Defense witness in J&J trial says Weirick had bad luck; Disease not caused by baby powder

By John Sammon | Sep 13, 2018

LOS ANGELES - Attorneys defending Johnson & Johnson rested their case Wednesday after portraying Carolyn Weirick as a victim of bad luck in contracting mesothelioma, not from the baby powder she claimed in her lawsuit contained asbestos and gave her the rare and deadly disease.

“There are people who don’t smoke who develop lung cancer,” said Dr. David Weill, a Stanford University pulmonary medical doctor who specializes in lung diseases. “With any tumor you can think of there are people who just had bad luck. You don’t have to be exposed to anything to develop cancer.”

Weirick’s attorney Jay Stuemke countered by seeking to portray Weill, a witness called by the defense, as a long-time highly-paid industry mouthpiece for numerous corporations besides Johnson & Johnson.     

Trial coverage in the Los Angeles Superior Court is being streamed courtesy of Courtroom View Network.

From the start of the trial now in its fourth week defense attorneys have sought to convince the jury that Weirick’s mesothelioma came about not from asbestos in the baby powder she used for decades, but a spontaneous tumor growth perhaps resulting from an inherited family history of cancer.

Stuemke has made a case that Johnson & Johnson avoided more detailed testing of their talc product available from the 1970s on, concerned that discovery of asbestos would hurt their business, and ignored the warnings of researchers of the dangers of asbestos in talc powder.  

Under questioning by the attorney for Johnson & Johnson Chris Vejnoska, Weill said he had been asked to appear to answer the question if Weirick had mesothelioma and if her talc powder use was the cause.

“Does Mrs. Weirick in fact have mesothelioma?” Vejnoska asked.

“Yes, in my view,” Weill said.

“In your opinion what caused Mrs. Weirick’s mesothelioma?”

“I think it was a spontaneous mesothelioma,” Weill said. “Any exposure she may have gotten from talcum powder did not elevate her risk.”

Weill agreed with a slide exhibited by Vejnoska stating that background or ambient (low dose) exposure to asbestos does not cause disease, exposure to cosmetic talcum powder does not cause mesothelioma, and non-asbestos minerals don't cause it either.

Weill said everyone is exposed to some low forms of asbestos including particles breathed in the air.

Vejnoska asked if every exposure counts.

“I don’t think it does in terms of its ability to cause disease,” Weill answered. “The lungs have a sophisticated method to defend themselves.”

Weill indicated low-dose exposure in an occupational setting would also rarely be a problem.

Attorneys in the case have argued whether cleavage fragments (mineral particles) that are released when rock is quarried and ground up for use contain asbestos or are non-asbestiform in nature.  

“Is a cleavage fragment a non-asbestos mineral?” Vejnoska asked.

“Yes,” Weill said. “It (cleavage fragment) is derived from a non-asbestos source.”

Weill described the process by which cells in the human body mutate to form a cancerous growth.

“With cell mutations cells keep dividing, it’s change in the genetic structure,” he said. “In good health, cells have ways to repair themselves. One of the ways cells repair a genetic mutation is they kill themselves----it’s suicide.”

The trouble comes Weill related when cells can’t repair themselves and keep dividing and mutations continue to happen out of control.

Under cross examination Stuemke asked Weill if he had treated as many as 50 people with mesothleoma.

“That’s about right,” Weill said.

“You have testified in asbestos litigation since 2002?” Stuemke asked.

“That’s correct,” Weill answered.

“You charge $600 per hour (testifying)?”

“That’s right,” Weill said.

“Since 2014 you’ve been earning a million dollars a year testifying on behalf of defendants in asbestos litigation, right?” Stuemke asked.

“That’s right,” Weill said.

Stuemke recited a list of companies Weill had testified for as a defense witness including Union Carbide, Illinois Central Railroad, Georgia Pacific, Kelly-Moore (paints), Honeywell (auto brakes), Toyota, Chrysler, Napa (brakes), and others.

“You also testified on behalf of Halliburton (oil company) in a lawsuit brought by United States soldiers, against them, related to lung disease,” Stuemke said.

“That right,” Weill responded.

“All the times you’ve testified in these asbestos litigation matters you never testified that exposure to any of the products made by these companies hiring you played any part at all in causing disease, right?”

“That’s right,” Weill said.

Stuemke disputed a slide that had been projected earlier by Vejonska which stated that testing of Weirick had not found any “pleural plaques,” a deposit of collagen fibers indicating long-term exposure to asbestos. He contended Weill had identified a pleural plaque in another patient but still said the cancer was spontaneous as he had with Weirick.   

“Nothing in medicine is 100 percent,” Weill responded. “I’m not saying there’s never been a spontaneous (case) that didn’t have a pleural plaque.”

“Doctor, one thing in medicine is 100 percent, that is, when you come in and render your opinions in a court room you’re always going to say that the company that hired you to do so----their product had nothing to do with disease, correct?” Stuemke asked.

"Sustained!” Superior Court Judge Margaret Oldendorf said, striking the comment as inappropriate before an objection from the defense attorney was made.

Vejnoska asked Weill if who he testified for ever changed his professional opinion.

"Not at all," Weill said.

The defense concluded its questioning of witnesses. The trial now goes into the jury instructions phase and closing arguments of the attorneys.  




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