BRANDI CARL VS. JOHNSON & JOHNSON JOHNSON CONSUMER COMPANIES, INC. (L-6546-14 AND L-6540-14, ATLANTIC COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0387-16T1
A-0978-16T1
BRANDI CARL and JOEL CARL,
Plaintiffs-Appellants,
v.
JOHNSON & JOHNSON, APPROVED FOR PUBLICATION
JOHNSON & JOHNSON August 5, 2020
CONSUMER COMPANIES, INC., APPELLATE DIVISION
IMERYS TALC AMERICA f/k/a
LUZENAC AMERICA, INC., and
PERSONAL CARE PRODUCTS
COUNCIL f/k/a COSMETIC,
TOILETRY AND FRAGRANCE
ASSOCIATION (CTFA),
Defendants-Respondents.
DIANA BALDERRAMA and
GILBERT BALDERRAMA,
Plaintiffs-Appellants,
v.
JOHNSON & JOHNSON,
JOHNSON & JOHNSON
CONSUMER COMPANIES, INC.,
IMERYS TALC AMERICA f/k/a
LUZENAC AMERICA, INC., and
PERSONAL CARE PRODUCTS
COUNCIL f/k/a COSMETIC,
TOILETRY AND FRAGRANCE
ASSOCIATION (CTFA),
Defendants-Respondents.
Argued October 24, 2019 – Decided August 5, 2020
Before Judges Alvarez, Suter, and DeAlmeida.
On appeal from the Superior Court of New Jersey,
Law Division, Atlantic County, Docket Nos. L-6546-
14 and L-6540-14.
Richard M. Golomb, argued the cause for appellants
(D'Amato Law Firm, Golomb & Honik, PC, and Ted
G. Meadows (Beasley Allen Crow Methvin Portis &
Miles, PC) of the Alabama bar, admitted pro hac vice,
attorneys; Paul R. D'Amato, Richard M. Golomb,
Tammi Markowitz, and Ted G. Meadows, on the
briefs).
Susan M. Sharko and Kaitlyn E. Stone argued the
cause for respondents Johnson & Johnson and Johnson
& Johnson Consumer Companies (Faegre Drinker
Biddle & Reath LLP, and John H. Beisner, Jessica D.
Miller, and Geoffrey M. Wyatt (Skadden, Arps, Slate,
Meagher & Flom LLP) of the District of Columbia
bar, admitted pro hac vice, attorneys; Susan M.
Sharko, John H. Beisner, Jessica D. Miller, and
Geoffrey M. Wyatt, on the briefs).
Coughlin Duffy LLP, and Nancy M. Erfle (Gordon
Rees Scully Mansukhani, LLP) of the Oregon bar,
admitted pro hac vice and Michael R. Klatt and Leslie
A. Benitez (Gordon Rees Scully Mansukhani, LLP) of
the Texas bar, admitted pro hac vice, attorneys for
respondent Imerys Talc America (Lorna A. Dotro,
A-0387-16T1
2
Mark K. Silver, Nancy M. Erfle, Michael R. Klatt, and
Leslie A. Benitez, of counsel and on the briefs).
Jared M. Placitella argued the cause for amicus curiae
New Jersey Association for Justice (Cohen, Placitella
& Roth, PC, attorneys; Christopher M. Placitella and
Jared M. Placitella, of counsel and on the briefs).
The opinion of the court was delivered by
ALVAREZ, P.J.A.D.
These matters, scheduled back-to-back, are now consolidated for
decision. Plaintiffs Brandi Carl and Joel Carl, and Diana Balderrama and
Gilbert Balderrama, brought suit against defendants Johnson & Johnson,
Johnson & Johnson Consumer Companies, Inc., Imerys Talc America, and
Personal Care Products Council. 1 The complaints sought damages for personal
injury from Brandi Carl and Diana Balderrama's development of ovarian
cancer, allegedly from their use of Johnson & Johnson's Baby Powder.
Plaintiffs' lawsuits were selected to be the first two to be tried in the "talc -
based body powder products" multi-county litigation in Atlantic County. On
September 2, 2016, the trial court granted defendants' motion to exclude the
opinions of plaintiffs' two principal experts on causation, Daniel Cramer and
Graham Colditz. On that basis, the court then granted defendants' motions for
1
Defendant Personal Care Products Council did not participate in the
litigation after the filing of an answer.
A-0387-16T1
3
summary judgment. The matters were stayed pending the Court's decision in
In re: Accutane, 234 N.J. 340 (2018). 2 We now reverse.
The trial judge barred plaintiffs' expert opinions after an N.J.R.E. 104
hearing conducted pursuant to Kemp ex. rel. Wright v. State, 174 N.J. 412, 427
(2002). He considered testimony from all the experts, including defendants',
as well as extensive submissions by the parties. The judge found fault with
"the narrowness and shallowness of [plaintiffs' experts'] scientific inquiries
and the evidence upon which they rely. Their peers in the scientific
community would not rely upon such limited information." He further found
that "their areas of scientific inquiry, reasoning, and methodology, are slanted
away from objective science and towards advocacy." He did not believe that
their opinions relied upon "'data or information used[] soundly and reliably
generated and one of a type reasonably relied upon by comparable experts,'"
paraphrasing the language of Rubanick v. Witco Chemicals Corp., 125 N.J.
421, 449 (1991). The judge relied upon his own reading of the supporting
material to dismiss the opinions of plaintiffs' principal experts as flawed. In
other words, his conclusions went to the merits of their opinions and his
2
Plaintiffs seek a remand to have the opportunity to present their evidence in
terms of Accutane and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), and present newly available scientific evidence. We do not agree
such a remand is necessary in light of our decision that the judge incorrectly
concluded plaintiffs' experts' methodology was improper.
A-0387-16T1
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disagreement with them, rather than their methodology and the soundness of
their data. In some instances, he relied upon defendants' expert opinions to
explain his disagreement, and mischaracterized it as proof of unsound
methods. Since the judge found the experts' methodology suspect, and
considered them biased, he suppressed their opinions and granted defendants
summary judgment. The judge did not criticize any particular study in the
hearing record, including those on which plaintiffs' experts relied, as flawed or
otherwise unworthy of reliance.
I.
In Accutane, which all agree applies to this appeal, the Court closely
analyzed N.J.R.E. 702 and 703, and our state's application of Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). The Court reiterated that the
trial judge's function is to act as a gatekeeper, not to substitute his or her
judgment for that of "the relevant scientific community." Accutane, 234 N.J.
at 390 (citing Landrigan v. Celotex Corp., 127 N.J. 404, 414 (1992)). The
inquiry is whether the experts adhered to "the same level of intellectual rigor
that characterizes" their field. Id. at 386 (quoting Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999)). A trial judge must "focus on the
expert's principles and methodology—not on the conclusions they generate."
Id. at 384. The critical determination is "'whether comparable experts accept
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the soundness of the methodology, including the reasonableness of relying on
[the] type of underlying data and information.'" Id. at 390 (quoting Rubanick,
125 N.J. at 451). When a trial court in a civil matter excludes an expert
opinion on "unreliability grounds" after conducting "a full Rule 104 hearing,"
a reviewing court "must apply an abuse of discretion standard" to that
determination. Id. at 391.
The judge granted defendants' summary judgment applications
dismissing the complaints, after suppressing plaintiffs' expert opinions. A
grant of summary judgment is reviewed de novo. Cypress Point Condo. Ass'n
v. Adria Towers, LLC, 226 N.J. 403, 415 (2016). We "review the competent
evidential materials submitted by the parties to identify whether there are
genuine issues of material fact and, if not, whether the moving party is entitled
to summary judgment as a matter of law." Bhagat v. Bhagat, 217 N.J. 22, 38
(2014) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995); R. 4:46-2(c)).
We conclude, contrary to the trial judge, that the experts' opinions were
indeed based on sound methodology applied to data upon which experts in
their field may reasonably rely. Therefore, genuine issues of material fact
preclude the grant of summary judgment to defendants. We combine our
discussion of the issues raised by plaintiffs on appeal.
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II.
We begin, as the Court directed in Accutane, with the analytical
structure taken from the Federal Judicial Center's Reference Manual on
Scientific Evidence (Third Ed. 2011) (the Manual). Epidemiology and
epidemiological studies of various types are "used to test whether exposure to
a particular agent causes a harmful effect or disease." Accutane, 234 N.J. at
352-53. The Court explained:
[T]hree basic questions arise in the assessment of a
study's methodological soundness:
1. Do the results of an epidemiologic study
or studies reveal an association between an
agent and disease?
2. Could this association have resulted from
limitations of the study (bias, confounding, or
sampling error), and, if so, from which?
3. Based on the analysis of limitations in
Item 2, above, and on other evidence, how
plausible is a causal interpretation of the
association?
[Id. at 354 (citing to the Manual at 554).]
"Once an association has been found between exposure to a particular
agent and development of a specific disease, researchers then consider whether
that 'reflects a true cause-effect relationship.'" Id. at 354 (citing to the Manual
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at 597). In making that assessment, certain factors, known as the Hill criteria
or Hill factors, guide the determination. Ibid.
Furthermore, the Court clarified that New Jersey courts shall rely upon
the Daubert factors when considering the reliability of the scientific
methodology. Id. at 398-99. Those factors, "pertinent for consideration, but
not dispositive or exhaustive," are:
1) Whether the scientific theory can be, or at any
time has been, tested;
2) Whether the scientific theory has been subjected
to peer review and publication, noting that
publication is one form of peer review but is not
a "sine qua non";
3) Whether there is any known or potential rate of
error and whether there exist any standards for
maintaining or controlling the technique's
operation; and
4) Whether there does exist a general acceptance in
the scientific community about the scientific
theory.
[Id. at 398. Cf. Daubert, 509 U.S. at 593-94 (same list
of four factors, by which U.S. Supreme Court did "not
presume to set out a definitive checklist or test").]
An expert opinion is unreliable unless its proponent can "demonstrate
the soundness of a methodology, both in terms of its approach to reasoning and
to its use of data, from the perspective of others within the relevant scientific
community." Id. at 400.
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The Court cited to In re: Rezulin Products Liability Litigation, 369 F.
Supp. 2d 398, 425 (S.D.N.Y. 2005), for its admonition against expert reliance
on just selective portions of the body of relevant scientific information.
Accutane, 234 N.J. at 400. Rezulin held that Daubert requires experts at least
to consider contrary evidence. Rezulin, 369 F. Supp. 2d at 425. They must
address "obvious alternative explanations" by explaining "information that
otherwise would tend to cast doubt on" their theories, because an opinion that
"does not acknowledge or account for" such evidence is unreliable. Ibid. The
amount of evidence tending to contradict the expert's theory or conclusions
may be large enough that ignoring it amounts to selectivity as opposed to
adherence to the field's intellectual standards. Id. at 425-26 (citing Kumho,
526 U.S. at 152). In sum, the question to be answered is "whether the
scientific community would accept the methodology employed by plaintiffs'
experts and would use the underlying facts and data as did plaintiffs'
experts . . . ." Accutane, 234 N.J. at 400.
III.
We summarize the principles governing epidemiological studies and
their use, and the studies in the hearing record.
The two main kinds of epidemiological studies are cohort studies and
case-control studies. Manual at 556. A prospective cohort study enrolls a
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study population of exposed and unexposed persons and follows it into the
future, while a retrospective cohort study "constructs" a study population as of
some prior date and follows it "over historical time toward the present." Id. at
557. A prospective cohort study can have the advantage of being better able to
establish "the temporal relationship between exposure and disease." Id. at 558.
A case-control study starts with a set of "cases" who have been
diagnosed with the disease, assembles a control group of persons without that
diagnosis, and compares them in light of prior exposure to the agent. Id. at
559. Case-control studies "are particularly useful in the study of rare
diseases," because a cohort study would require "an extremely large group" in
order to contain "a sufficient number of cases for analysis." Id. at 560.
When multiple epidemiological studies have reached different results
about the existence of an association or its magnitude, a pooled analysis or a
meta-analysis may be performed to determine whether their data would yield
meaningful results if analyzed together. Id. at 606-07. Care is needed to
account for heterogeneity—the extent to which differences in study design
contribute to a greater degree of variance among the individual studies' results
than would be expected from chance alone. Id. at 607-08.
The starting proposition of any epidemiological study is that the
association of the agent with the effect in question has occurred by chance,
A-0387-16T1
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without an actual causal relationship. That is called "the null hypothesis." Id.
at 241, 574. The study then proceeds to determine relative risks or odds ratios,
whether they are statistically significant, and the likelihood that the
associations arose by chance if the null hypothesis is true. Id. at 241. A lower
likelihood means a stronger inference that the null hypothesis is not true. Ibid.
