finding that its failure to warn was a legal cause of her
injuries. To succeed on her negligent failure to warn claim, Berg must prove
J&J Consumer Companies’ failure to warn or instruct was a proximate or legal
cause of her injury. Burley, 737 N.W.2d at 410. Legal cause means “an
immediate cause which, in the natural or probable sequence, produces the
injury complained of. For legal cause to exist, the harm suffered must be a
foreseeable consequence of the act complained of.” S.D. Pattern Jury
Instruction (Civil) 20-10-20. J&J Consumer Companies argues Berg failed to
provide sufficient evidence to show its products are capable of causing ovarian
cancer and, more specifically, whether they in fact caused Berg’s ovarian
cancer.
Berg offered testimony from three experts to establish causation:
Dr. Cramer, Dr. Rosenthal, and Dr. Godleski. Dr. Cramer provided testimony in
the area of epidemiology and how it relates to talc use and ovarian cancer. He
stated that twenty-three studies have shown a positive association between
genital talc use and ovarian cancer. After combining the data from these
reports into a meta-analysis, Dr. Cramer concluded genital talc use generates a
16
1.3 relative risk, or a 30 percent increase in the risk for ovarian cancer. He
next considered Berg’s specific characteristics in light of the meta-analysis and
found her individual odds ratio6 to be roughly 3.5, or a 250 percent increased
risk. Dr. Cramer then examined the Bradford Hill criteria, which is a set of
criteria used to assess causation. In re Viagra Prods. Liab. Litig., 572 F. Supp.
2d 1071, 1079 (D. Minn. 2008). After testifying in detail about the specific
Bradford Hill criteria, Dr. Cramer concluded perineal talc use is a cause of
ovarian cancer. Lastly, he testified that Berg’s exposure to talc, taking into
consideration her specific odds ratio of 3.5, combined with other individual
characteristics (e.g., no family history of ovarian/breast cancer, not Jewish,
and lacking the BRCA 1 and BRCA 2 genes) leads him to conclude that her
perineal talc use more likely than not caused her ovarian cancer.
Dr. Godleski, a pathologist, 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
talc particles are not naturally occurring 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.
6
Dr. Cramer used relative risk and odds ratio interchangeably in his
testimony.
17
Berg’s third expert, Dr. Rosenthal, was a toxicologist who provided
testimony regarding the biological plausibility of talc causing ovarian cancer.
Dr. Rosenthal testified that talc has immuno-toxic potential as well as
immuno-suppressive capacities, and he testified in detail how these two
characteristics may result in the development of cancerous cells. He further
testified that applying talc to the perineum area allows talc particles access to
the ovaries because they can migrate up the female reproductive tract.
Dr. Rosenthal concluded his testimony by asserting talc is toxic and capable of
causing cancer through either inflammation or immuno-suppression (or a
combination of the two).
The court finds that the totality of the evidence Berg presented at trial,
which must be accepted most favorable to her and all legitimate inferences
therefrom be made in her favor, amounts to substantial evidence and creates a
factual question in which reasonable minds could differ. J&J Consumer
Companies’ arguments regarding whether there was enough evidence to
establish that talc was an “immediate” or “natural and probable” cause of
Berg’s ovarian cancer go to the weight to be given to Berg’s evidence. The same
holds true for its arguments pertaining to specific causation. Under South
Dakota law, “[i]ssues of negligence, contributory negligence, and proximate
cause are ordinarily questions of fact and it must be a clear case before a trial
judge is justified in taking these issues from the jury.” Luther, 674 N.W.2d at
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348. The court finds Berg satisfied her burden by offering substantial evidence
in which a reasonable jury could find in her favor on the issue of legal cause.
V.
When Duty Arose
Lastly, J&J Consumer Companies claims Berg failed to provide legally
sufficient evidence as to when any duty to warn arose. A manufacturer has a
duty to warn when it knows or reasonably should know that its products are
dangerous or likely to be dangerous when used in a reasonably foreseeable
manner. Burley, 737 N.W.2d at 410. The duty to warn arises, therefore, when
the manufacturer knew or reasonably should have known of the possible
danger. This is a fact issue for the jury. See Peterson, 400 N.W.2d at 914
(“[I]ssues of reasonableness and foreseeability . . . are usually jury issues.”).
Berg introduced evidence of studies articulating an association between
perineal talc use and ovarian cancer dating back to 1971. Evidence was also
introduced that J&J Consumer Companies stayed current on all relevant
literature pertaining to any alleged association between talc and cancer.
Therefore, a reasonable jury could find that J&J Consumer Companies
reasonably should have known of a possible danger as early as 1971. Because
sufficient evidence exists, judgment as a matter of law is denied.
CONCLUSION
After reviewing the evidence presented during the course of trial, the
court finds substantial evidence exists to sustain Berg’s negligent products
19
liability action. Therefore, judgment as a matter of law on Berg’s negligence
claim is denied. Accordingly, it is
ORDERED that defendant’s motion for judgment as a matter of law
(Docket 308) is denied. Judgment will be entered in favor of plaintiff, Deane
Berg, on her negligent failure to warn claim.
Dated November 19, 2013.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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