Fifth day at talc trial, sides continue to spar over cause of woman's mesothelioma

By John Sammon | Jan 16, 2019

ALAMEDA – Two noted researchers called as expert witnesses by the attorney for plaintiff Terry Leavitt said on Tuesday that samples of Johnson & Johnson baby powder had been found to contain asbestos although defense attorneys countered that one of them seemed a late-comer to deciding talc was dangerous.

“In an article in 1982 you wrote that it (talc powder) was safe,” Michael Brown the attorney for Johnson & Johnson said during cross-examination of Dr. Jerrold Abraham, a Syracuse, New York-based pathologist who studies lung and dust-related diseases.

“It was not considered a hazard at that time (1982),” Abraham responded. “We used it (talc powder) on our own baby. If I’d known then what I know now…”

“Move to strike (the comment),” Brown interrupted.

Brown attempted to portray Abraham as a paid witness on the hazards of talc powder only in recent years after he had been retained for plaintiffs in asbestos lawsuits.

However, Abraham countered that he changed his opinion on the dangers of asbestos in baby powder after evolving research and the findings of experts in the field.

The trial in the Alameda Superior Court is being streamed live courtesy of Courtroom View Network.

Leavitt, who used J&J baby powder from the 1960s until she stopped in 1998, is suing Johnson & Johnson and its talc supplier Imerys Talc America alleging asbestos in talc powder caused her to develop mesothelioma, a rare and fatal cancer of the linings of the lungs.

During Tuesday’s session, Leavitt’s attorney Joseph Satterley asked Abraham for his opinion on the woman’s condition.

“She has malignant mesothelioma,” Abraham answered.

Abraham said if the disease is caught early enough and radical surgery performed, some patients can live several years or longer.

“But most people with mesothelioma die within a year or two after diagnosis,” he said.

Satterley asked if testing of Johnson & Johnson baby powder had detected asbestos? 

“Yes, it was a clear demonstration it did contain detectable asbestos fibers,” Abraham said.

“Did you find asbestos in Mrs. Leavitt’s tissue?”

“Yes.”

"In both the lung tissue and lymph tissue?"

"Yes."

“What is the cause of Mrs. Leavitt’s mesothelioma?”

“It’s her asbestos exposure,” Abraham said. “The recognition is based on the (patient’s) history."

“If someone said Mrs. Leavitt’s mesothelioma was idiopathic would you agree?” Satterley asked.

“No,” Abraham answered.

“If they said it was spontaneous?”

“If you put blinders on you might call it that,” Abraham said.

Satterley sought to neutralize a defense argument that Leavitt had for years lived next to a factory processing vermiculite, a material used in insulation and roofing materials, as a possible cause of the disease.

Abraham noted that it was an additional exposure, but cumulative exposure was key. “It (disease) is a dose-responsive relationship. The more exposure, the greater the risk,” he said.

Satterley asked if the latency period of the disease, the time from first exposure to illness, was of importance.

“It’s really important,” Abraham responded. “Mesothelioma usually doesn’t get detected within 10 years. It doesn’t show up with the first cell. There is usually 10 to 15 years minimum latency.”

Abraham reported he was being paid $800 per hour as an expert witness.

Under cross examination, Brown asked Abraham how many fibers being inhaled it would take to develop mesothelioma? Abraham said it was unknown.

“There is no known minimum number,” he said.

“In your opinion did it (mesothelioma) come from Johnson & Johnson baby powder?” Brown asked.

“The fibers don’t have J&J labels on them,” Abraham said.

Brown noted that members of the general population can have a variety of minerals in their bodies from breathing air including chrysotile, tremolite or anthophyollite - without getting mesothelioma.

“Is that fair?” he asked.

“Those are generally short fibers not the long fibers we found in Leavitt’s tissue,” Abraham said.

“You never talked to her (Leavitt’s) doctors, correct?” Brown asked.

Abraham agreed.

“You never met with Mrs. Leavitt’s family?”

“Correct,” Abraham said.

Brown also took issue with a finding by Abraham that a fiber in his report had been described as “probable chrysotile,” a common form of asbestos, or in the case of another fiber, "probable tremolite."

Abraham said a selected area electron diffraction (SAED) microscope that could have made a definitive determination on such fibers was unavailable for use at the time. 

A filmed pre-trial deposition featured Alice Blount a Rutgers University researcher. Blount recounted the testing of J&J powder she conducted using a heavy density liquid separation process.

The results were published in a scientific paper in 1991.

“Did you find tremolite asbestos in Johnson & Johnson?” Blount was asked.

“Yes.”

“Did you consistently find asbestos in it?”

“Yes.”

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