As the Manual repeatedly emphasizes, epidemiological studies are
statistical exercises, and no set of statistical results is capable of establishing
that the null hypothesis is actually true or false. "Probabilities govern the
samples, not the models and hypotheses. The significance level tells us what
is likely to happen when the null hypothesis is correct; it does not tell us the
probability that the hypothesis is true." Id. at 252.
The calculated association typically is expressed as a relative risk ratio
in cohort studies and as an odds ratio in case-control studies. Id. at 566-69.
They are substantially equivalent for most purposes. Id. at 625; see also id. at
569 n.61. They are often simply called "the association" between the agent
and the effect. The subtle mathematical differences between them are not
germane here, and none of the experts objected to direct comparisons of
relative risk ratios and odds ratios.
Certain conventions are followed in evaluating the strength of the
inference about causation that a study's results can support. A relative risk or
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odds ratio of 1.0 means that the association is just as likely to arise from
chance regardless of whether the null hypothesis is false or true. Id. at 567-69.
In other words, it establishes the absence of an association in that study. Ibid.
A ratio greater than 1.0 means that an association exists. Ibid.
Another convention is that the study results, whatever they are, must be
"statistically significant." Id. at 573. The typical standard is to calculate for
statistical significance at the 95% level, id. at 245, 251, which all of the studies
and expert analysis in this case applied. Even when the association is greater
than 1.0, it is not statistically significant unless the entire range of the 95%
"confidence interval" for the association, the range of results that would
contain the true association for the study population 95% of the time if the
study were repeated, is greater than 1.0. Id. at 247, 579-81. In addition, the
value of p, the probability that the data showing a relevant match within the
population occurred by chance rather than from an actual association, must be
sufficiently "small," although the Manual cautions that p tends to decrease as
sample size increases regardless of whether the actual association is "legally or
practically important." Id. at 250-53.
All the experts in this case agreed on those conventions, and on the need
for a statistically significant association greater than 1.0 before proceeding to
consider the possibility that the association may justify an inference of
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causation. They also accepted the calculations in the studies submitted and
their authors' representations about the existence or lack of statistical
significance. However, for particular studies, the experts sometimes disagreed
on whether the relative risk or odds ratio needed adjustment to mitigate a
weakness in study design, whether the ratio in a particular study was "strong"
or "weak," and more generally, on how far above 1.0 the association needed to
be in order to support the author's inferences.
The strength of the inference that can be drawn from an epidemiological
study's results is not to be confused with the study's "power." Power is the
likelihood that the study will conclude that the null hypothesis is false when it
actually is false. Id. at 254 n.106, 582. In more practical terms, power is "the
chance that a statistical test will declare an effect when there is an effect to be
declared." Id. at 254. Power reflects both the size of the effect and the size of
the sample. "Discerning subtle differences requires large samples," while
"small samples may fail to detect substantial differences." Ibid.
However, the Manual gives no indication of when a sample size may be
considered "small," let alone too small for any particular purpose. It is
"[c]ommon sense" that the study population needs to be "large enough," and
that enlarging it would allow "a more accurate conclusion and reduce the
chance of random error." Id. at 576. Yet "[t]here is no easy answer" to the
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question of how large the sample size "should" be, because increasing it would
not reduce bias, which is a function of study design. Id. at 246. Furthermore,
"beyond some point, large samples are harder to manage and more vulnerable
to nonsampling error." Ibid.
Accordingly, in evaluating bias, a study's design must be considered, not
just its size. Id. at 583. Selection bias, recall and other information bias, and
classification bias can exist in both case-control and cohort studies. See id. at
584-90. "Most epidemiologic studies have some degree of bias that may affect
the outcome." Id. at 583. While the bias "can be difficult, if not impossible,"
to identify, ibid., the strength or consistency of the association "may suggest
that a bias, if present, had only limited effect." Id. at 585.
Similarly, both cohort and case-control studies can have confounders,
which are events or traits that may cause or contribute to the effect in question
independently of the agent being investigated, or conversely, in some
correlation with the agent. Id. at 590-91. The influence of confounders can be
mitigated, or at least estimated, by a statistical sensitivity or multivariate
analysis of the study data and results. Id. at 591-97. One such technique is
stratification, the creation of subgroups by specified criteria such as age or
extent of exposure to the confounder. Id. at 596-97, 628.
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Both sides agreed that, in evaluating an epidemiological study and its
results, a statistically significant association even after adjustment for bias and
confounders is just the starting point. Accurate rejection of the null hypothesis
does not automatically establish any particular alternative hypothesis. Id. at
257. The experts here, and the court, relied on the seminal and still highly
influential factors that Sir Austin Bradford Hill proffered on just how an
epidemiological study should be evaluated before its reported statistically
significant association between exposure to an agent and a disease may be
considered support for an inference of a causal relationship. 3
Hill observed that, for purposes of preventive medicine, "the decisive
question" is whether a change in an environmental factor will alter the
frequency with which the undesirable event in question occurs. Hill at 295. In
other words, a causal relationship must exist, but the extent to which the
relationship's mechanism should also be demonstrated before recommending
action "will depend upon circumstances." Ibid.
3
These factors appear in the transcription of Hill's address to the Royal
Society of Medicine's Section on Occupational Medicine. Austin Bradford
Hill, The Environment and Disease: Association or Causation? President's
Address, 58 Proceedings of the Royal Society of Medicine 295 (1965),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1898525/pdf/procrsmed00196
-0010.pdf. It is cited here simply as Hill. The Manual recognized Hill's
factors and proceeded to a substantially similar discussion of how to evaluate
an epidemiological study as support for inferring causation. Manual at 598-
603. However, the experts and the court cited only to Hill.
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Hill named nine factors to consider in evaluating an epidemiological
study for whether it supports an inference of causation. Id. at 295-99. He
emphasized that not all of them are required in every instance, and that no
single factor is mandatory in all instances. Id. at 299. The first factor was the
strength of the association, which needed to be considered in light of all the
possible causes of the undesirable event. Id. at 295-96. A strong association
may be an appropriate threshold when confounders readily come to mind, but
Hill cautioned that confounders should be "easily detectable" before they are
used to preclude an inference of causation about the agent in question. Id. at
296. Indeed, he admonished that "[w]e must not be too ready to dismiss a
cause-and-effect hypothesis merely on the grounds that the observed
association appears to be slight," especially when the event is relatively rare.
Ibid.
Hill's second factor was consistency of results, with similar results that
were "reached in quite different ways, e.g. prospectively and retrospectively,"
being the most notable. Id. at 296-97. The third was specificity, which again
can be impressive, but cannot be mandated, because "diseases may have more
than one cause," or because an agent might be a cause of several diseases. Id.
at 297. The fourth, a temporal relationship of exposure to the agent preceding
the disease, may pose a question for "diseases of slow development" that might
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somehow cause the behavior or exposure that was initially suspected of
causing the disease. Id. at 297-98. The fifth, a biological gradient, also called
a dose response, can be weighty, although it can only be assessed when it is
possible to "secure some satisfactory quantitative measure of" the relevant
exposure. Id. at 298.
Hill called his sixth factor, biological plausibility, "a feature I am
convinced we cannot demand" because it "depends upon the biological
knowledge of the day." Ibid. "[T]he association we observe may be one new
to science or medicine and we must not dismiss it too light-heartedly as just
too odd." Ibid. However, Hill's seventh factor, coherence, serves in effect as a
back-stop on not demanding a biologically plausible mechanism of causation,
because it holds that "the cause-and-effect interpretation of our data should not
seriously conflict with the generally known facts of the natural history and
biology of the disease." Ibid.
Hill believed that his eighth factor, a demonstrated beneficial effect from
taking preventive action against the agent in question, might give the most
support for an inference of causation, although he noted that such evidence
was only "occasionally" available. Id. at 298-99. His ninth and final factor,
analogy to the known causal relationship between another agent and disease,
would sometimes justify taking preventive action on "slighter but similar
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evidence" that the agent in question is analogous in kind and that the disease in
question is analogous in severity. Id. at 299.
Hill urged his audience, officials responsible for public and occupational
health, to take or decline preventive action only after considering the harm to
be avoided, and also considering the possible "injustice" of the costs or
intrusions that would be imposed from prohibiting exposure to an agent that
did not in fact cause the disease. Id. at 300. The evidence needed to justify
such action could be "relatively slight" or "very strong." Ibid. However, he
ended with an admonition never to require absolute certainty before acting:
All scientific work is incomplete - whether it be
observational or experimental. All scientific work is
liable to be upset or modified by advancing
knowledge. That does not confer upon us a freedom
to ignore the knowledge we already have, or to
postpone the action that it appears to demand at a
given time.
[Ibid.]
All the above addresses general causation. Plaintiffs and their experts
accepted that epidemiological studies cannot serve as the sole evidence of
"specific causation," the proof that a particular plaintiff's disease developed
because of the nature and extent of her exposure to the agent in question.
However, the Manual, at 608-18, recognizes that epidemiological studies that
support general causation may serve to support a plaintiff's burden of
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proffering sufficient evidence of specific causation to reach a jury, if due
regard is given to the plaintiff's degree of similarity to the study populations in
exposure, development of the disease, and other relevant factors.
In 2010, the World Health Organization's International Agency for
Research on Cancer (IARC) published volume 93 of IARC Monographs on the
Evaluation of Carcinogenic Risks to Humans, which addressed carbon black,
titanium dioxide, and talc. It concluded that there was "limited evidence" that
perineal4 talc use could cause ovarian cancer. It noted that "many" case-
control studies found a "modest, but unusually consistent, excess in risk,"
although evidence for dose response was inconsistent, the "impact of bias and
potential confounding could not be ruled out," and "the one cohort study" did
not support an association. Other reservations were the variety in the studies'
definitions of exposure, and the possibility that some of the talc may have
contained independently carcinogenic material, like asbestos.
On April 1, 2014, the Food and Drug Administration (FDA) issued a
letter in which it denied two petitions to require a warning on consumer talc
products that frequent perineal use increases the risk of ovarian cancer. The
petitions asserted that talc may contain asbestos, that talc is itself a carcinogen,
4
The expert witnesses treated perineal use and genital use interchangeably.
Any unspecified reference to talc use in the record, including the documentary
evidence, refers to such use.
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and that epidemiological studies established a causal relationship between
genital talc use and ovarian cancer.
The letter stated that the FDA had the authority to propose a regulation
with such a warning if a petition for it "is supported by [an] adequate scientific
basis on reasonable grounds." However, after reviewing the petitions,
responsive comments, and "additional scientific information," the FDA found
an absence of evidence that currently marketed talc products might contain
asbestos, and a paucity of evidence that talc itself is carcinogenic. The FDA
further found that the epidemiological studies the petitioners cited were
inconsistent with the ones it located in its own literature searches. It also
found study design flaws, which were the failure to confirm that the talc was
free of asbestos, and the failure of any one study to address all known
confounders including selection and other biases.
The FDA further noted the absence of a "cogent biological mechanism
by which talc might lead to ovarian cancer," in light of cases of ovarian cancer
that occurred even with no talc exposure, and the lack of evidence for the
"incessant ovulation" and "gonadatropin" hypotheses. It acknowledged that
the potential of particles like talc "to migrate from the perineum and vagina to
the peritoneal cavity is indisputable," which made it "plausible" that perineal
talc could migrate to the ovaries and "elicit a foreign body type reaction and
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inflammatory responses that . . . may progress to epithelial cancers." The "best
evidence for an association or causal relationship" was the epidemiological
studies reporting such results, and "the growing body of evidence to support a
possible association between genital talc exposure and serous ovarian cancer is
difficult to dismiss." Nonetheless, the absence of "conclusive evidence of a
causal association" between perineal talc use and ovarian cancer meant that the
evidence was insufficient for the FDA "to require as definitive a warning as
you are seeking."
As of August 8, 2016, the version for healthcare professionals of the
"PDQ" summary titled "Ovarian, Fallopian Tube, and Primary Peritoneal
Cancer Prevention," at the website of the National Cancer Institute (NCI)
provided an overview of those cancers and possible risk factors. It cited many
studies, including some of those in the next part of this opinion. It stated
estimates for 2016 of 22,280 new diagnosed cases of ovarian cancer and
14,240 deaths from the disease. As of 2012, the "population lifetime risks"
were 1.3% for developing the disease and 0.97% for dying from it. Both
figures reflected small but statistically significant decreases during the
preceding ten to twenty-five years.
