Plaintiff witness discusses asbestos fibers in ongoing talcum powder trial

By John Sammon | Jan 18, 2019

ALAMEDA – The difference between the asbestos fibers you have in your body and the asbestos fibers Terry Leavitt is alleging caused her to develop mesothelioma are their size, a pathologist said on Wednesday, adding that baby powder exposure is so far the lone indicator.

“Her (Leavitt’s) fibers are longer (in size),” Dr. Jerrold Abraham told a jury in the Alameda Superior Court. “It’s possible asbestos fibers could have come from other sources, but I haven’t seen those identified.”

Abraham referred to arguments presented by attorneys defending Johnson & Johnson that Leavitt had lived nearby a plant processing vermiculite, a mineral used in insulation and for roofing materials, and this was likely the source of her illness---not baby powder.

However, Abraham, testifying as a plaintiff expert witness for a second day, indicated that given Leavitt’s 30-year history of daily using J&J baby powder, that was likely the source.

The trial is being streamed courtesy of Courtroom View Network.

Leavitt is suing Johnson & Johnson and its talc provider Imerys Talc America for mesothelioma diagnosed in 2017. A rare cancer of the linings of the lungs, the disease is almost always fatal within one or two years of diagnosis.

Everyone breathes in some asbestos out of ambient air with urban locales generally a little heavier in concentrations. But such fibers in small dosage do not cause mesothelioma, Abraham explained. Approximately 95 percent of harmless fibers are less than 5 microns in size.

“The important thing is to see what the (fiber) lengths are,” Abraham said.

Deadly asbestos fibers are longer and can measure 20 microns under a microscope.

Tissue samplings of Leavitt showed what Abraham noted was “probable chrysotile” an asbestos-related mineral along with another called anthophyllite. One of the samplings contained an estimated 12,000 fibers per gram. The fibers were longer in length.

“These aren’t the things we find in the general population,” Abraham said. “This indicates (asbestos) exposure other than background (ambient air).”

Under cross examination, Johnson & Johnson attorney Michael Brown said Abraham assumed Leavitt’s exposure came from the baby powder and not the vermiculite plant near her home.

Abraham said he included the possibility of the factory along with the baby powder use.

“It (factory) could have contributed to the mesothelioma in addition to the exposures (baby powder) we know about,” Abraham said.

Brown noted that a determination on whether a fiber was harmless talc or athophyllite could not be made by Abraham because the microscope needed to evaluate its crystal structure called an electron diffraction microscope (SAED), was not used in his testing.

Abraham said to ship a sample to another lab for SAED testing would require a different filtering system than that created for the sample.

“You assumed she (Leavitt) had mesothelioma from talc,” Brown said.

“The reason is not based on just her history,” Abraham said, “the talc is known to be contaminated, and these fibers are the kind associated with talc.”

“Is there any other source of asbestos in Leavitt’s tissues?” Brown asked.

“I haven’t seen other sources but other sources would be included,” Abraham said.        

“The history is you didn’t talk to Leavitt,” Brown said.

“That’s correct that’s not my job as a pathologist,” Abraham said.

Following on the witness stand was Lee Poye, a Houston-based researcher who runs an independent work safety testing lab called J3 Resources. Poye said his function is to sit at a transmission electron microscope (TEM) and to look for regulated asbestos in samples.

He called asbestos minerals the “Holy 6,” as recognized by health organizations such as the Occupational Safety and Health Administration (OSHA), including chrysotile, amosite, crocidolite, anthophyllite, tremolite and actinolite.

“I receive blind samples I don’t know whether the sample is from a plaintiff or a defendant,” Poye said.

Poye was asked if he had found anthophyllite asbestos fibers in an adult talc powder product made by Johnson & Johnson called Shower to Shower.

“Yes I did,” he said.

Poye was asked how many asbestos structures were found in a Shower to Shower sample?

“I believe 40 to 50,” he said.

“Is that all?”

“Not by a long shot,” Poye said. “I took a tiny little pinch (sample of powder) from the jar.”

Poye said he was being paid $500 per hour to serve as a witness.

Judge Brad Seligman is presiding.   

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