Date: April 17, 2024

Amended FRE 702 Creates Path for Expert Challenges in Talc Litigation

by Foley Mansfield
Date: April 17, 2024
by Foley Mansfield

Amended FRE 702 Creates Path for Expert Challenges in Talc Litigation

A recent update to the federal rules governing the use of expert testimony/evidence in federal court will widely impact how scientific and medical evidence is presented to juries in federal matters, including talcum powder litigation.

With the change to Rule 702 of the Federal Rules of Evidence (“FRE 702”), defendants in talc matters have been granted the opportunity to challenge whether plaintiffs’ experts can meet the high bar set forth in the amended rule. In Johnson and Johnson Talcum Powder Litigation, U.S. District Court Judge Michael A. Shipp in Trenton, New Jersey, held that Johnson & Johnson (“J&J”) could contest scientific evidence linking talc to ovarian cancer pursuant to Amended FRE 702.

The New Standard of FRE 702

All courts have a gatekeeping role when it comes to expert evidence. It is imperative that courts only allow sound scientific and medical evidence to come before a jury. The amendment to FRE 702, which became effective on December 1, 2023, provides courts with important tools for ensuring that the court’s gatekeeping role does not allow unreliable opinions.

Under Amended FRE 702, 1) a court may not admit expert testimony unless the proponent establishes its admissibility by a preponderance of the evidence, and 2) a court must find that an expert’s opinion follows from a reliable application of the methodology to the facts at issue before that opinion is heard by a jury.

In its notes, the Advisory Committee recognized the need for express language to correct certain courts’ failure to correctly apply the law under the prior rule: “[M]any courts have held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility. These rulings are an incorrect application of Rules 702 and 104(a).”

Impact on Talc Litigation and How We Can Help

Applying the new rule to talc matters, much of the scientific evidence put forth by plaintiffs’ experts can be expected to be placed under a more stringent test.

The impact of FRE 702 is complex and requires experience that very few firms possess. Foley Mansfield has been a leader in the defense of talcum powder claims across the country for more than a decade. With attorneys who represent cosmetics companies from New York to California, our firm has been at the forefront of the science of talcum powder litigation, identifying and working closely with the leading experts in the field.



Ebony S. Morris
Whitney Seltzer

Related Practice Areas:

Talc Litigation

Toxic and Mass Tort Litigation

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