The NCI website focused on epithelial ovarian cancer because it is the
most common type. Epithelial cancer comprises the histological subtypes of
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serous, mucinous, endometrioid, and clear cell. Those subtypes are
"heterogeneous," which suggested that they might arise by "different
molecular pathways." Overall, ovarian cancer "is a rare cancer," so if the
association of a risk factor with a particular subtype is "moderate," the ability
of epidemiological studies to detect it may be "limited" due to sample size and
statistical power.
The website characterized risk factors for ovarian cancer as having
"adequate evidence" or "inadequate evidence" of an association with an
increased or decreased risk of the disease. The evidence was adequate for an
increase in risk from obesity and for hormone or hormone replacement
therapy, and for a decrease in risk from oral contraceptives, injectable
contraceptives, tubal ligation, and breast-feeding. Inconsistent study results
meant that evidence was inadequate for a decrease in risk from aspirin and
nonsteroidal anti-inflammatory drugs (NSAIDs), as well as for an increase in
risk from smoking or perineal talc exposure.
On January 4, 2019, after these appeals were filed, that section of the
NCI website was updated. https://www.cancer.gov/types/ovarian/hp/ovarian-
prevention-pdq. Although there were several minor changes, the conclusions
and the characterizations of the state of the evidence remained the same. The
only change germane to this case was the discussion of a May 2016 case-
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control study, which was in the record below but not cited by any expert or the
court. Ibid. That study, by Joellen Schildkraut and others, Association
between Baby Powder Use and Ovarian Cancer in African Americans, 25:10
Cancer Epidem., Biomarkers & Prevention 1411, 1414-15 (2016), comprised
584 cases and 745 controls and found a statistically significant association
between genital powder use and the risk of epithelial ovarian cancer. It also
found a dose response when study subjects who had ever used talc genitally
were compared to subjects who never used it in any manner ("ever user" or
"ever use" versus "never user" or "never use"), as well as for daily genital use
versus less frequent use. Ibid. The authors considered the results consistent
with the causation theory of talc-induced "localized chronic inflammation in
the ovary." Id. at 1416. Notwithstanding the addition of that study, all of that
section of the NCI website's conclusions and characterizations of the state of
the evidence remained the same.
The judge asked the parties to submit the relevant scientific studies and
articles cited in their experts' reports or that their experts' testimony would
reference. All of the cited studies and articles were published, and neither the
court nor any of the experts questioned the merits of their pre-publication
selection or review. The relevant ones are summarized here. The court did not
criticize any of the studies for having an unsound methodology, for misstating
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23
results, or for failing to consider bias and confounding influences, and it
accordingly did not find that the relevant scientific community would consider
them unsusceptible of appropriate reliance.
In 1982, Cramer and coauthors published Ovarian Cancer and Talc, 50:2
Cancer 372 (1982), which purported to be the first epidemiological study of
talc and ovarian cancer. 5 It was a hospital-based case-control study. The
controls were matched to the cases by residence, race, and age. The controls
also had to confirm that they still had at least one ovary. The only
classification of talc use was "regular," with no indication of duration or
frequency.
For cases who used talc on both the perineum and on sanitary napkins
compared to never users, the relative risk was 3.28, and it was statistically
significant. For all cases, meaning those who used talc in both of those ways
or just one, the relative risk compared to never users was 1.92 and still
statistically significant. For cases who used talc in only one of those ways, the
relative risk of 1.55 was of "borderline" statistical significance. Menstrual
history was too homogenous to be a confounder, and adjustments for
5
Most subsequent references herein to a particular study will be by the lead
author's name and the date, for example, "Cramer's 1982 study," or "Cramer
1982" in a parenthetical.
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24
hysterectomy, tubal ligation, parity, 6 and oral contraceptive use did not change
the significance of the results.
The authors stated that the link of talc to ovarian cancer was predicated
on an analogy to the role of asbestos in mesothelioma, and thus required talc to
be able to migrate to "the pelvic cavity," which had been implied by findings
of talc particles "embedded in normal and abnormal ovaries." They
hypothesized that talc on the ovarian surface could enter an ovary during the
foreign body entrapment of ovarian surface epithelium in the inclusion cysts
that can form after ovulation, which is the eruption of an ovum through its
follicle for travel via the fallopian tube from inside the ovary to the uterus.
Alternatively, talc on the ovarian surface might stimulate the entrapment of
surface epithelium even between ovulations. The authors concluded that, due
to "the histologic and clinical diversity of ovarian cancer, talc exposure is
unlikely to be the only cause," and the interaction of perineal talc exposure
with other aspects of reproductive tract function merited further study.
In 1989, Bernard Harlow and Noel Weiss published A Case-Control
Study of Borderline Ovarian Tumors, The Influence of Perineal Exposure to
Talc, 130:2 Am. J. Epidem. 390 (1989). It was a population-based case-
6
"Parity" means having had a viable pregnancy, even if it did not result in a
live birth. Not having had such pregnancies is called null parity or nulliparity.
A-0387-16T1
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control study prompted by the "marked differences" in age and survival rates
between patients whose epithelial ovarian tumors were borderline and those
whose tumors were malignant. 7 The authors looked for differences in how the
tumors developed, including the possible influence of perineal talc exposure.
The only statistically significant association was with the use of "deodorizing
powder," which was different from "baby powder" because the labels named
"deodorizing substances and a variety of other free and bonded silicas" other
than talc that were "potentially high in absestiform fibers." The authors were
cautious about the implications for talc itself.
In 1997, Stella Chang and Harvey Risch published Perineal Talc
Exposure and Risk of Ovarian Carcinoma, 79:12 Cancer 2396 (1997). It was a
population-based case-control study in metropolitan Toronto, with 450 cases
of borderline or invasive ovarian cancers and 564 controls. Controls were
matched with cases by age group, and the analysis also considered as
confounders the risk factors of oral contraceptive use, parity, breastfeeding,
tubal ligation or hysterectomy, and family history of ovarian or breast cancer,
which varied between the cases and controls as anticipated. The study found
an "elevated" risk for both borderline and invasive ovarian cancer, but it was
7
Borderline tumors are also called low-grade because they have low potential
to become invasive and thus malignant.
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26
statistically significant only for invasive cancer, and there was a marginally
significant association with the duration of talc use, but not with frequency.
That study discussed two biological mechanisms, which had been
postulated but not yet demonstrated, in which talc that migrated to the ovary
could be a cause of ovarian cancer. One was talc's entrapment by inclusion
cysts of ovarian epithelium during ovulation, while the other was talc's
stimulation of entrapment of the surface epithelium, a phenomenon that had
already been shown to be caused by "incessant ovulation." The authors
observed that those mechanisms would be consistent with the author's own
results, as well as with the results published in 1961 and 1971 by G.E. Egli and
M. Newton in Transport of Carbon Particles in the Human Female
Reproductive Tract, 12 Fertility & Sterility 151 (1961), and by W.J. Henderson
and coauthors in 1971 in Talc and Carcinoma of the Ovary and Cervix, 78 J.
Obstets. & Gyn. Br. Commw. 266 (1971), about finding talc particles in
approximately seventy-five percent of examined ovarian tumors, and the
results published in 1961 about the ability of nonmotile and inert carbon
particles deposited in the vagina to migrate to the fallopian tubes.
In 1999, Cramer and coauthors published their population-based case-
control study, Genital Talc Exposure and Risk of Ovarian Cancer, 81 Int'l J.
Cancer 351 (1999). They noted the study subjects' age at first talc use and
A-0387-16T1
27
their frequency and total years of use. The tumor subtypes of the cases were
identified as serous, mucinous, endometrioid, clear cell, and other. They
adjusted the results for age, parity, oral contraceptive use, obesity, family
history of breast or ovarian cancer, tubal ligation, and the study location,
which was eastern Massachusetts and New Hampshire. They found a
statistically significant association of epithelial ovarian cancer with perineal
talc exposure, whether by direct application or by transfer from talc applied to
underwear or sanitary napkins. The association was most pronounced for
invasive serous cancer and least pronounced for mucinous cancer. That study
found a statistically significant dose-response trend when both cases and
controls were considered together, but not when cases alone were considered.
The study noted the difficulty of quantifying the amount of talc used in one
application, and of correlating use to the times when the reproductive tract was
open or closed.
The study further stated that the statistically significant association of
talc use with ovarian cancer was consistent with the results of four other recent
case-control studies, including Chang's. The nature of the results of that study
and those other four, including the variation according to tumor histologi cal
subtype, suggested little confounding from recall bias, or from age, parity, or
oral contraceptive use. It concluded that foreign body entrapment of talc
A-0387-16T1
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"appears able to induce histologic changes that are similar to those of asbestos,
at least in the lungs," and that it was accordingly a plausible, although
unestablished, mechanism of causation.
In 1999, Roberta Ness published a literature study, Possible Role of
Ovarian Epithelial Inflammation in Ovarian Cancer, 91:17 J. Nat'l Cancer
Inst., 1459 (1999). It was prompted by the observation that the hypotheses of
causation by "excess" ovulation or by excessive gonadotropin and estrogen
seemed to be incomplete explanations. Other studies suggested an association
with epithelial inflammation, which could be caused by exposure to asbestos
or talc, by endometriosis, or by pelvic inflammatory disease. Ness considered
only epithelial tumors because they represented approximately ninety percent
of all cases, and she did not distinguish between invasive and noninvasive
tumors because they had similar risk factors.
The twelve epidemiologic studies of talc and ovarian cancer that she
reviewed mostly found a significant association of perineal talc use with
ovarian cancer, although some of them also found a dose response while others
did not. She concluded that the consistent result of an association "in a series
of well-conducted studies of varying design suggests" that talc use could
"enhance" epithelial inflammation and thus promote cancer. However, Ness
did not find any studies about the use of NSAIDs and ovarian cancer that
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29
showed a statistically significant protective effect, or the lack of one, from
their presumed anti-inflammatory effects. She concluded that much more
study was needed to determine whether inflammation was a "central" element
in ovarian cancer.
In 2000, Ness and coauthors published Factors Related to Inflammation
of the Ovarian Epithelium and Risk of Ovarian Cancer, 11:2 Epidem. 111
(2000), a hospital-based case-control study of women diagnosed between 1994
and 1998 with borderline or invasive epithelial ovarian tumors. They found
associations between ovarian cancer and several causes of inflammation,
including talc use, as well as protective effects from agents like oral
contraceptives that reduce inflammation. The association with talc use was
statistically significant for all manner of direct use on the body, although when
use on "genital/rectal and feet" was stratified by duration, the associations had
somewhat weaker confidence intervals, and the association became statistically
insignificant for one of the duration periods, namely, the period of five to nine
years of such use.
Also in 2000, Dorota Gertig and coauthors published Prospective Study
of Talc Use and Ovarian Cancer, 92:3 J. Nat'l Cancer Inst. 249 (2000). It used
data from the Nurses' Health Study (NHS), a cohort study that was begun in
1976 with the enrollment of 121,700 female registered nurses in the United
A-0387-16T1
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States aged thirty to thirty-five years. In 1982, the subjects were asked to
report whether they had ever used talc, whether they used it daily or weekly,
and whether they used it perineally. A study cohort of 78,630 women was
formed. Other factors, asked biennially, were oral contraceptive use, tubal
ligation, and parity; family history of ovarian cancer was not asked until 1992.
Additional questions addressed breastfeeding, age at menarche and
menopause, and obesity.
From 1982 through June 1996, 307 cases of epithelial ovarian cancer
were diagnosed in the study cohort. That study found a statistically significant
association of 1.4, which it called a "modest elevation in risk," for ever users
of talc and serous invasive ovarian cancer, but not for any other subtype of
ovarian cancer. It further noted that the results "provide little support for any
substantial association between perineal talc use and ovarian cancer risk." The
study stated that tubal ligation did not affect the relative risk, which argued
against the hypothesis that migration of talc through the fallopian tubes played
a role in ovarian cancer, although it noted that the number of cases who had
had tubal ligation was small.
The authors asserted that theirs was the first prospective study of talc use
and ovarian cancer, and that being a prospective study eliminated recall bias
and reduced selection bias. Conversely, they admitted the handicap of not
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knowing the study cohort's ages at first talc use or their duration of talc use,
which may have been a reason for the absence of a dose response. In addition,
the "relatively short follow-up period may be inadequate to detect an
association if the latency for development of ovarian cancer is more than 15
years."
