J&J lawyer points to cancer-free talc millers, miners; First plaintiff witness called in Alameda trial

By John Sammon | Jan 9, 2019

ALAMEDA – Attorneys for baby powder maker Johnson & Johnson wrapped up opening arguments Tuesday as the attorney for the plaintiff Terry Leavitt called the first expert witness attempting to prove that talc use caused Leavitt’s mesothelioma.

The trial in Alameda Superior Court is the first such trial in Alameda County, an area of Northern California where lawsuits against Johnson & Johnson have originated. Earlier cases that have gone to trial were often held in Los Angeles courts.

Hundreds of suits are pending against the company, most filed by women blaming ovarian cancer on the talc powder. However, in recent months more cases alleging mesothelioma, a much more rare and deadly form of cancer, have been filed.

The trial is being streamed courtesy of Courtroom View Network.


Brown  

Michael Brown, defense attorney for the law firm of Nelson Mullins Riley & Scarborough of Baltimore, Md., said there was no evidence Johnson & Johnson engaged in a 60-year conspiracy to harm the public. He said that cancer can be caused in many different ways.

“It makes no sense at all,” he told the jury. “Some people have a genetic pre-disposition to cancer. Sometimes people who never smoked get lung cancer. It can be a spontaneous mutation of cells and can happen for no known reason.”

He said evidence will show that people who routinely work with talc powder such as the miners who mined it from the ground and the millers who crushed it into powder form did not develop mesothelioma.

“Johnson and Johnson has been making baby powder since 1894,” Brown said. “We agree a company has a responsibility to make sure their products are safe, and 170,000 tests were done. No asbestiform was found."

Brown said talc taken from one source mine in Vermont and used in J&J baby powder had been tested by labs including the University of Cardiff, Wales, U.K., the McCrone Group lab in Illinois, Harvard School of Public Health and the National Institute of Occupational Safety and Health (NIOSH) in Washington D.C.   

“Talc is not asbestos,” he added.

Brown said talc is even used on patients during medical surgery to help dry up body fluids during procedures.

He cited the possibility that Leavitt could have contracted the disease from living in the vicinity of a mining operation between 1971 and 1993 that processed a mineral called vermiculite and richterite for use by the Flintkote Co. in the making of roofing materials.

Leavitt’s attorney Joseph Satterley, a partner with the Oakland-based law firm of Kazan McClain Satterley & Greenwood, called his first witness, Dr. James Webber, an environmental health scientist from Oregon.

Webber told the jury he studied the dynamics of how particles in the air impact human beings.

“What is talc?” Satterley asked.

“It is the softest of minerals because it forms in plates,” Webber said.

Asbestosis, Webber noted, is the accumulation of fibers in the lungs leading to the progressive reduction in pulmonary efficiency.

“Mesothelioma is a cancer of the linings of the lungs,” he said.

Satterley exhibited for the jury a projected slide that said “Vermont talc is derived from altered serpentine, a natural host for asbestiform minerals.”

Defense counsel, in the questioning of plaintiff witnesses in prior trials, have questioned Webber’s qualifications as an expert.

“You’re not a mineralogist?” Webber was asked.

“That’s correct,” he answered.

“You’re not a geologist?”

“That’s correct.”

“You never published a (research) paper on industrial hygiene as it relates to talc and asbestos?”

“That’s correct,” Webber answered.

“You’re not a pathologist?”

“True,” Webber responded.

“You’ve never published an epidemiological study in connection with talc or asbestos, true?”

“Correct.”

However, Webber told Satterley that testing done by Dr. Alice M. Blount, a Rutgers University researcher in 1991 using a new method of separation, had discovered asbestos in samples.

“She (Blount) developed a heavy density liquid to separate asbestos from talc,” Webber said. “It caused the talc to float to the top. This was a more sensitive way to look at it. She found tremolite asbestos in the material.”

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Johnson & Johnson Kazan McClain Nelson Mullins Riley & Scarboroug

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