LOS ANGELES – During opening arguments in a lawsuit to determine if Johnson & Johnson baby powder caused plaintiff Carolyn Weirick to develop mesothelioma, a rare form of terminal cancer, her lawyer argued on Monday that the company tried to hide from the truth.
The attorney for the defense however indicated the suit was a case of imagining things that aren’t there.
The trial in Los Angeles Superior Court is the latest in a series of high-profile trials across the country accusing talcum powder maker Johnson & Johnson of causing cancer in consumers who used its baby powder and a product powder for adults called Shower to Shower. In July the company was hit with a $4.69 billion judgment in a St. Louis Circuit Court in favor of 22 women plaintiffs who claimed they developed ovarian cancer from the powder.
Johnson & Johnson attorneys are appealing that decision.
“This case is about trust,” Jay E. Stuemke with the Dallas law firm of Simon Greenstone Panatier the attorney for Weirick told the jury. “This is about a breach of this trust.”
Stuemke said trust had been a central theme of Johnson & Johnson for over a hundred years of the company’s history, based on the image of a mother and child.
“This connection they (J&J) sought to make deliberately,” Stuemke said, adding that company literature had described the baby powder as the purest substance, repeated in advertising many times over the years.
He asked, what is talc?
“It’s a mineral,” Stuemke said. “A rock, you dig it from the ground.”
Stuemke said a talc mine in Ludlow, Vermont had for years provided J&J with talc for baby powder where it was turned into powder by a company named Imerys Talc America based in San Jose. Talc in rock form was crushed and turned into powder, then packaged and made into baby powder and cosmetics.
“It’s more than it seems to be because those (talc) rocks have impurities in them---like a piece of steak has fat,” Stuemke said.
He exhibited for the jury a slide which stated that the content of asbestos in baby powder can range from 50 percent to 0.2 percent by weight.
“Those are not my words, those are the words of Imerys Talc in a document they submitted to the federal government in 1964,” Stuemke said. “Talc is not as pure as people would like to think.”
There are six forms of asbestos including tremolite and anthrophylite, Stuemke explained.
“This is not about geology, this is about biology,” he said. “When asbestos causes cancer, what gets into your lungs are microscopic fibers."
Exhibiting a bottle of Johnson & Johnson baby powder, Stuemke said the contents under testing had been found to contain 6 million asbestos fibers.
Shown on a screen for the jury the displayed asbestos fibers looked like needles.
Stuemke said knowledge that asbestos causes cancer has been around for decades. He disputed a written statement from Johnson & Johnson that said the company prioritized people over profits.
“That was not consistent with how they (J&J) conducted themselves,” he said.
Stuemke said the company could have stopped selling talc and optioned for the safety of corn starch as a baby powder. He added the company could have shared knowledge of the risks, but instead opted to conceal it.
“They had a large involvement in a talc mine,” he said. “They knew it would be bad for business. You can’t process asbestos out of talc.”
Because of her condition Stuemke said Weirick would have difficulty attending the trial and asked the jury to consider her potential loss from the disease - the four teenage children growing up who could be deprived of their mother.
“There is no question there is asbestos in that talc,” Stuemke told the jurors, “and there is no question it caused this disease (mesothelioma). I’m convinced you’ll find in our favor.”
The attorney for the defense Chris Vejnoska of Orrick Herrington & Sutcliffe based in San Francisco was allotted less time for opening remarks on the trial's first day. He is to resume on Aug. 21.
He said Stuemke’s opening remarks focused a lot on asbestos.
“But Mrs. Weirick’s cancer was not caused by asbestos,” he said. “The Johnson & Johnson powder was not contaminated with asbestos. Johnson & Johnson went to extraordinary lengths to ensure that its products were not contaminated.”
Vejnoska said Johnson & Johnson did exhaustive testing to make sure its products could be trusted by the public.
“Johnson & Johnson tested talc from beginning to end and sent it to the very best experts it could find, from scientists and researchers to universities and government,” he said. “All those tests came back showing no asbestos. It (J&J) knew asbestos was a health hazard, that information has been known for years. Johnson & Johnson was determined to maintain trust and constantly sampled tens of thousands of samples from its talc.”
Vejnoska said witnesses for the plaintiffs set to appear would include officials who had never tested talc except in a courtroom.
“Sometimes cancer just happens, that’s not an excuse,” he told the jury. “It may seem unfair, but your job is to listen to the evidence and decide the facts. You have heard that Johnson & Johnson acted irresponsibly, that it kept information secret, you heard that it lied.”
Vejnoska said the evidence would show instead that cosmetic talc does not cause mesothelioma and that Johnson & Johnson products are not contaminated.
Of 3,200 cases of the disease reported annually, he said 704 cases were women.
Vejinoska added that Weirick showed none of the key marker symptoms of asbestos exposure.
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