In 2003, Michael Huncharek and coauthors published Perineal
Application of Cosmetic Talc and Risk of Invasive Epithelial Ovarian Cancer:
A Meta-analysis of 11,933 Subjects from Sixteen Observational Studies , 23
Anticancer Research 1995 (2003). It was a meta-analysis of sixteen
observational studies about the association between ever perineal talc use and
invasive epithelial ovarian cancer. The result was a statistically significant
relative risk of 1.33.
However, the lack of a "clear" dose response prompted the authors to
observe that the hospital-based studies showed a lower relative risk of 1.19
that was not statistically significant, while the population-based studies
showed a higher relative risk of 1.38 that was statistically significant. They
found that the difference suggested that the nominally stronger asso ciation for
the latter reflected selection bias or uncontrolled confounding rather than a
true risk.
A-0387-16T1
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In 2004, Paul Mills and coauthors published Perineal Talc Exposure and
Epithelial Ovarian Cancer Risk in the Central Valley of California, 12 Int'l J.
Cancer 458 (2004), a population-based case-control study of epithelial ovarian
cancer that included questions about the frequency, duration, and particular
years of perineal talc use. The odds ratio for ever users versus never users was
1.37 and statistically significant, but there was no dose response. The results
differed by histological subtype, as in Gertig's study, and the highest odds
ratio, 1.77 was for serous invasive tumors. The authors described the
inflammation hypothesis as positing that inflammation produces oxidants that
damage DNA, specifically the tumor suppressor genes, and that inflammation
also reduces cytokine production with the possible result of altering cell
growth and inhibiting apoptosis, which is the genetically regulated process by
which a normal cell recognizes that it is damaged or senescent and proceeds to
destroy itself. However, they noted the paucity of evidence to support the
hypothesis as a cause of ovarian cancer.
In 2007, Cramer, John Godleski, and coauthors published Presence of
Talc in Pelvic Lymph Nodes of a Woman With Ovarian Cancer and Long -
Term Genital Exposure to Cosmetic Talc, 110:2:2 Obstets. & Gyn. 498 (2007),
a case study of tissue samples, including lymph node samples, from a sixty -
eight-year-old woman with serous ovarian cancer who had reported thirty
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33
years of daily perineal talc use. Contamination from the study itself was ruled
out as a source because the talc was found within macrophages in the tissue
sample.
The authors stated that talc found in the lymph nodes supported new
ways to think of talc's possible role in causing ovarian cancer. One would be
inducement of an inflammatory reaction from deposition on the ovary.
Another would be that chronic inflammation caused by talc in other parts of
the reproductive tract, not just the ovaries, could cause a systemic decrease in
the immune system's production of the antibodies to the MUC-1 protein whose
overexpression is a feature of ovarian cancer.
Also in 2007, Amber Buz'Zard and Benjamin Lau published Pycogenol
Reduces Talc-Induced Neoplastic Transformation in Human Ovarian Cell
Cultures, 21 Phytotherapy Research 579 (2007), about their in vitro testing of
a proprietary preparation of bioflavonoid derivatives of pine bark on ovarian
tissue. They tested it on normal ovarian cells and nonepithelial ovarian tumor
cells, as well as on polymorphonuclear neutrophils, a kind of immune system
cell. They found that treating the cells just with talc increased the proliferation
of precancerous cells, induced cellular transformations, and increased the
generation of reactive oxygen species. All of those effects increased with
length of exposure and dosage. However, when treatment of the cells with
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34
their test preparation of the bioflavonoid derivatives preceded treatment of the
cells with talc, their preparation "inhibited" the increase in cell proliferation,
"decreased the number of transformed colonies," and decreased the generation
of reactive oxygen species. 8 They concluded that the results "suggest that talc
may contribute to ovarian neoplastic transformation."
In 2008, Hilde Langseth and coauthors published Perineal Use of Talc
and Risk of Ovarian Cancer, 62 J. Epidem. & Cmty. Health 358 (2008), a
pooled analysis of twenty case-control studies and one cohort study. They
found that the fourteen population-based case-control studies showed an
association of perineal talc use with ovarian cancer, of which ten were
statistically significant, while the six hospital-based case-control studies
showed associations that were not statistically significant. The cohort study
showed no association. The cohort study and three of the four case -control
studies that reported results by subtype gave "hints of higher risks of serous
tumours related to talc exposure." While there was an overall association of
talc use with ovarian cancer, the absence of an association in the cohort study
and the absence of a "clear" dose response meant that the evidence to date was
insufficient to "establish a causal association." However, the authors noted
8
As related in the next part of this opinion, Cramer's report, and Omiecinski's
report and testimony, explained the relevance of reactive oxygen species.
A-0387-16T1
35
that the absence of a dose response could reflect "the crudeness of the
exposure metric used," and they recommended additional studies with refined
metrics, as well as better differentiation between talc products that contain
asbestos and those that do not.
In 2009, Margaret Gates and coauthors published Risk Factors for
Epithelial Ovarian Cancer by Histologic Subtype, 2010:171:1 Am. J. Epidem.
45 (2009), another prospective cohort study that relied on the NHS data. For a
number of risk factors, they found that the factor's association with ovarian
cancer varied according to whether the cancer's histological subtype was
serous invasive, endometrioid, or mucinous, which may reflect the evidence
that each subtype resembles a different kind of nondiseased tissue, or
differences between the study populations in the distribution of cancer
subtypes among the cases. In any event, talc use did not have a statistically
significant association with any subtype.
In 2013, Kathryn Terry and coauthors published Genital Powder Use and
Risk of Ovarian Cancer: A Pooled Analysis of 8,525 Cases and 9,859
Controls, 6:8 Cancer Prev. Research 811 (2013). Their analysis pooled the
data from eight previous population-based case-control studies to estimate the
association between lifetime talc exposure and ovarian cancer by histological
subtype. There were 8525 cases of ovarian, fallopian, or peritoneal cancer and
A-0387-16T1
36
9859 controls. Harmonization was needed for the data on the frequency and
duration of genital talc use, but not for the data on the other potential risk
factors or confounders, which included oral contraceptive use, parity, tubal
ligation, obesity, age, race, and ethnicity.
The association of talc use with ovarian cancer was "stronger" for
women who were obese than for those who were not, whereas there was no
"significant" difference in the association for women who differed in parity or
menopausal status, or in having endometriosis, tubal ligation, or a
hysterectomy. There were likewise no differences in the association for
women who started using talc after 1951, after 1961, or after 1971, although
the association was somewhat lower but still statistically significant for those
who started using talc earlier.
The study related that the histological subtypes of ovarian cancer were
serous, endometrioid, mucinous, and clear cell; that tumors could be borderline
or invasive; and that the most common subtype was serous invasive. Past
studies showed that serous invasive had the strongest association with talc use.
The authors noted that the only subtypes not showing a statistically significant
association were mucinous borderline and mucinous invasive, which could
have reflected either the relatively small number of tumors of those subtypes
or some biological reason involving their molecular characteristics.
A-0387-16T1
37
The study further reported that most of the increased risk appeared just
from comparing "ever regular use to never use." The absence of a correlation
between an increase in talc use and an increase in risk implied the absence of a
dose response, which is considered an indicator of biologic plausibility.
However, the lack of consistent evidence for dose response could also reflect
"the difficulty inherent in accurate recollection of specific details of frequency
and duration of genital-powder use," the different amounts of talc and other
ingredients in various product formulations, or the possibility that "a modest
exposure may be sufficient to increase cancer risk." Overall, the authors
concluded that "genital powder use" was associated with a "small-to-moderate
increase in risk of most histological subtypes of epithelial ovarian cancer."
In 2014, Serena Houghton and coauthors published Perineal Powder Use
and Risk of Ovarian Cancer, 106:9 J. Nat'l Cancer Inst. dju2089 (2014), a
prospective cohort study that used data from the Women's Health Initiative
cohort study (WHI). No statistically significant association was seen for ever
use versus never use, or for increasing duration of use, even when stratified by
age or tubal ligation status. However, the study had data only on the duration
of use, not on frequency.
9
This journal uses codes like "dju" and "djt" to locate articles, as the
pagination of each article in this journal starts at 1.
A-0387-16T1
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Also in 2014, Britton Trabert, Ness, and coauthors published Aspirin,
Nonaspirin Nonsteroidal Anti-inflammatory Drug, and Acetaminophen Use
and Risk of Invasive Epithelial Ovarian Cancer: A Pooled Analysis in the
Ovarian Cancer Association, 106:2 J. Nat'l Cancer Inst. djt431 (2014), a meta-
analysis of population-based case-control studies. They concluded that aspirin
had a statistically significant inverse relationship with invasive epithelial
ovarian cancer, but that other NSAIDs and acetaminophen did not. The results
were substantially similar for high-grade ovarian tumors of all histological
subtypes, and also for borderline serous tumors. They considered their results
to be general rather than specific support for the hypothesis that inflammation
played a role in ovarian cancer, because "[t]he pharmacological effects of
NSAIDs that lead to reduced risks of cancer or improve cancer prognosis are
not well understood and may differ by cancer site."
Later in 2014, Trabert and coauthors (not including Ness) published Pre-
diagnostic Serum Levels of Inflammation Markers and Risk of Ovarian Cance r
in the Prostate, Lung, Colorectal and Ovarian Cancer (PLCO) Screening Trial ,
135:2 Gynec. Oncol. 297 (2014). It was a prospective case-control study that
took advantage of the collection of blood samples from participants in a
screening trial for those four kinds of cancer to look for an association between
the level of numerous chemical markers of inflammation and a subsequent
A-0387-16T1
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increased risk of ovarian cancer. The authors discussed human and animal
studies that provided evidence of how both inflammation connected to
ovulation and other inflammatory processes may play a role in ovarian cancer,
including the possibility that some ovarian cancers, notably the subtype of
serous invasive, could arise from inflammation of the fallopian tubes or of
endometriotic lesions as well as of the ovaries themselves.
After statistical analysis to correct for the influence of obesity, parity,
hormone therapy, oral contraceptive use, aspirin or ibuprofen use, and family
history of ovarian or breast cancer, the authors reported evidence of an
association with ovarian cancer that was statistically significant for two
markers and equivocal for several others. They saw the study as having
limited power to detect associations for most subtypes of ovarian cancer, but
as yielding "compelling" evidence of an association between several
inflammation markers and serous ovarian cancer. Some of the inflammation
markers were associated with other cancers, so they noted the need for
additional research to identify particular markers with particular cancers, and
to correlate the level of such markers in the blood with their level at the sites
where inflammation could lead to ovarian cancer.
The record contains the abstract of Does Talc Exposure Cause Ovarian
Cancer?, 25 Int'l J. Gyn. Cancer 51 (2015), which Ness published in 2015.
A-0387-16T1
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The abstract called the underlying study a "formal systematic analysis of talc
use and ovarian cancer," based on numerous case-control and cohort
epidemiological studies, meta-analyses, and "basic science studies," which
were "reviewed and graded for quality." Ness conducted analyses on the data
in the aggregate and also by histological subtype, in line with the Hill factors.
She concluded that those studies "suggest that talc use causes ovarian cancer,"
because "almost all [of the] well-designed studies" showed that talc use
increased the risk of ovarian cancer by thirty to eighty percent, which she
distilled to an "attributable risk" of twenty-nine percent. The association was
"more specific" for serous ovarian cancer. She noted that the studies that
addressed dose response found it to exist for both duration and frequency of
exposure.
The abstract stated that systematic bias could be "excluded" because the
nature of the studies minimized recall and selection bias, and because they
conducted multiple assessments of other risk factors for ovarian cancer. It
declared inflammation to be "a plausible biological mechanism" because it was
"known to cause other epithelial cancers."
In 2016, Cramer and coauthors published The Association Between Talc
Use and Ovarian Cancer, A Retrospective Case-Control Study in Two US
States, 27:3 Epidem. 334 (2016), about the population-based case-control
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study mentioned above of 2041 cases and 2100 controls in eastern
Massachusetts and New Hampshire. 10 That study had three consecutive five-
year enrollment periods between 1992 and 2008, and this study purported to be
the first to address the data from all three periods. The 1999 Cramer study had
addressed only data from the first period, while the 2008 Gates study
combined data from the second period with NHS data, and the 2013 Terry
study combined data from the third period with data from several other studies.
