ALAMEDA – Trial opened Monday in Alameda Superior Court with a plaintiff claiming that exposure to Johnson & Johnson baby powder caused her to develop mesothelioma, an extremely rare and deadly form of cancer.
The case is one of hundreds pending in recent months against the company whose officials have steadfastly denied their baby powder - the product for which they are best known though its but a small part of the J&J business - contains cancer-causing asbestos.
Most cases have been brought by women claiming the baby powder gave them ovarian cancer but accusations of mesothelioma are on the increase in lawsuits.
The trial is being streamed live courtesy of Courtroom View Network.
During opening remarks, the attorney for plaintiff Terry Leavitt said his client is dying of mesothelioma and that asbestos had been confirmed in testing of biopsy tissue.
"In our country it’s okay to make a product and to make a profit,” Joseph Satterley of the Oakland-based Kazan McClain Satterley & Greenwood law firm told jurors. “But when you make a product that is dangerous and harmful and you know about it and don’t adequately warn people - you’re responsible.”
Originally from the Philippines, Leavitt and her husband Dean McElroy live in the Oakland area and have two young daughters. She was diagnosed with mesothelioma in 2017.
“This (mesothelioma) is a preventable disease,” Satterley said. “If you’re not exposed (to asbestos) you don’t get it.”
Satterley said evidence would be presented that would show the J&J baby powder has asbestos in it.
“It’s not a situation where Johnson & Johnson intentionally put asbestos in,” he said. “Talc and asbestos grow together in the earth. They’re dug up together and made into the product.”
Satterley added that 50 bottles of the powder over the past few years had tested positive for asbestos. He recounted Leavitt’s use of the product starting as a child when her mother applied the powder and later as an adult putting it on her face as a base for makeup.
“We’re going to present evidence that Johnson & Johnson knew of the asbestos risk, they admitted they knew asbestos could cause cancer back in the 1960s," Satterley said. "They could have warned. That’s why we’re here, a wrong has been committed.”
Brad DeJardin, attorney with the Los Angeles-based Dentons Law firm defending Johnson & Johnson and its talc supplier Imerys Talc America, agreed that Leavitt would die from mesothelioma.
“You have to take your sympathy and put it aside,” he told the jury. “You must consider the evidence. The science will show that talc is safe and not harmful.”
He noted that talc, a mineral, is used in all kinds of products from gum to candy, creams and laundry detergent.
Studies by groups including the National Institute for Occupational Safety and Health (NIOSH) had found no asbestos in the talc taken from mines in Vermont. Neither had a geologic study found asbestos taken from another source in Italy.
“Miners of the talc have been studied,” DeJardin said. “These are the people who pull the talc out and it’s dusty, not a clean process. Millers crush the (talc) rock. They’re exposed. What did studies find? Zero mesothelioma from the mining and milling of talc that becomes Johnson & Johnson baby powder.”
DeJardin said Imerys had supplied Johnson & Johnson with high quality talc that met standards of the U.S. Pharmacopeia, a nonprofit global health organization.
He said the plaintiff attorney would attempt to portray non-asbestos minerals as asbestos in nature including a related mineral, tremolite.
“Tremolite comes in non-asbestiform and asbestiform,” DeJardin said. “There are two families. Asbestos is very rare, 99 percent of tremolite is non-asbestos. No expert is going to come in here and say they can take a non-asbestiform mineral and make it into asbestos.”
DeJardin added that testing of minerals by plaintiff expert witnesses such as Dr. William Longo, an electron microscope researcher with the MAS Lab in Georgia, had been flawed, Longo counting anything long and skinny as an asbestos fiber.
He said the burden of proof is on the plaintiff.
“There will be no credible evidence Imerys ever sold asbestos-contaminated talc to Johnson & Johnson and did not cause Mrs. Leavitt’s mesothelioma,” DeJardin said.