Plaintiff witness in talc trial says asbestos detection methods used earlier weren't sophisticated enough

By John Sammon | Jan 24, 2019

ALAMEDA – Based on the testimony of a microscope researcher on Wednesday, Terry Leavitt may have developed mesothelioma because the limitations of detection methods used in the 1970s and later weren’t full-proof at the time.

“Six labs failed to see it (asbestos) by X-ray diffraction (XRD),” Dr. James Webber an environmental health specialist and a witness called by Leavitt’s attorney told a jury. 

XRD is a method of determining the nature of a crystal and used for analyzing powder and other substances; the technique was one of the methods used in the testing of Johnson & Johnson baby powder in past decades.

Leavitt is suing Johnson & Johnson claiming the baby powder she used for 30 years from 1970 until the 1990s caused her to develop mesothelioma, a rare and fatal cancer of the linings of the lungs.

The trial in the Alameda Superior Court is the latest in hundreds of cases pending against the baby powder maker and the first such mesothelioma case in Northern California. Most prior California cases have been held in Los Angeles courts.

The trial is being streamed courtesy of Courtroom View Network.

Webber indicated to a jury that whatever testing method of talc powder was employed in addition to XRD, including the use of a transmission electron microscope (TEM) or polarized light microscope (PLM), any method has limitations. That trace amounts of asbestos could occur and not be detected perhaps because a microscope wasn’t sensitive enough and the amount fell under the standards set at the time by heath watchdog organizations like the Occupational Health and Safety Organization (OSHA), is a possibility, he said.

Webber told plaintiff attorney Moshe Maimon that traces of asbestos had appeared in the final Johnson & Johnson product and had not been reported.

“Why did the tests fail to detect it (asbestos)?” Maimon asked.

The FDA (Food & Drug Administration) proposed the PLM, but the XRD became the accepted method,” Webber said. “It had a limitation. If fibers were less than 0.5 percent it can’t see it (asbestos).

The PLM is more sensitive,” he added. “It’s a more reasonable method.”

Maimon produced a document that showed asbestos researcher Alice Blount in 1998 had warned in a communique that asbestos in talc powder had failed to be identified in testing.

“I believe talc contains trace amounts of asbestos that are below those (standards) specified by OSHA,” the letter read.

Under cross examination, Mordecai Boone, Johnson & Johnson attorney with the Dentons law firm, asked Webber if a fiber has to be asbestiform to be asbestos.

Webber agreed.

“How many fibers would you see in a TEM (microscope) for it not to be just background air?” Boone asked.

“I would want to see at least three fibers,” Webber said.

Boone asked Webber if the XRD method of testing would miss concentrations of asbestos below the 0.5 percent level.    

“It would be less likely to see it,” Webber said.

Plaintiff attorney Denyse Clancy with the law firm Kazan, McClain, Satterley and Greenwood asked the next witness Jennifer Knutson, a friend of Leavitt’s, if she saw Leavitt use the J&J baby powder.

“All the time,” Knutson said. “She used it as face powder, she was putting it on for makeup. She liked a white porcelain look.”

Knutson was asked what Leavitt was like before she was diagnosed with mesothelioma.

“Terry is one of those people who walk into a room and you feel her energy,” Knutson said. “She’s funny, she’s a huge presence. She is a genuine person who would do anything for a friend.”

Knutson said Leavitt had stayed with her for support during a time when Knutson's husband was hospitalized.

“How is she (Leavitt) different now?” Clancy asked.

“I would say the biggest difference is she (Leavitt) has lost her sparkle,” Knutson said. “She is severely depressed. After her operation she gets a scan every month. She lives month to month. She knows it (cancer) is coming back. We all do.”

Clancy asked Knutson what she hoped for Leavitt.

“Objection,” the defense attorney called.

“Sustained,” Judge Brad Seligman ruled.

A third plaintiff witness was called to the stand, Dr. David Egilman a Brown University epidemiology researcher and physician who worked with the Harvard School of Medicine and at the National Institute for Occupational Safety and Health (NIOSH).

Egilman was questioned by Michael Brown, attorney for Johnson & Johnson.

“You don’t have a master’s degree in epidemiology?” Brown asked.

“Correct,” Egilman answered.

Egilman said his master’s was in public health.

“You don’t have a degree in geology, correct?” Brown asked.

“Correct,” Egilman said.

“There are no degrees in corporate corruption?” Brown asked.

“There are no degrees but there are many graduates,” Egilman responded.

“How is it a distinguished researcher like yourself never found time to write about talc until after you were retained by plaintiff’s lawyers?” Egilman was asked.

“Until I saw (more recent) documents I didn’t realize there was asbestos in talc,” Egilman said.

On cross examination Joseph Satterley, Leavitt’s attorney, asked Egilman to state the cause of her disease.

“Asbestos in fibrous talc (Johnson & Johnson) that she inhaled,” he said.     

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Organizations in this Story

Dentons, Llp Kazan, McClain, Satterley, & Greenwood

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