Defense makes non-asbestos claim while plaintiff attorney argues fragments are asbestos in J&J trial

By John Sammon | Sep 13, 2018

LOS ANGELES – Attorneys for the defense of Johnson & Johnson in a lawsuit alleging the company’s baby powder caused a woman to develop mesothelioma on Tuesday sought to establish that fragments in talc powder can look a lot like asbestos, and not actually be asbestos.

“Have you studied the stages of development in mesothelioma?” Warrington Parker, the attorney for Johnson & Johnson asked.

“Yes,” answered Brooke T. Mossman, a witness called by Johnson & Johnson, a pathologist with the Vermont University College of Medicine. Mossman has spent 40 years studying diseases of the lungs including mesothelioma.

“Are you able to testify that talc does not cause mesothelioma?” Parker asked.

“Certainly,” Mossman responded.

However, Jay Stuemke, attorney for plaintiff Carolyn Weirick, countered that a major health organization such as the Environmental Protection Agency (EPA) had considered the potential for fragments in talc to be asbestos.

Stuemke also appeared to portray Mossman as an industry hireling paid to say what she said under oath, a characterization defense attorneys refuted.

Weirick is suing Johnson & Johnson claiming asbestos in the baby powder she used for years caused her to develop mesothelioma, a terminal form of cancer of the lungs. Hundreds of cases across the country are pending against Johnson & Johnson mostly filed by women claiming the company’s baby powder gave them ovarian cancer. Weirick’s disease is much rarer.

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

Parker exhibited a slide that stated non-asbestos fragments do not cause mesothelioma and thin fibers (non-asbestos) do not cause mesothelioma.

In this and prior talc trials, argument has centered on whether cleavage fragments (mineral particles) that can be shaped like asbestos fibers are in fact asbestos---or not. Minerals found in talc powder such as tremolite and anthophyllite, which can also contain asbestos or not, has been another issue of dispute.          

Parker maintained in an additional slide that size dimension alone in examining fibers does not mean the fibers caused mesothelioma.

Mossman told a jury that asbestos fibers have traditionally been favored as a building material because of their tensile strength and flexibility.

“Asbestos fibers are able to align themselves with air currents (breathing) and they penetrate the lung,” she said. “There’s no flexibility by definition of non-asbestos fragments, and this is the reason they haven’t been employed by industry.”

Mossman added asbestos fragments also have iron composition that can trigger cancer causing events in a human body.

“A fiber doesn’t get into a cell,” she explained. “What gets into a cell are oxidants, these are molecules that stimulate proteins. The oxidant is generated by the asbestos fibers.”

Oxidants cause cell irregularities and can alter DNA, Mossman noted.

“Non-asbestos talc does not cause mesothelioma, is that your opinion?” Parker asked.

“Yes,” Mossman said.

Under cross examination Stuemke asked Mossman about her history of testifying as an asbestos defense witness.

“You testified in seven court cases, and that does not include depositions where you’ve given testimony on behalf of Johnson & Johnson,” he said.

“Yes,” Mossman agreed.

“You were in Portland (testifying) yesterday?”

“Yes,” Mossman said. “I’m getting exhausted.”

“In cases involving personal injury matters, is it correct you’ve always testified on behalf of corporate defendants---as opposed to the injured individual?” Stuemke asked.

“That’s correct,” Mossman said.

“In 2018, about half of your time was spent in talc litigation, correct?”

“Correct,” Mossman answered.

“You’ve earned about half a million dollars doing that work,” Stuemke said.

“Last year $168,000,” Mossman said.

Mossman agreed she had done a study partially funded ($90,000) by the talc industry through the University of Vermont.

“You haven’t done any animal inhalation studies with talc contaminated with asbestos have you?” Stuemke asked.

“No,” Mossman said.

“You’ve never done any work with tremolite asbestos have you?” Stuemke asked.

“Correct,” Mossman said.

Stuemke asked Mossman if she was aware of an EPA (Region 9 El Dorado Hills) report that looked at cleavage fragments having the same ability to cause disease as asbestos.

“No, I’m not aware of that,” Mossman said.

“Did you consider the opinion of the French Environmental & Occupational Health & Safety Agency when they determined cleavage fragments can cause mesothelioma and they expressly distinguished (reported) your own work?” Stuemke asked.

“I’m unaware of that document,” Mossman said.

Brad DeJardin, defense attorney for San Jose-based Imerys Talc America, a co-defendant in the suit along with J&J, appeared to refute the questioning by Stuemke alleging that Mossman was a professional defense witness. DeJardin said that given her expertise and depth of knowledge as a pathologist, if Mossman had once declined to represent the tobacco industry in lawsuits.

“You were approached by them (tobacco companies) and did not testify, correct?” DeJardin asked.

“As early as 1990 I was approached by them, and no,” Mossman agreed.

“All of your research is based on science?” DeJardin asked.

“Yes,” Mossman answered.

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