The authors noted that the subjects reported age at first use, years of use,
uses per month, and whether the application was perineal, on another body
area, or on an item that touched the body. Only perineal use, either alone or
with additional forms of use, had an odds ratio greater than 1.0 for epithelial
ovarian cancer, and it was statistically significant. For those users, the overall
results were the statistically significant odds ratio of 1.33, with a trend of
increasing risk for increased frequency of talc use, but not for increased
duration. For cases with more than twenty-four years of perineal use, the
association was stronger for the histological subtypes of borderline serous,
borderline mucinous, invasive serous, and invasive endometrioid.
10
The record contains the 2015 prepublication version. The published version,
which is no different, is available at https://www.researchgate.net/publication/
5512175_Perineal_use_of_talc_and_risk_of_ovarian_cancer. The 2015 version
is the one that Cramer cited in his expert report.
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While the genital talc users were more likely to be older, heavier,
asthmatic, and regular users of analgesics, sensitivity analysis by logistic
regression and other methods showed that none of those factors was a
confounder. The authors applied what they called the convention of regarding
a factor to be a confounder only if adjusting for it changes the odds ratio by ten
percent in either direction.
The authors called their results consistent with the 2013 Terry pooled
analysis. They addressed the possibility of recall bias by applying a sensitivity
analysis. In the absence of external records to verify the study subjects'
reported use or nonuse of talc, which they would have used to perform that
analysis, they used a surrogate analysis, namely, the sensitivity analysis of
alcohol use in the NHS evaluation of alcohol use and breast cancer, in which
retrospective recall could be compared to verifiable prospective data. The rate
of accurate recall was found to have been ninety-one percent, meaning a nine
percent misclassification rate. The authors noted that twice as much
misclassification of talc use, or a rate of eighteen percent, would have been
required for their observed odds ratio to lose statistical significance. They
then discussed several reasons that made their odds ratio less likely than that to
result from recall bias. Those reasons were the greater likelihood of accurate
recall of ever using talc as opposed to remembering the specific degree of use,
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and the tendency of recent studies to show lower odds ratios than older studies
did, notwithstanding the increase over time in publicity about the possible
association of talc with ovarian cancer.
The authors of that 2016 study found that the dose response was "more
apparent" for cases who were premenopausal or who were "heavier or
postmenopausal users" of hormone-replacement therapy when diagnosed.
Other factors in premenopausal women, including weight, breastfeeding, and
alcohol use, may also have been "effect modifiers" rather than just
confounders because they tended to alter estrogen levels, which "may have
multiple effects on immune cells," such as causing macrophages to scavenge
particulates like talc that they would otherwise disregard. Those women
comprised the categories that showed more of a dose response, so the
possibility that those factors had multiple effects that might make the immune
system overly responsive to talc, combined with the documented ability of talc
to migrate to the upper reproductive tract, suggested that "a framework"
existed for positing a mechanism "involving chronic inflammation" by which
talc at least promoted ovarian cancer.
The authors acknowledged the novelty of finding no association between
ovarian cancer and perineal talc use by postmenopausal women who were not
receiving hormone replacement therapy. However, the WHI study, which
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enrolled only postmenopausal women, concluded that hormone replacement
therapy was just a confounder, not an effect modifier. The authors of that
study did not see the WHI study as disproving the possibility that altered
estrogen levels could be an event modifier in premenopausal women, so they
did not see it as discrediting their suggestion that the combined agency of
altered estrogen levels and talc use could cause chronic inflammation that
facilitated the development of ovarian cancer.
IV.
We now turn to the discussion of plaintiffs' experts, their reports, and
testimony.
A. Daniel Cramer. At the time of the Rule 104 hearing, Cramer was a
professor of obstetrics, gynecology, and reproductive biology at Harvard
Medical School, as well as a professor of epidemiology at Harvard's T.H. Chan
School of Public Health. He headed a research division of obstetric and
gynecological epidemiology with a particular focus on ovarian cancer. He had
performed epidemiological research for more than thirty years, co-authored
many published scientific articles on environmental and genetic causes of
ovarian cancer, authored several chapters in books on oncology and
epidemiology, and authored or co-authored several publicly presented abstracts
on epidemiological studies of ovarian cancer.
A-0387-16T1
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Cramer's February 1, 2016, expert report on general and specific
causation for Carl cited 101 published studies, including his own earlier
studies. One was a 1996 study by Debra Heller and others that found
cancerous human ovarian and uterine tissue samples to contain "birefringent"
particles that could have been talc. 11 Cramer's own 1982 epidemiological
study, a population-based case-control study, was the first to find a statistically
significant association between perineal talc use and epithelial ovarian cancer.
Cramer cited twenty-five additional published studies through 2014 of talc and
ovarian cancer; all of them found an association, and in twelve of them the risk
was statistically significant.
Cramer also cited two meta-analyses, by Gates in 2008 and Terry in
2013, of previously published data that found a significantly increased risk for
ovarian cancer from talc use. He explained that a meta-analysis was "more
powerful" and provided "a more precise estimate of the association" because
the ninety-five percent confidence interval was narrower for that combined
assessment than in the underlying studies individually.
Cramer was aware of five meta-analyses on talc and ovarian cancer,
including his own from 1999, Huncharek's in 2003, and Langseth's in 2008 in
11
Debra Heller and others, The Relationship Between Perineal Cosmetic Talc
Usage and Ovarian Talc Particle Burden, 174:5 Am. J. Obstets. & Gyn. 1507
(1996).
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connection with an IARC review. He described the studies that each one
incorporated and related that each of those meta-analyses found a statistically
significant association. He also described minor issues in some of the
underlying studies concerning the distinction between perineal use of talc and
other uses, or combined use, before opining that adjusting the odds ratios in
those studies to conform better to a model comparing subjects who were
perineal ever users versus perineal never users would have had little effect on
any of the results.
In addition, Cramer performed a new meta-analysis on the entire body of
data in the studies and meta-analyses that he had related. There was no
significant heterogeneity among them, even though two of the studies were
cohort studies while the others were case-control studies. The "summary"
odds ratios for the risk of ovarian cancer between ever use subjects and never
use subjects was 1.29, and it was statistically significant.
Cramer then discussed the Hill factors for an association to support an
inference of causation. He opined that the result of a statistically significant
association was consistent in studies in the United States, Canada, England,
China, and Australia, which established geographical and ethnic diversity of
the study populations. The results were also consistent between the case -
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control studies that were hospital-based and population-based, and there was
no significant heterogeneity among them.
Cramer noted that some researchers had called the tendency of cohort
studies to report a lower odds ratio for talc and ovarian cancer than in the case -
control studies a sign that the case-control studies had recall or reporting
shortcomings. He disagreed, on the ground that one would expect more recall
or reporting bias in the more recent studies, due to increased publicity about
the potential link between talc use and ovarian cancer, yet the odds ratios in
the recent case-control studies were not higher than in the earlier ones. He
believed instead that neither cases nor controls were likely to be inaccurate
about "daily or weekly use of talc carried on for decades[,] which is where the
risk for ovarian cancer from talc use lies."
Cramer also mentioned selection bias, which he described as the
possibility that the exposure history of the cases or the controls was not
representative of the portion of the general population that the study intended
to address. He explained that "significant correlations" in the reported
response rates between cases and controls would suggest selection bias, and
that his 2016 meta-analysis did not find any.
Cramer noted that confounding can occur in both case-control and cohort
studies. He observed that most talc studies adjusted for age and known risk
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factors, including parity and oral contraceptive use. Some studies, including
his own 2016 study, had odds ratios that remained significant after adjustment
for obesity. Indeed, Cramer's latest study did not find that obesity or any of
twenty-three other potential confounders changed the crude odds ratio by as
much as ten percent, the conventional threshold for a confounder. As
additional confirmation, Cramer cited a study, published by John Whysner i n
2000, as finding no evidence that potential confounders increased the risk of
ovarian cancer for women who had used cornstarch instead of talc.
As for the strength of the association, Cramer explained that Hill stated
that an odds ratio of less than 2.0 can be strong enough to indicate causality as
long as the association did not arise from bias, confounding, or random error.
Cramer cited genome association studies that were analogous to the meta-
analyses of talc and ovarian cancer in the number and heterogeneity of study
subjects, and he stated that their authors inferred causation on statistical results
comparable to those in his own studies. On those bases, he opined that an
odds ratio of 1.3 was strong enough to support an inference of causation.
Cramer opined that questions about dose response required information
about the frequency and duration of talc use. He acknowledged the difficulties
arising from the lack of a standard measure for the amount of talc used in a
perineal application, the amount entering the body, and the amount reaching
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the upper reproductive tract. Nonetheless, "larger and more recent case control
studies" that he cited, including his own from 2015, showed a dose response
according to the estimated number of applications, especially when the
analysis was limited to users, or to subjects whose upper reproductive tracts
were open to particulate transmission.
For biologic credibility, Cramer stated that the association must "make[]
sense in terms of what is known about the biology of the cancer" and about
whether animal or cell-line experiments "support an association." He cited
several studies as proving that talc particles can migrate as far as the ovaries.
After describing the theory in his first paper that talc particles can "cause
changes predisposing to ovarian cancer," he cited Buz'Zard's 2007 study for its
finding that talc-induced changes in ovarian cell proliferation that were
"indicative of malignancy" could be increased by anti-inflammatory agents,
and he noted that the finding suggested "a role" in ovarian cancer for the
reactive oxygen species that are part of the response when inflammation
stimulates the immune system into action.
Cramer's most recent theory relied on a model in which chronic
inflammation in the upper reproductive tract blunted the immune system's
production of the antibodies that respond to the class of cellular-surface
proteins called mucins, which include the molecular markers of ovarian
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cancer. When the immune system is functioning normally, it produces
protective antibodies when those mucins are "over-expressed," which occurs
"during inflammatory, infectious, hormonal, or neoplastic events." He called
ovarian cancer "a mucin secreting cancer," and he opined that the data from
case-control and cohort studies showed that increased levels of anti-mucin
antibodies were associated with decreased risks of ovarian cancer, while
decreased levels of those antibodies were associated with increased risks of
ovarian cancer.
Cramer further explained that women with ovarian cancer and long-term
talc use had blood-test results before the start of cancer treatment that
indicated chronic inflammation. He then opined that long-term talc use could
cause chronic inflammation in pelvic lymph nodes, that the immune system's
response to such chronic inflammation would eventually fatigue it, and that the
fatigue would blunt the immune response to the over-production of mucin in
the ovaries and allow cancer to develop.
Cramer noted the 2014 statement by the NCI that the results of WHI and
NHS did not support an inference of causation for talc and ovarian cancer. He
observed that WHI enrolled only women of an average age well past that of
menopause, a population that had a lower association between talc use and
ovarian cancer than for premenopausal women, and that it failed to identify
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cohort members who had their ovaries removed during the study period. For
NHS, talc exposure was assessed only upon enrollment and was assumed to
remain constant during the twelve-year study period, despite the likelihood
that nurses would have been aware of the "considerable publicity" about talc
and ovarian cancer and might have reduced their talc use in response.
Cramer opined that Carl's obesity, nulliparity, and reported frequency
and duration of perineal talc use were the "major factors that could have
contributed to" her ovarian cancer, which was a serous borderline tumor.
Carl's reported talc use amounted to an estimated 5980 applications over
twenty-three years, and Cramer's analysis of "data supplied to the Defense" in
an out-of-state case about perineal talc use as a cause of ovarian cancer yielded
a statistically significant odds ratio of 2.05 for serous borderline tumors in
women with more than 5040 applications. He performed a meta-analysis of
studies about obesity like Carl's and ovarian cancer, and another meta -analysis
of studies about parity and ovarian cancer. The odds ratios that he calculated
were lower than that for talc use like Carl's and ovarian cancer, so he opined
that her talc use was "more likely than not . . . the major cause" of her cancer.
Cramer explained that Carl had a "very low likelihood" of the BRCA
mutation that can increase the risk of ovarian cancer, based on the absence of a
family history of ovarian cancer and on a study in Ontario from 2001 in which
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none of the cases with borderline ovarian cancer had that mutation. She had
used psychotropic medication, been employed as a hairdresser for seven years,
and had a smoking history. The ovarian cancer studies that addressed those
potential risk factors were inconsistent, failing to show a statistically
significant association with serous borderline ovarian cancer.
Cramer issued his expert report on general and specific causation for
Balderrama on February 23, 2016. The opinions and explanations on general
causation were the same as in his report for Carl. Balderrama was thirty-six
years old when he issued this report, she had no children, she had never
smoked, and she was obese. Multiple examinations starting in October 2011 to
assess her infertility ended with surgery in November 2012 that included
removal of her ovaries. Pathology revealed an endometrioid tumor of the right
ovary and an endometrioid invasive tumor of the uterus.
