By John Sammon | Sep 5, 2018


LOS ANGELES – In the lawsuit against Johnson & Johnson for the baby powder a woman claims gave her the deadly disease mesothelioma, attorneys for the plaintiff on Tuesday produced an email in 2000 that indicated talc suppliers were trying to exploit confusion over a possible designation of talc as a “human carcinogen.”

“We, the talc industry, dodged a bullet in December, based entirely over the confusion of the definition issue,” Richard Zazenski, regulatory affairs manager with Luzenac America said in the email. “Time to come up with more confusion.”

Carolyn Weirick is suing Johnson & Johnson alleging that asbestos in the baby powder she used caused her to develop mesothelioma. Her case is one of hundreds filed by women across the country against the baby powder maker, most alleging the talc powder caused them to develop ovarian cancer.

Luzenac America was a talc mining company acquired later by Imerys America, a San Jose-based co-defendant in the Johnson & Johnson trial and a mine company talc supplier to J&J. 

Zazenski (now deceased) referred to the possible designation of talc as a human carcinogen by scientists of the National Toxicology Program (NTP), part of the U.S. Dept. of Health & Human Services. At the time the NTP declined to make such a designation.

Coverage of the trial in the Los Angeles Superior Court is being streamed by Courtroom View Network.

In another document produced by lawyers for the plaintiff, talc officials added that mounting a successful challenge to an “NTP Talc Report” would be at best a difficult task.

“Finding fatal flaws in their logic will be difficult,” the document read.

“Did I read that correctly?” an attorney for the plaintiff asked Patrick Downey, an Imerys Talc America engineer and corporate representative, in a deposition filmed last April.   

“You did,” Downer responded. 

“You mine and process talc?” 

“That’s correct,” Downey responded.

“You send it to a manufacturer who makes it into a final product?”

“Correct!”

Downey agreed that officials of his company knew since the 1970s that asbestos can cause lung disease and the inhalation of asbestos fibers is a health hazard to humans. He also agreed that asbestos can cause mesothelioma.

He was asked if he agreed that fibrous amphiboles (minerals that can contain asbestos) including the minerals actinolite and tremolite were serious mineralogical contaminants.

“I wouldn’t characterize it that way because Imerys knows there are distinctions between mineral families of the non-asbestos variety which are common compared to the asbestos varieties,” Downey said.

Downey did not dispute a document that reported the finding of asbestos in seven samples of talc powder during one testing in the 1980s.

However, he challenged an allegation that Cyprus Minerals, also a talc supplier, in 1984 asked the Occupational Safety & Health Administration (OSHA) to allow trace amounts of asbestos in talc powder.

“I recall a memo that articulates quite a number of things in a discussion with OSHA,” Downey said. “I believe the proper context is to review the entirety of the document rather than to cherry pick one sentence from it.”

During the afternoon session Elvira Escuvero a native of Peru and Weirick’s married spouse after beginning as a nanny for her children testified about the impact of Weirick’s disease.

The couple were married in 2014.

Jay Stuemke, Weirick’s attorney, asked Escuvero what her reaction was when they found out Weirick had mesothelioma.

“She (Weirick) started to cry,” Escuvero said. “It was hard for me to understand. It was a terrible moment. We hoped it was a mistake (diagnosis).”

Escuvero described the helplessness she felt at watching her life partner in physical pain.

“It was so hard she could not see the future,” Escuvero said. “She wants to work, she loves her company, but she can’t.”

“How has this affected you?” Stuemke asked.

“I’m in a panic,” Escuvero responded. “I wonder what I’m going to do. I can’t leave Carolyn’s children to go for a visit to my relatives in Peru."

“Does she talk about the disease?” Stuemke asked.

“She (Weirick) refuses to talk about it,” Escuvero said. “She’s always in pain.”

At the end of the day attorneys for the defense of Johnson & Johnson questioned Escuvero about Weirick’s family history of cancer. 

Her father had prostate cancer and her mother breast cancer. One of the objectives of the defense in this and former J&J powder trials has been to maintain the cancer came from an inherited family history of the disease and not talc powder use.       

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