Defense attorneys seek to undercut plaintiff expert in Johnson & Johnson baby powder asbestos trial

By John Sammon | Jan 22, 2019

ALAMEDA — In the third week of trial, attorneys for baby powder maker Johnson & Johnson attempted to undercut the expert testimony of a plaintiff witness by presenting documents from the 1970s saying its powder was free of asbestos.

The trial is being streamed live courtesy of Courtroom View Network.

Terry Leavitt is suing Johnson & Johnson and its talc powder mining partner Imerys Talc America alleging that asbestos in the talc gave her a rare cancer of the lungs. Mesothelioma is most always fatal within two years of diagnosis.

The case against Johnson & Johnson is one of hundreds pending across the country. Although most involve women claiming the product gave them ovarian cancer, the number of mesothelioma causes has been on the rise in recent months.

During Tuesday’s session in the Alameda Superior Court, Matt Ashby with the San Francisco-based law firm of Orrick, Herrington & Sutcliffe, the attorney for Johnson & Johnson, challenged the opinion of Dr. James Webber, an environmental health scientist called as a witness for the plaintiff.

“You based your conclusions on plaintiff documents that were selected for you?” Ashby asked.

“Yes,” Webber responded.

In prior testimony Webber had stated asbestos had been found in samples of Johnson & Johnson baby powder, but had not been reported in some cases because microscope testing methods in past decades had not been sensitive enough.

However, he agreed J&J’s testing methods had exceeded industry standards back in the 1970s using such devices as the transmission electron microscope (TEM) and the polarized light microscope (PLM).

“We could have a false possibility (discovering asbestos in baby powder) if there was lab contamination,” Ashby speculated.

“Yes,” Webber agreed.

Ashby asked Webber if thousands of tests of the J&J powder had been done in preceding decades.

“I would imagine so,” Webber responded.

Ashby added the company had done extensive testing of its talc powder taken from mines in Italy and Vermont.

Webber agreed that Johnson & Johnson had submitted its powder for testing in a variety of outside labs including the McCrone Group in Illinois, Princeton, New Jersey, University College in Cardiff (U.K.), and the Colorado School of Mines.

Ashby produced documents dating from the 1970s that showed a sampling of an adult powder product called Shower to Shower had been shown to be free of an asbestos-related mineral called chrysotile by an English researcher at Cardiff University, Dr. Fred Pooley.

“No amphibole was detected,” Ashby said. “Did I read that right?”

“Yes,” Webber said.

According to the University College finding, no chrysotile had been found while some tremolite had been found in a sampling, but it was reportedly of the non-asbestos variety.

Ashby also displayed a document stating that the National Institute for Occupational Safety and Health (NIOSH) had revealed there was no asbestos in a sampling of powder.

“They say no asbestos, correct?” Ashby asked.

“That’s what it says,” Webber answered.

Ashby told the jury a 1973 report notifying manufacturers of cosmetic talc baby powder that the products had been found to contain asbestos had been later proven to be “grossly wrong.”

A document correcting the impression stated, “A worst case estimate of exposure to asbestos from cosmetic talc would be less than the risk from environmental background levels of exposure to asbestos over a lifetime.”

Background levels are considered low amounts of non-deadly asbestos fibers all people breathe in the ambient air and which do not cause cancers.

“This was the FDA (Food and Drug Administration) saying it, right?” Ashby asked.

“Yes,” Webber said.

Moshe Maimon, Leavitt’s attorney with Levy Konigsberg of New Jersey, cross-examined Webber late in the session to confirm his opinion that asbestos fibers that had been discovered in testing met the proper aspect ratio (size height to width) for tremolite and anthophyllite fibers.

“Correct?” Maimon asked.

“Yes,” Webber said.

Webber agreed that Rutgers University researcher Alice M. Blount in 1992 found asbestos in ore samples for baby powder taken from mines in Vermont.

Judge Brad Seligman is presiding.

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