The pathologist could not determine whether the tumors were related.
Cramer's colleague, Dr. William Welch, an expert in gynecological pathology,
reviewed pathology slides and concluded that the tumors were independent
primary tumors. Cramer agreed, based on studies showing that it was
relatively rare for an ovarian endometrioid tumor to be the secondary
manifestation of another endometrial neoplasia. Cramer explained that the
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primacy of the ovarian tumor allowed him to analyze and weight its risk
factors separately from such an analysis and weighting for the uterine tumor.
Cramer cited four studies on obesity and endometrial cancer to opine
that the association of obesity with ovarian cancer varied by histological
subtype. He performed a meta-analysis of the eight studies that reported odds
ratios for ever use of talc and endometrioid ovarian cancer versus never use,
and he found a statistically significant summary odds ratio of 1.4. Only a
small number of cases among those studies were premenopausal like
Balderrama and reported talc use that approached her estimated 9700
applications, so he used the data from an out-of-state litigation "for all
endometrioid cases" of ovarian cancer, apparently meaning premenopausal and
menopausal, categorized by number of applications. His result for cases who
had more than 6000 applications and were obese was a statistically significant
odds ratio of 1.79.
For the effect of parity, Cramer found five studies and performed a
meta-analysis that yielded a statistically significant summary odds ratio of
1.60. Balderrama reported having used oral contraceptives to regulate her
menstruation, but her lack of recall about the duration of such use and the
irregularity of her cycle made it impossible to determine whether that use
might have conferred any degree of the known protective effect against
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ovarian cancer through the suppression of ovulation and thus of its attenda nt
inflammation.
Cramer cited two studies that reported results about the risk that
Balderrama's degree of obesity posed for endometrioid ovarian cancer. One
reported a statistically significant odds ratio of 1.86 compared to nonobese
study subjects, the other an odds ratio of 1.2 that was not statistically
significant. He opined that the odds ratio for talc was higher than the
combined "inconsistent" odds ratios for obesity, which made Balderrama's talc
use "more likely than not" the "major cause" of her endometrioid ovarian
cancer. He added without elaboration that Godleski's finding of talc in
Balderrama's ovarian tissue was a factor in his opinion. By contrast, when
Cramer performed that analysis for Balderrama's independent uterine tumor,
he determined that its primary cause was her obesity rather than her talc use,
even though the association of obesity with that tumor's histological subtype
was much lower than the association of obesity with uterine cancer in general.
Cramer testified that potential confounders must at least be named, not
just presumed as in some industry criticism of certain studies. He added that
no scientist had declared an odds ratio of 2.0 to be the threshold below which
causation may not be inferred. He criticized the NCI's statement of no
association between talc use and ovarian cancer by explaining what he saw as
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its overreading of certain studies that it cited, and for citing only four studies
when the literature contained more than twenty-five. He criticized the FDA's
April 2014 letter on talc and ovarian cancer for failing to cite any authority
when it declared the lack of causality.
For Colditz's statement on a hospital website that an association of 1.1 to
1.5 is a "weak" risk, Cramer called it necessarily reductive so that patients
could understand it, and that it was neither Colditz's nor anyone else's idea of a
scientific statement. Responding to an objection by a reviewer of his 2016
study about his "dicing and slicing" the data in order to explain away
confounders, Cramer said that the objection was invalid because such data
analysis is exactly how one tests for confounders.
Cramer explained that cohort studies must track their subjects during
their entire duration for both age and cumulative exposure at each data-
collection interval, or they may risk reporting an injury rate that looks steady
across the intervals, and miss the true rate if the injury is one that develops
more slowly than expected. More generally, what mattered in a cohort study
was not so much the size of the study population as "the number of cases
found and the quality of the exposure data that the cohort started with." It was
an increase in the number of cases, not in overall study population, that would
afford a "more precise" odds ratio and a narrower confidence interval.
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Cramer said that Balderrama developed her tumors early enough to raise
the question of genetics generally, but that nothing in her family history of
cancer stood out as suggesting a genetic cause. Cramer acknowledged that her
relative risk of 1.86 for ovarian cancer from obesity represented a significant
risk that she could have developed endometrioid cancer from that cause alone.
Cramer then explained that the quartiles for talc exposure in his analysis
for Carl were different than in his analysis for Balderrama because their
exposure periods were different, but that the quartiles still yielded a reasonable
set of exposure categories. He used the literature to estimate Carl's relative
risk for ovarian cancer from obesity at 1.75, but he did not stratify the data in
that estimate by degree of obesity, even though she was not much less obese
than Balderrama.
B. Graham Colditz. Graham Colditz testified as an expert
epidemiologist specializing in identifying avoidable cancer risk factors. He
was licensed to practice medicine in Australia, held a doctoral degree in
epidemiology and public health, was a professor at Washington University
School of Medicine, and the associate director for prevention and control at
Siteman Cancer Center, an NCI-funded comprehensive cancer center.
Colditz issued his expert report on general causation on July 31, 2015,
which cited sixty-three published studies. On "the totality of all evidence and
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the continuing accrual of new studies," he opined that genital talc use "can
cause ovarian cancer." He did not address specific causation.
Colditz noted that Hill provided a framework for addressing the issues in
"summarizing evidence," which included strength of association, consistency
of studies in finding an association, temporality, dose response, biologic
plausibility, "coherence," "experimentation," and "analogy." For the
association of talc exposure to ovarian cancer, Colditz identified the "key"
issues as consistency of association, dose response, and biological plausibility.
Colditz described his methodology as starting with "a systematic search
and review of the literature" including his own prior research, analyzing
"experimental, clinical and epidemiological studies and data," and applying his
"skills in research synthesis." He then assessed the epidemiological studies for
potential biases and confounding, and observed that some meta-analyses paid
"insufficient attention to the quality of the exposure and outcome measures" in
the underlying studies.
Colditz summarized the grounding for his opinions as the
epidemiological studies that "show" an increased risk of ovarian cancer from
talc use and "support" a dose response. His basis for believing talc to be a
biologically plausible cause of ovarian cancer was that "[t]alc can travel to the
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ovaries causing an inflammatory response" and that "the inflammatory
mechanism is consistent with the increase in risk of ovarian cancer."
Colditz related that most studies of talc and ovarian cancer were case-
control studies, most were population-based, and focused on "detailed
assessment of exposure among cases and control subjects." For the
epidemiological studies published in 2006 or earlier, Colditz relied on the
summaries of their evidence in a 2006 IARC report not included in this record,
which summarized the epidemiological studies to that date, the evidence from
in vitro studies, and "other sources of evidence."
Colditz described the IARC 2006 report, the 2008 Langseth study, and a
2006 study by Robert Baan as concluding that talc was "a possible
carcinogen." He stated that the population-based case-control studies showed
a statistically significant association of 1.4 between ever use and ovarian
cancer. He added that in a part of the IARC study "[f]ocusing on [eight]
higher quality studies," which included five of the studies in this record
(Cramer 1982, Chang 1997, Cramer 1999, Ness 2000, and Mills 2004), the
IARC found that the rate of perineal talc use among controls ranged from
sixteen to fifty-two percent, and that the relative risk of ovarian cancer
correspondingly increased from 1.30 to 1.61. Furthermore, four of the five
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studies that reported results by histological subtype suggested that talc
exposure created a higher risk of serous tumors than of other subtypes.
Colditz explained that the WHI study participants were at an average of
ten years after menopause upon enrollment, and that the talc users were asked
to report duration, but not frequency or whether their use was current. The
study assumed no changes in a participant's status during the 12.4-year study
period, including no surgical removal of an ovary. The study reported no
association between talc use and ovarian cancer, but Colditz saw
"considerable" limitations in the data that it collected and the ensuing analysis.
For NHS, the cohort was thirty to fifty-five years old at enrollment, yet talc
use was similarly determined at enrollment by only one parameter, in that case
frequency instead of duration, and it was assumed to remain constant.
Colditz cited Gertig's 2000 study as the first analysis of NHS data. No
association was found for ever users without regard to subtype, but when
subtype was considered, a "significant increase in risk" appeared for invasive
serous cancer. Colditz then cited the Gates's 2008 study as finding a
significant increase in risk from "regular talc use," with the risk being
"somewhat stronger" for invasive serous cancer than for ovarian cancer overall
without regard to subtype.
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Colditz explained that Terry's 2013 study had "the strongest analytic
approach," because it did not just combine the reported results of individual
summaries, but rather obtained all the data and used "common definitions and
analytic methods" to analyze the data for each individual patient, which
reduced the potential bias from differences in methodology. That approach
was applied to the data from eight case-control studies, some of which were
updated to include additional cases and controls since their publication, for a
total of 8525 cases and 9859 controls. The analysis controlled for the
established risk factors for ovarian cancer, which included age, parity, oral
contraceptive use, tubal ligation, obesity, and race and ethnicity. Colditz
called the statistically significant association of 1.24 for genital talc use and
ovarian cancer compared to never use a "modest increase in risk." The risk
was higher for "cancers defined by cell subtype" and for borderline serous
tumors.
Colditz recognized that Terry's 2013 study found a dose response only
for non-mucinous tumors, and only when the entire study population was
considered, with no dose response when only users were considered.
However, four other studies showed a significant dose response, and three of
them were among what the IARC called the eight higher quality studies.
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On magnitude of risk, Colditz insisted that it not need reach 2.0 to
support an inference of causation. He explained how the IARC had classified
a combined hormone therapy as a cause of breast cancer based on WHI data
that showed the relative risk to be from 1.24 to 1.26.
Colditz opined that "the quality and depth of exposure assessment" were
fundamental questions in evaluating an epidemiological study. He opined that
case-control studies may have more complete assessments of an exposure if
that is their sole or primary focus, whereas cohort studies "typically relate
lifestyle exposures to a broad range of conditions" and have less room in their
questionnaires for stratification questions at enrollment or for follow -up
questions about changes in status. The point was not that one kind of study
was better or more reliable, but rather that "the details of exposure assessment"
at enrollment and over time were important.
Colditz discussed biological plausibility briefly, by citing the 1999 Ness
study, a 2009 study published by Jack Cuzick and coauthors that is not in the
record,12 the 2014 Trabert study, and the 2014 Trabert and Ness study. He
believed that they "established that talc can travel to the ovary, it causes an
12
Jack Cuzick, Aspirin and Non-Steroidal Anti-Inflammatory Drugs for
Cancer Prevention: An International Consensus Statement, 10 Oncol. 501
(2009).
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inflammatory response, and this mechanism is consistent with the increase in
risk of ovarian cancer that is observed."
In his testimony, Colditz opined about ovarian cancer in general, without
specifically discussing different subtypes. He repeated the descriptions of
epidemiological studies, meta-analyses, and the primacy of study design to
reliability that were in his report. He also repeated his report's description of
his methodology, and of his views on the typical limitations of cohort studies,
using NHS as an example.
Colditz believed that the IARC's 2006 review of talc and ovarian cancer
was "full and complete," at least for its time. He added that the successive
meta-analyses, each to some degree expanding upon its predecessors, gave a
sense of the accumulating evidence of talc's association with ovarian cancer.
He thought that Cramer's 2016 study truly minimized confounding. On the
totality of the evidence, Colditz opined that talc use causes ovarian cancer.
Colditz agreed that the cohort studies and the hospital-based case-control
studies did not report a statistically significant association between talc use
and ovarian cancer, and that the population-based case-control studies had
mixed results. He criticized hospital-based case-control studies for uncertainty
about their "catchments" for different diseases, presumably meaning that the
study populations may have additional diseases that are confounders for the
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disease being studied. He asserted that the NCI was funding population -based
case-control studies rather than hospital-based ones for that reason, and that
case-control studies intended for publication in peer-reviewed articles will
similarly attract funding only if they are population-based.
Colditz declared that a risk ratio did not have to exceed 2.0 to be
meaningful, and he added that in comparing study results, a lower relative risk
may be more meaningful if it comes from a larger study, for which size alone
often affords a tighter confidence interval. For those reasons, calling a study
weak or strong based solely on the relative risk ratio that it generated would be
unsound.
Colditz acknowledged that, while his report cited studies supporting
acceptance of inflammation as a plausible mechanism, it did not cite studies or
other literature on the plausibility of talc migration to the ovary. When asked
to address migration further, he responded that "I believe others have written
reports and detailed on that."
