ALAMEDA – An expert witness appearing on behalf of plaintiff Terry Leavitt told a jury on Thursday the testing of Johnson & Johnson baby powder for possible contamination with asbestos was imperfect and that previous findings of no asbestos were likely wrong.
“It’s not reliable,” Dr. James Webber a microscope researcher and an environmental health scientist told the jury regarding the testing. “They had been seeing it (asbestos) but not reporting it.”
Live coverage of the trial is being streamed courtesy of Courtroom View Network.
Leavitt, the mother of two children, is suing Johnson & Johnson and its talc powder supplier Imerys America for what she alleges is the asbestos-contaminated baby powder she said caused her to develop mesothelioma---a rare form of cancer of the lining of the lungs.
The disease is incurable and fatal.
During Thursday’s session plaintiff attorney Moshe Maimon with the New Jersey-based law firm of Levi Konigsberg questioned Webber about the nature of the testing done on J&J baby powder by a number of labs including that at the McCrone Group in Illinois.
Webber said chrysotile, an asbestos-related mineral, had been found in material samplings.
“Is the fiber count significant?” Webber was asked.
“It would be a concern to have chrysotile remaining in the (baby powder) product,” he said.
The documentation exhibited by Webber indicated acknowledgement that asbestos fibers had been seen in samples taken from Hammondsville, Argonaut and Rainbow mines in Vermont.
Webber was asked if based on his training and experience, he could confirm asbestos fibers had been found in samplings of the powder taken from the mines between the years 1966 and 1988?
“It’s clear there was asbestos in the talc sources,” he said. “It indicates a long history of contamination in those mines. The products were contaminated over several decades.”
A slide exhibited for the jury said Johnson & Johnson baby powder and an after-shower product for adults called Shower to Shower between the years 1960 and 2003 had tested positive for asbestos.
A Rutgers University researcher Alice M. Blount also concluded in a 1991 report she believed Vermont talc used in the baby powder contained trace amounts of asbestos.
Webber agreed it was possible asbestos fibers could been seen under microscope but not reported or could occur below the quantifiable detection limits and so go unreported in testing such as that done at McCrone.
“The testing I have seen indicated it (asbestos) was present from 1971 up to the 1990’s,” Webber said.
“Why did the tests fail?” Webber was asked.
“They were unreliable because of lack of sensitivity,” he responded.
Webber noted he was being paid $500 per hour to testify.
Under cross examination by defense co-counsel Matt Ashby of the Orrick law firm based in Los Angeles, Webber said he had been involved in a dozen asbestos-related cases in the past year and had earned an approximate $125,000.
“Talc is not asbestos, correct?” Ashby asked.
“Correct!” Webber answered.
“It can form in asbestos and non-asbestiform?”
“For a mineral to be asbestos it must grow that way?”
“If you just see the word anthophyllite, you shouldn’t assume that it’s asbestos,” Ashby said.
“Yes,” Webber answered.
“The same for tremolite?”
Webber agreed his definition of asbestos was different than that used by the Occupational Safety and Health Administration (OSHA).
“Mine is consistent with protocol for measuring (particles) in the air,” Webber said.
Ashby said the International Agency for Research on Cancer (IARC) identified six minerals including anthophyllite, actinolite, chrysotile, and tremolite that may occur in talc deposits and occur more commonly in non-asbestos form. Such minerals may also be elongated resembling an asbestos fiber without being asbestos.
When they are not asbestos-form, they may be identified as cleavage fragments, pieces of rock or mineral broken off. This does not mean they are asbestos, Ashby maintained.
“Did you state that cleavage fragments are not considered dangerous?” he asked.
“If that’s what I said in the past,” Webber responded.
“You can’t point to any study that says cleavage fragments cause mesothelioma?” Ashby asked.
“Correct,” Webber said.
Ashby produced a 1987 document from officials of the McCrone lab that expressed confidence their testing revealed no asbestos in the baby powder.
“We have continually monitored samples using electron microscopy,” the document read. “We are satisfied the product is free of asbestos and that has always been our opinion based on over 15 years of closely examining the product.”
Judge Brad Seligman is presiding.