Skip to main content
Find a Lawyer
Please enter a legal issue and/or a location
Begin typing to search, use arrow keys to navigate, use enter to select

Find a Lawyer

More Options

Understanding Expert Witness Testimony: J&J's Battle of the Experts

By Vaidehi Mehta, Esq. | Last updated on

You may have heard of the purported link between baby powder and cancer. In the legal world, the biggest target of associated lawsuits has for years been the pharmaceutical giant Johnson & Johnson. Some cases have been successful for the plaintiffs, while others have failed. The litigation has caused such a headache for the pharma company that it's even tried to sneak out by filing bankruptcy.

FindLaw has covered these cases before. But this is not an examination of the merits of the claims. Instead, it is a look at the often vital role of expert witnesses in litigation.

J&J Argues Against Expert Testimony

Two separate lawsuits against J&J in New Jersey involved women alleging that the talcum powder in J&J products caused them to develop ovarian cancer. Not so fast, said J&J. The company's lawyers took issue with the plaintiff's expert witnesses, arguing that the court should not have used their testimony. They claim that the plaintiffs' experts didn't offer sufficient proof establishing the connection between talc and the disease. The court agreed and undid its ruling and award to the plaintiff.

In another New Jersey case, J&J was ordered to pay a total of $223.8 million in damages to plaintiffs who claimed that its products (Johnson's Baby Powder and Shower to Shower) contained asbestos and led to them developing mesothelioma. The claims focused on failure to warn, design defects, and defective manufacturing under the New Jersey Products Liability Act. During the trial, the court allowed certain testimony by expert witnesses from both the plaintiffs and J&J. The jury eventually ruled in favor of the plaintiffs, awarding them compensatory and punitive damages. Then, when the pharma company challenged the plaintiff's expert witnesses, the court agreed again and reversed the award.

There seems to be a pretty common pattern here. What exactly is the issue? Let's take a refresher on expert witness testimony at trial.

Courtroom Experts and Their High-Stakes Game

In the wild world of courtroom drama, there are a few roles that reign in the somber air of the court room. Judges are one (well, in theory). Expert witnesses are another. For a lot of cases, it's the experts who are the real VIPs of the courtroom game. Compared to "lay witnesses" (a passerby eyewitness to a shooting, a the mother of the rapist who speaks to his character, the best friend of an accused bank robber who corroborates his alibi), expert witnesses are not tied to the incident or any of the parties. Rather, they are "retained" (hired) specifically to come in and drop knowledge bombs on something that is critical to the case but possibly difficult to understand. They're the folks with experience, skills, education, or know-how in specific fields, here to break down complex technical or scientific stuff for the court and jury.

Why do we need expert witnesses in addition to lay witnesses? Well, there's simply a lot of information (evidence) that is essential to get to the bottom of during a trial, and lay witnesses simply aren't allowed to opine on them in front of a jury. Lay witnesses can only testify about what they personally perceived (saw, heard, smelled, tasted, felt), and some limited opinions based on what they observed. They are not allowed to speak about matters that require expert knowledge, such as the cause of an accident or the value of property. So for example, an eyewitness to a car accident can testify about what they saw happen, such as the cars involved, the direction they were traveling, and the speed they were going. But he cannot testify about the cause of the accident (unless it were established that he was a car expert and had the necessary expertise to do so).Expert witnesses, by contrast, can rely on their knowledge and skill to draw conclusions from evidence that they did not personally observe. Expert witness testimony can be used to support a variety of claims in a trial, such as the cause or likelihood of an event, someone's medical condition or mental state, the value of property, the authenticity of a document, the meaning of a word or concept. For example, an engineer might testify about the cause of a building collapse; a handwriting expert might testify about the authenticity of a signature; or a psychologist might testify about the mental state of a defendant at the time of the crime.

Experts are typically retained by one of the parties to a lawsuit and paid a fee for their services. Once retained, the expert will review the evidence in the case and form an opinion on the issues that they have been asked to address. The expert will then testify at trial and explain their opinion to the court and jury. Expert witness testimony can be very persuasive, and it can play a significant role in the outcome of a trial. The jury's decision must be based on the evidence that is presented in court. The jury cannot speculate or draw their own conclusions that are not supported by the evidence.And if all of this sounds bougie, it definitely is. Experts do not come cheap. By nature of being specialists, their time is worth a lot. Even though litigation fees are sometimes awarded, this is not guaranteed. This can often lead to a disparity when one party to the trial has limited means, unless there are rules providing for fees awarded to the winning party.

Reigning in the Experts

Expert testimony is not the end-all-be-all. Expert witnesses are not always right; they can be biased or make mistakes. As such, their testimony is subject to cross-examination by the opposing party. The judge can also strike expert testimony if it is irrelevant, unreliable, or prejudicial. Their testimony can also be complex and difficult to understand, since they often use technical jargon and complex concepts. This can make it difficult for juries to understand their testimony and to weigh it fairly. It's important to note that expert witness testimony is only one piece of evidence that a jury will consider when making a decision. Juries are not required to believe expert witness testimony, and they may weigh it differently than other types of evidence. Even the judge cannot tell the jury what facts to accept or reject. The jury is ultimately responsible for deciding whether or not to believe their testimony and for making the final verdict in the case.

One of the key jobs of a trial court judge is to be the gatekeeper of good and bad evidence. There are very specific, official rules of evidence, as well as case law, that determine what can and can't come in to influence a jury's decision, and these rules are slightly different for each jurisdiction and in criminal versus civil trials. These rules cover how a court should decide if expert witness testimony should be allowed in a civil case. The court must make sure the expert's opinion is beyond the understanding of an average juror, relies on reliable methods, and that the expert is qualified. The court checks if the scientific theory has been tested, reviewed by peers, has an error rate, and is generally accepted in the scientific community. If the expert's methods and data don't meet these standards, their testimony can be excluded as it lacks a solid foundation. This ensures the jury isn't exposed to unreliable or unsupported scientific claims.

What Went Wrong with Witnesses Against J&J

In thecase involving ovarian cancer, the court conceded that the plaintiffs' expert witnesses (an epidemiologist specializing in identifying avoidable cancer risk factors and a medical professor and researcher of ovarian cancer) were considered qualified. However, the court found that their testimony lacked solid scientific evidence. The experts didn't sufficiently explain to the jury how talc in the ovaries causes ovarian cancer. The judge criticized their analysis for being "shallow," and he even went so far as to imply that their testimony seemed motivated by game-ifying the trial in order to win. Due to these errors, the court reversed the jury verdict. Since these mistakes were clearly capable of producing an unjust result, the judge ordered new trials.

In the case involving asbestos, J&J's main complaint was about the court admitting expert testimonies without proper evaluation. They claim the experts' testimonies were unreliable and not based on accepted methods or facts. J&J also argued that the court failed to follow established procedures in allowing these testimonies. The court agreed, and since it also concluded that the outcome of the case was compromised, it similarly ordered a new trial.

All of this just goes to show how important it really is to make sure you have a bulletproof expert witness — especially when you're up against a company with pockets as deep as Johnson & Johnson, whose own experts and attorneys are getting paid big bucks to find flaws in their opponents. Not only that, but they might come back with their own countersuit: J&J is now suing some of the experts who testified against them, saying that they published fraudulent research that harmed the company's reputation. For those of you still unsure what to make of this, you're not alone. What's clear is that the "battle of the experts" is often what makes or breaks the outcome of two otherwise similar lawsuits. If any readers are affected by the J&J litigation, you can only hope you're on the winning side.

Was this helpful?

Response sent, thank you

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

Or contact an attorney near you:
Copied to clipboard