The trial judge asked Colditz to elaborate on the theory about inclusion
cysts in Cramer's 1982 study, and he responded by describing the theory as
postulating that when an ovary's surface epithelium is disrupted by ovulation,
the immune system treats it as an inflammatory event, with talc that is present
on the surface getting entrapped in the inclusion cyst during the repair of the
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ovarian surface. When the court asked Colditz if he had found any other peer -
reviewed articles in which that theory had been discussed, he replied that he
did not know of one that discussed inclusion cysts, and that there was a need
for "continuing studies to understand this whole process better."
C. John Godleski. John Godleski was at the time of the hearing a
Harvard Medical School professor of pathology. He had published numerous
papers on electron microscopy and environmental pathology. He conducted a
pathology research group, and he was an expert in diagnosing foreign material
in all body tissues.
Godleski analyzed tissue samples from Carl and Balderrama. For Carl,
he used the samples to confirm the diagnosis of serous borderline cancers in
the right and left ovaries with metastases to two lymph nodes. The pathology
report from the hospital that supplied the samples stated that Carl also had
"invasive tumor implants" on her uterus and elsewhere within her peritoneum.
Godleski's report described how his laboratory observed its protocols to
avoid contaminating the tissue samples. The laboratory then used polarized
light, followed by a scanning electron microscope with an energy dispersive
X-ray analysis system, to identify birefringent particles in one ovary and one
lymph node. Spectral analysis showed that most particles were of kinds
normally present, while some other particles contained magnesium, silicon,
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and oxygen "in the proportions expected with talc," which was enough to
identify them as talc.
The report explained that the testing used "an extremely small volume of
tissue," and that the number of talc particles indicated that "substantial
amounts of talc were present in this patient," including "within the
ovary/tumor and draining lymph nodes," which was consistent with Cramer's
published finding about one ovarian cancer patient who had "large amounts of
talc . . . in lymph nodes draining the pelvis." Godleski concluded that "the talc
found in this case" was "evidence for a causal link between the presence of talc
and the development of" Carl's ovarian cancer.
For Balderrama, Godleski's report related the use of similar procedures
to distinguish particles normally present from particles with the composition of
talc in her right ovary, endocervix, uterine wall, and some lymph nodes. In
similar fashion, the report explained that substantial amounts of talc were
present in Balderrama, and reached the same conclusion, which was that the
talc was "evidence for a causal link" between the talc's presence and the
occurrence of ovarian cancer.
Godleski testified that his belief in a possible causal link between the
talc particles that he found in Carl's and Balderrama's tissue samples and their
cases of ovarian cancer was based simply on the consistency of his findings
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with the reports in some epidemiological studies of a causal link between the
presence of talc and ovarian cancer. The presence of talc just "add[s] evidence
to the epidemiologic story," and Godleski did not presume to proffer evidence
of biologic causation himself, other than to state that he believed the talc was
present because it had been collected by macrophages. Indeed, he had no
reason to doubt the findings of Carl's and Balderrama's treating pathologists
that neither of them had a "talc-related inflammatory reaction."
D. Curtis Omiecinski. Curtis Omiecinski, who had a Ph.D. in
pharmacology, was a professor of molecular toxicology at Penn State
University. His discipline required study in chemistry, biochemistry, biology,
physiology, molecular biology, and genetics and in how they "come together."
His main work was to "make predictions about the interactions of chemicals
[and] environmental agents on disease status and human health in particular."
Plaintiffs submitted a report that Omiecinski had issued in April 2015 in an
out-of-state litigation on talc and ovarian cancer.
Omiecinski's report stated that "particulate exposures in general often
evoke inflammatory responses within the affected tissues and organs."
Inflammation and its "pathways" have been "recognized" as part of the cause
of prostate cancer, and they are "likely" part of the cause of "epithelial ovarian
cancer" as well. In general terms, when particles cause inflammation,
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macrophages detect and engulf them and release chemokines, which recruit
leukocytes and facilitate their entry into cells, prompting the cells to generate
reactive oxygen species that can incidentally damage genetic material in ways
that lead to mutations. Mutations, and also the cell proliferation that
inflammation promotes, contribute to the early stages of cancer, which
develops through multiple stages.
The observation of several factors that are present when inflammation
and ovarian cancer are also present has inspired hypotheses about
inflammation as a cause of cancer. However, while much of carcinogenesis is
common to all cancers, the differences among normal tissue types in
sensitivities and in the ability to repair genetic damage or force the death of
abnormal cells may also exist for the corresponding variety of "tissue-selective
cancers" that differ at least partially in their molecular pathways.
Omiecinski cited "[s]everal lines of evidence" showing that particulates
like talc can migrate from the perineum to the upper reproductive tract. He
also cited in vitro studies, including Buz'Zard's, of the response of cultured
human cells to inflammation and the oxidative stress that it creates. On that
basis, he opined that talc in certain situations can "trigger" inflammatory
responses that cause the creation of reactive oxygen species. Although he was
not an epidemiologist, he believed that the weight of the corpus of
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epidemiological studies of talc and ovarian cancer demonstrated enough
associations to support his opinion that chronic perineal exposures to talc were
"predisposing and causative contributors" to the development of epithelial
ovarian cancer.
In his testimony, Omiecinski restated his opinion that perineal talc can
migrate to the ovaries, that talc in ovarian tissue can cause inflammation, and
that such inflammation can "initiate" cancer. He developed his opinion by
reviewing the literature. His search yielded seventy-one peer-reviewed
articles, including approximately three dozen epidemiologic studies that
reached varying conclusions about the association of talc with ovarian cancer.
He focused on the biology and genesis of ovarian cancer, the migration of
particles through the reproductive tract to the ovaries, the differences between
talc and other particles, the cellular effects of talc exposure, and possible
mechanisms for chronic talc exposure to cause ovarian cancer. He also looked
at websites including those of the IARC, the NCI, and the FDA.
Omiecinski explained that one of the cellular effects of inflammation is
the process that leads to the generation of reactive oxygen species, which
could then initiate a process leading to cancer. Those oxygen species can be
beneficial by killing infection cells, but when inflammation is not caused by
infection, they can instead act upon and damage the DNA of healthy cells, and
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the mutated DNA can initiate carcinogenesis by signaling those cells to
proliferate.
Omiecinski observed that in vitro studies were valuable because they
permitted observation of "live cellular systems" in precisely controlled
conditions. There were in vitro studies on many different particles in addition
to talc, and he opined that they were similar in showing an inflammatory
response that could "be manifested in increased proliferation ability" of the
damaged cells.
Omiecinski noted that Buz'Zard's in vitro study, about the effect of talc
on granulosa ovarian cells and on epithelial cells, had three results
characteristic of the progression toward cancer. They were the increase in
reactive oxygen species; the increased rates of cell proliferation that are
evocative of cancer's uncontrolled proliferation; and the increase in cellular
"neoplastic transformation" and "dedifferentiating," which meant departures
from the cell's proper morphology and functioning toward the aberrance that
typifies cancer cells.
Omiecinski agreed that his opinion and explanations were not
inconsistent with the proposition that reactive oxygen species that arise solely
from inflammation may cause cellular damage that leads to cancer. He then
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agreed with the coherence of a theory that the monthly inflammation due to
ovulation may be enough to initiate that process.
V.
We have provided exhaustive details of the reports to support our
conclusion that plaintiffs' experts provided admissible opinions meeting the
Manual and Hill protocols. They relied upon significant studies that the
relevant scientific field accepted as suitable for such reliance. The reasons that
Cramer and Colditz gave for finding certain epidemiological studies more
pertinent than others did not conflict with the scientific community's principles
for interpreting and relying upon studies. They neither misread or
misrepresented study results, nor relied on studies that represented less than a
substantial portion of the available scientific literature. They anchored their
opinions on the studies regarding biologically plausible mechanisms that even
governmental and agency resources recognized as plausible.
Although the Manual observed that larger study populations, where
possible, were more reliable, the Manual also acknowledged that size alone
was not a paramount foundation for reliability. It did not declare cohort
studies inherently more reliable than case-control studies due to population
size or any other design element.
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Cramer's explanation of how he interpreted and relied on
epidemiological studies was consistent with the Manual and Hill. He
disagreed with the view of some researchers that the lower odds ratios reported
in the cohort studies exposed the presence of recall or reporting bias in the
case-control studies. He explained that study subjects were unlikely not to
remember the decades-long use of talc on a daily or weekly basis that he said
was needed for talc to become a risk factor, and that the absence of such bias
was demonstrated by the consistency over the years in the odds ratios from
case-control studies, notwithstanding the growing publicity about the
suspected association of talc with ovarian cancer. Cramer further explained
how he tested for selection bias in his 2016 case-control study and did not find
any. He added that cohort studies must repeatedly obtain data about their
participants' cumulative exposure, in order to detect the true association if the
disease's latency is greater than expected.
Cramer then noted that confounding can occur in any study, that most
studies addressed age and known risk factors, and that the testing for
confounders in his 2016 study found their influence to be too small to affect
the results. He also explained that the authors of genome association studies
that were analogous to meta-analyses of talc and ovarian cancer in the number
and heterogeneity of study subjects inferred causation upon statistical results
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comparable to those in his own studies. For all of those reasons, Cramer
opined that an odds ratio of 1.3 was strong enough to support an inference of
causation.
Colditz's explanation of his reliance on studies was likewise consistent
with the Manual and Hill. He discussed Hill as an outline for evaluating and
synthesizing his prior research and the relevant scientific literature that he
found while preparing his reports for plaintiffs. Colditz opined that relative
risk did not have to be 2.0 for an inference of causation, and provided an
example in which the IARC found a relative risk of approximately 1.25 in
WHI data about breast cancer a sufficient basis to declare causation. He added
that the most fundamental question for any study was how well it was designed
to identify the nature and extent of the relevant exposure, and explained that
case-control studies that focus on one disease may be superior in that regard to
the cohort studies that typically cover too broad a range of diseases or
conditions to give them the same attention.
For studies of talc and ovarian cancer, Colditz opined that the most
important Hill factors were consistent reports of an association, dose response,
and biological plausibility. He assessed the epidemiological studies for bias
and confounding, and found that some meta-analyses paid insufficient
attention to the "quality" of the measures that their underlying studies used for
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talc exposure and for the participants' outcomes. Colditz also considered the
results of in vitro experiments.
Defendants' experts stated reasons for considering case-control studies to
be unreliable. But the choice of those reasons over those of plaintiffs' experts
or of the Manual is a judgment about their relative credibility. For example,
while the IARC found only "limited evidence" of an association between
perineal talc use and ovarian cancer and expressed general reservations about
the limitations of epidemiological studies, it did not find the studies, let alone
case-control studies in particular, unsuitable for reliance. Neither the Manual
nor Hill requires a study to report a risk or odds ratio of 2.0 to be considered
support for an inference of causation. At substantially lower ratios, which they
did not quantify, they counseled greater attention to the possibility of bias,
confounding, and likely alternative causes.
The cohort, case-control, and pooled or meta-analyses in the record
contained considerably more than minimal support for an association of talc
with ovarian cancer, whether they are considered together or just by kind of
study. The two hospital-based case-control studies (Cramer 1982 and Ness
2000), along with four of the five population-based case-control studies
(Chang 1997, Cramer 1999, Mills 2004, and Cramer 2016) and one of the three
cohort studies (Gertig 2000), reported a statistically significant association. In
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addition, all of the pooled or meta-analyses reported a statistically significant
association. While the earlier pooled and meta-analyses called the association
weak or doubtful due to variability among the underlying studies (Huncharek
2003) or the lack of a dose response (Langseth 2008), the more recent ones
(Terry 2013 and Ness 2015) did not.
The NCI website and some of the studies noted that serous and
endometrial ovarian cancer are both subtypes of epithelial ovarian cancer
(Cramer 1999, Gertig 2000, Mills 2004, Gates 2009, Terry 2013, Ness 2015).
They observed that those and the other subtypes may be different in genesis
and behavior, but also that the differences had not yet been established. They
named borderline and invasive tumors of each subtype as a separate subtype by
itself, they did not contradict the hearing testimony of one defense expert that
borderline ovarian tumors "are rarely precursors to" invasive ovarian cancer,
and neither Cramer nor Colditz miscited them as if they did.
