LOS ANGELES – The attorney for plaintiff Carolyn Weirick during closing arguments asked a jury for $28 million in damages for his client over allegations that Johnson & Johnson Baby Power caused her to develop asbestos-related disease mesothelioma.
The defendant contends there was no asbestos in Weirick’s baby powder and her disease was a spontaneously developed tumor.
“It’s your job to access the facts in this case and apply the law to decide what’s fair and reasonable,” Jay Stuemke of Simon Greenstone Panatier Bartlett, the attorney for Weirick, said.
The trial in the Los Angeles Superior Court is being streamed courtesy of Courtroom View Network.
During Sept. 13's session, Stuemke held a bottle of Johnson & Johnson Baby Powder for the jury to see.
“This is about trust,” he said. “When I bought this, I should be able to trust this is safe - that there’s no asbestos in there. We should trust the product in this bottle has been properly tested.”
Weirick is suing Johnson & Johnson over allegations the baby powder she used for 40 years caused her to develop mesothelioma, a rare and deadly form of cancer of the lungs. Her case is one of hundreds filed by women against the cosmetic talc powder company across the country, though most allege the powder caused them to suffer ovarian cancer.
A co-defendant in the suit is Imerys Talc America, a San Jose mining company that supplied J&J in recent years with its talc powder.
“Carolyn Weirick will die early from her mesothelioma,” Stuemke said. “How early no one can say, she has already survived past the normal life expectancy for someone with mesothelioma.”
Stuemke said some of the finest surgeons in the world, such as Dr. David Jablons at the University of California San Francisco, Dr. John C. Maddox and asbestos expert Dr. Arnold Brody, had warned about the dangers of asbestos in talc.
Stuemke exhibited microscopic findings in Weirick’s bottle of baby powder that he said under testing revealed 25,000 asbestos fibers per gram of talc powder.
“Dr. Longo (William Longo, microscopist for the MAS lab in Georgia) found 6 million fibers in that bottle,” Steumke said, calling it “direct evidence.”
Stuemke said sampling and testing of talc mines in Vermont and Italy that supplied Johnson & Johnson with the crushed rock powder for their product had been found to contain asbestos and also stated that some samplings taken in Vermont contained more than 85 percent in some samplings.
“There is no safe level of exposure to asbestos above background (ambient low) levels,” Stuemke said. “They (Johnson & Johnson) told customers they could wash out the asbestos. This is fraud.”
Stuemke said Johnson & Johnson had produced defense witnesses who were paid to say what they said during testimony and falsely contending the talc powder had no asbestos. One example, he said, was Dr. Matthew Sanchez of the RJ Lee Group, a Pennsylvania materials testing lab.
“Dr. Sanchez made $20 million testifying,” Stuemke said. “Why are they (J&J) willing to pay so much, because he (Sanchez) is willing to come and testify as he did.”
Steumke said the defense witness testimony amounted to courtroom argument and not the truth.
“They’re willing to say whatever it takes for money,” he said.
Describing the pain and mental suffering of his client, the loss of enjoyment of life, grief and anxiety, humiliation and emotional stress, Stuemke appealed to the jury.
“Carolyn can’t be Carolyn anymore,” he said. “She wants to work but can’t. Her sons don’t know what kind of cancer she has. She fought to have these children and now they’re being taken away. They had their whole life in front of them; now it’s stopped.”
Chris Vejnoska of Orrick, Herrington & Sutcliffe, the attorney for Johnson & Johnson, quoted researchers who said the product was free of asbestos.
For years, miners had dug the talc rock that supplied the powder and this resulted in no cases of mesothelioma, Vejnoska noted.
“The mill and the mine - that's where it starts,” he said. “It doesn’t magically change once it’s in a bottle. This is massive exposure compared to use in the home of supposedly contaminated talc. Not one single case of mesothelioma. Use your head.”
Vejnoska cited Dr. Richard Attanoos, a pathologist at University Hospital in Cardiff, Wales.
“There is not a single study showing that cosmetic talc causes mesothelioma,” Attanoos had written.
“He knows what causes mesothelioma,” Vejnoska said.
Dr. David Weill, a lung disease specialist, agreed no cases of mesothelioma had been found among miners of talc.
A hot point of the trial has been the argument whether cleavage fragments (mineral particles) contain asbestos. Vejnoska said Sanchez testified that asbestos has to form as asbestos, it can’t be created by crushing non-asbestos rock.
“Asbestos has a high-tensile strength, but non-asbestos does not,” Vejnoska said. “Those fibers break. The non-asbestos can’t get into the lungs.”
In addition, Vejnoska indicated elongated fibers can appear to be asbestos without being asbestos and can be misidentified. He said according to the Internal Agency for Research on Cancer (IARC), when minerals are not asbestiform, they are referred to as cleavage fragments.
Vejnoska said the plaintiff’s case was based on unrealistic assumptions, for example Longo, a witness for the plaintiff, determining that virtually everything he found was an amphibole mineral form of asbestos.
He said the testing of Weirick had detected no “objective markers” indicating long-term exposure to asbestos, such as the presence of pleural plaques, collagen material indicating exposure for perhaps 20 years after inhalation of fibers.
“Dr. Weill said in 75 percent to 95 percent of cases, you see plural plaques in mesothelioma,” Vejnoska said. “No pleural plaques means something.”
Attanoos had stated 60 to 90 percent of mesothelioma cases in women were spontaneous in nature, Vejnoska explained.
“The plaintiff has the burden of proof,” he said. “It has to be more likely to be true than not true.”
Vejnoska asked that given Johnson & Johnson’s exhaustive testing of its talc both in-house and by outside independent labs, “How can a zero tolerance policy (for asbestos) be bad?”
“They (J&J) tested every day every shift,” he said. “The question is, did Johnson & Johnson act in a despicable manner? You can make fun of their credo (to insure safety of talcum products worldwide), but it’s on the walls and every employee knows what they owe to their customers.”
Two researcher witnesses for the defense, Dr. John Hopkins and Julie Pier, used Johnson & Johnson baby powder on themselves and with their family members, including Pier’s four children when they were infants, Vejnoska recalled.
“What does your common sense tell you when people who work with it (talc) in its raw state (miners) - no one has gotten sick?” he asked.
Vejnoska said baby powder is a small part of the Johnson & Johnson business, but the company is proud of it.
He asked how the company could convince outside independent labs to fabricate findings of no asbestos?
“How did they get these people to put their reputations on the line?” Vejnoska asked. “Would the Food & Drug Administration (FDA) say, ‘We’ll help you kill babies if you’ll pay us a modest fee?' Did Johnson & Johnson powder cause Mrs. Weirick’s mesothelioma? I think I’ve told you why not.”