Among the histological subtypes of epithelial ovarian cancer, four of the
studies found the association with talc to be strongest for the serous invasive
subtype (Cramer 1999, Gertig 2000, Mills 2004, and Cramer 2016). One of
those (Gertig 2000) found a statistically significant association for that subtype
only, while noting that studies might have lacked the power to find an
association with other subtypes if those cancers have a long latency. Another
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one (Cramer 2016) found the association to be strongest between perineal talc
use for more than twenty-four years and both the serous invasive and
endometrioid subtypes.
The studies provided less support for a dose response. The cohort
studies did not state results about it, while one of the two hospital-based case-
control studies found a dose response (Ness 2000). Of the population -based
case-control studies that found a statistically significant association of talc
with ovarian cancer, two found that the dose response was marginal (Chang
1997 and Cramer 1999), one found a dose response for frequency of use but
not duration (Cramer 2016), and one found no dose response (Mills 2004). Of
the three pooled or meta-analyses that addressed dose response, one found it
be minimal (Terry 2013), one found it to be inconsistent (Ness 1999), and one
found no "clear" response (Huncharek 2003). Many of the studies noted the
inherent difficulty in estimating the amount of product used in any application
or of the talc within it (for example, Terry 2013).
Cramer's opinions were substantially consistent with those studies.
Cramer applied the Hill factors in discussing the studies on which he relied.
He addressed data quality in the meta-analyses, such as the varying
classifications of talc use, and he explained that reanalyzing them with a more
nearly uniform classification of talc use as meaning only perineal use would
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have had little effect on their results. He found the meta-analyses consistent in
showing a statistically significant association, including the meta-analysis he
performed in preparing his report, which he said had little heterogeneity even
though it encompassed both cohort and case-control studies. He acknowledged
the limited evidence of a dose response and explained that it could reflect the
difficulty of quantifying the amount of talc in each application. For the NCI's
conclusion that WHI and NHS did not support an inference of causation,
Cramer described what he saw as selection bias in WHI and the failure of NHS
to consider changes in the participants' talc use over time.
Colditz opined that the epidemiological studies as a whole showed an
increased risk of ovarian cancer from talc use, and that to a lesser degree they
supported the inference of a dose response. One pooled analysis with such
results was the IARC 2006 report, which in turn relied on two of Cramer's
studies and one each from Chang and Ness among what it considered the eight
studies of higher quality. For WHI and NHS, Colditz's descriptions of the
shortcomings were similar to Cramer's. Colditz also described the extra
measures in Terry's 2013 pooled analysis for the OCAC to minimize bias from
study heterogeneity.
The FDA found the absence of "conclusive evidence" that talc causes
ovarian cancer, based mostly on the lack of general acceptance of a biological
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mechanism. However, it did not find the proposed biological mechanisms
implausible or contrary to established science, and it called the "growing
body" of epidemiological study evidence "difficult to dismiss." One of its
reasons for finding the evidence less than conclusive was the possibility that
cases of cancer were caused by asbestos in the talc rather than the talc itself.
The NCI similarly refrained from calling an association between ovarian
cancer and talc or between ovarian cancer and inflammation to be implausible,
even though it found the evidence to be inadequate due to inconsistent study
results.
Of all the studies, the only ones that reported results for a statistically
significant association of inflammation with ovarian cancer were two of the
pooled or meta-analyses. One of those found such an association (Trabert and
Ness 2014), while the other found it to be inconclusive (Ness 1999).
The only studies with discussions of how talc might cause ovarian
cancer in theory were case-control studies. The discussions started with the
possibility that migratory talc would cause ovarian inflammation, either
directly (Cramer 1982), by causing foreign body entrapment of ovarian s urface
epithelium (Cramer 1982, Chang 1997, and Cramer 1999), or by getting
entrapped in ovulation inclusion cysts (Chang 1997). Two studies discussed
later versions of the inflammation hypothesis, which involved the immune
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system and reactive oxygen species or mucins (Mills 2004, Cramer and
Godleski 2007). Another study, a more recent one that did not focus on talc,
discussed how inflammation at sites other than the ovaries could result in
ovarian cancer (Trabert 2014).
The record on laboratory testing to connect the presence of talc with
ovarian cancer was sparser, but did not contradict it. The presence of talc in
ovaries had long been established (Chang 1997, citing published studies from
1961 and 1971; Cramer and Godleski 2007; Langseth 2008). Godleski, whose
work and testimony the court named without criticism, found talc in tissue
samples of both Carl's and Balderrama's ovaries, but no inflammation. Doctor
Lewis Chodosh, an expert for defendants who was a practicing physician, a
professor of cancer biology at the University of Pennsylvania School of
Medicine, its overseer of faculty research on human carcinogenesis, and an
editor of medical journals and member of peer-review panels, agreed that talc
can migrate to the ovaries. Omiecinski, whose report and testimony the court
likewise refrained from criticizing, explained the possible role of migrating
talc in the inflammation hypothesis, and the discussion of that hypothesis in
numerous published studies.
Cramer agreed that any causal mechanism must "make sense" in terms of
"what is known." He discussed the evidence that talc can migrate to the
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ovaries and the development of evidence relating reactive oxygen species and
mucins to ovarian cancer. He then explained how it supported his initial v iew
that talc might directly cause changes in ovarian tissue that contribute to
carcinogenesis, his later view that talc could contribute to carcinogenesis
indirectly by causing inflammation that generates reactive oxygen species, and
his current view that talc's contribution could be to chronic inflammation
within the upper reproductive tract that eventually blunted the immune
system's ability to respond to the markers that an ovarian cancer emits.
Colditz rested his opinion about the biological plausibility of
inflammation theories on the work of other experts. Some of those experts
established that talc can travel to the ovaries or that talc can cause
inflammation, while the epidemiologists who found an association between
talc use and ovarian cancer did not see a reason, pending actual
demonstrations, why an inflammatory process would be inconsistent with the
genesis of ovarian cancer.
On specific causation, Cramer discussed Carl's personal history, her
reported talc use, and her alternative known risk factors, primarily obesity and
nulliparity. He performed a statistical analysis on a data set that defendants'
experts did not challenge, and he found a statistically significant odds ratio of
2.05 for Carl's cancer subtype, serous borderline, among women with as many
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perineal applications of talc as Carl. He performed one meta-analysis of
studies that considered ovarian cancer in relation to obesity, and another of
studies about ovarian cancer and parity, and concluded from their generation
of odds ratios lower than 2.05 that talc likely contributed more to Carl's cancer
than her obesity or nulliparity did. He then named several other possible risk
factors for her and explained how the studies that addressed them failed to
show a statistically significant association between them and her tumor
subtype.
Cramer performed the same evaluation for Balderrama and her cancer
subtype, endometrioid. That included meta-analyses of the studies of perineal
talc use and of her other known risk factors with endometrial ovarian cancer.
He found a statistically significant odds ratio of 1.79 for her cancer subtype
among women with at least approximately sixty percent as many perineal
applications of talc as Balderrama reported, and he found that to be higher than
the ratio for her other main risk factors. Cramer acknowledged that was not
the case for Balderrama's uterine endothelial tumor, and he explained why it
was a separate primary cancer rather than an incident of her ovarian cancer.
Cramer's findings for Carl's and Balderrama's subtypes of ovarian cancer were
consistent with the results in his 2016 case-control study.
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Colditz did not opine on specific causation, but he noted that four of the
five studies in the IARC 2006 report that addressed subtypes found the risk
increase to be greatest for serous ovarian cancer. He added that Gertig in 2000
found that stratification of the NHS data by subtype showed a significant
increase in risk for serous invasive cancer, and that Gates in 2008 found the
risk for invasive serous cancer to be somewhat stronger than for ovarian cancer
without regard to subtype.
VI.
The trial judge was called upon to assess whether the opinions were the
product of reliable data and employed methodologies accepted by the scientific
community. Instead, he selected defendants' scientific methodologies over
plaintiffs', a process well beyond the gatekeeping function, and which resulted
in an abuse of discretion. Under prior law or post-Accutane, the court erred by
categorically characterizing cohort studies as more credible than case-control
studies; imposing a relative risk of 2.0 as the threshold for the result of an
epidemiological study to become reliable for any purpose; requiring Cramer
and Colditz to develop their own studies to support their inflammation
hypotheses instead of relying on the work of other experts; and requiring
Cramer and Colditz to disprove the causation theories of defendants' experts.
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Furthermore, the trial judge, as to specific causation, erred by
mischaracterizing Cramer's methodology, which was unobjectionable.
The judge also erred because he described the Manual, incorrectly, as
characterizing case-control studies generally as subject to informational bias.
Nor did the Manual admonish users about the superiority of studies with large
samples. Nothing in the Manual imposed a threshold for a sample size to be
"large enough"; in fact, all the case-control studies in the record had sample
sizes in the hundreds or thousands. The judge did not identify errors that
would make it unsound for an expert to rely on these studies that the relevant
scientific field accepted for that purpose.
The case-control studies were a substantial portion of the hearing record,
and defendants' experts did not suggest that they were an insubstantial portion
of the entire relevant scientific record. The case-control studies here
consistently reported statistically significant associations of talc with ovarian
cancer, as did one of the three cohort studies and the two most recent of the
five pooled or meta-analyses. Some of the pooled or meta-analyses included
both cohort and case-control studies, and they did not report a need to adjust
for perceived inferiorities of the latter. Furthermore, the five studies in this
record that were among the eight on which the IARC focused in its 2006
report, due to their "higher quality," were all case-control studies.
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Cramer's use of statistical analyses for each plaintiff's cancer, to account
for the contribution of talc, was consistent with the methodologies of the
numerous published studies in the record. Defendants' experts conceded the
migration of talc to the ovaries, and studies on which the judge himself relied
provided evidence of an inflammatory effect. The judge's suspicions regarding
Cramer's conclusions were therefore a judgment regarding their credibility.
The judge contrasted the willingness of plaintiffs' experts to testify in
2016 that the legal standard had been satisfied with their prior reluctance to
conclude that the evidence of talc's association with ovarian cancer constituted
scientific proof. Accordingly, he opined that Cramer relied on a "made -for-
litigation methodology" and Colditz issued an "ipse dixit[.]" But the legal
standard that governed the Rule 104 hearing and decision is not absolute
scientific proof. The issue is methodology, and the reliability of the data upon
which the work relied.
Defendants' experts generally challenged plaintiffs' experts'
inflammation hypotheses, offering alternative biological mechanisms for
ovarian cancer that did not involve talc. It is not improper for a court to expect
an expert to demonstrate the soundness of his or her methodology "from the
perspective of others within the relevant scientific community." Accutane, 234
N.J. at 399-400. When "the relevant scientific literature contains evidence
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tending to refute the expert's theory," the expert may not decline to
"acknowledge or account for" it. Rezulin, 369 F. Supp. 2d at 425 (elaboration
of the point cited by Accutane, 234 N.J. at 400).
The judge adopted evidence from defendants' experts about talc's
ameliorative effect on lung cancer as if it had been proven generally for all
solid cancers including ovarian cancer. However, no laboratory research in the
hearing record demonstrated that lung and ovarian cancer are similar,
particularly in their responses to talc, and all the experts agreed that a
carcinogen could cause cancer in some organs but not others.
Cramer's report relied on a laboratory research study regarding the
inflammatory effect on ovarian cells when talc is placed directly upon them.
The judge ignored that finding despite attaching a summary of that study to his
opinion. In addition, the judge relied on the absence of an association between
talc and other cancers of the reproductive tract to conclude that the
inflammation hypothesis was invalid, when the record did not establish that t he
association's absence and the hypothesis were irreconcilable.
The judge accepted the defense experts' opinion that mutations in critical
genes is the mechanism that causes cancer, and hence since talc does not cause
mutations, it cannot cause cancer. Although a factfinder can certainly accept
all, some, or none of an expert's findings, City of Long Branch v. Liu, 203 N.J.
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464, 491 (2010), that was not the judge's role at the Rule 104 hearing. His task
was to assess the soundness of the methodology of plaintiff's experts and the
soundness of the "underlying data and information." Accutane, 234 N.J. at
390. Instead, he chose between plaintiffs' and defendants' experts based on hi s
assessment of the credibility of their opinions.
We are satisfied that plaintiffs' experts adhered to methodologies
generally followed by experts in the field, and relied upon studies and
information generally considered an acceptable basis for inclusion in the
formulation of expert opinions. Suppression of their testimony was an abuse
of discretion.
That reversal means there is a dispute of material fact. Thus, summary
judgment dismissing plaintiffs' complaints must also be reversed. See R.
4:46-2(c).
Reversed. We do not retain jurisdiction.
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