Plaintiff lawyers say J&J turned a blind eye to trace asbestos amounts

By John Sammon | Jan 29, 2019

ALAMEDA – Lawyers for plaintiff Terry Leavitt, during a second day of grilling Johnson & Johnson spokesman John Hopkins, used inter-company documents to try to convince the jury that the company ignored reports of trace amounts of asbestos in its talc baby powder, and declined to switch to safer corn starch.

According to documents presented by Moshe Maimon, Leavitt’s attorney, Johnson & Johnson officials also understood they could face future litigation over it.

Coverage of the trial is being streamed live courtesy of Courtroom View Network.

Leavitt is suing Johnson & Johnson and its talc powder supplier Imerys Talc America claiming the baby powder she used daily for 30 years from the 1960’s to 1990 caused her to develop mesothelioma, a rare and fatal cancer of the lungs.

Hopkins, who served as research development officer for Johnson & Johnson from 1976 to 2000, now runs his own consultancy business. He is considered the company top spokesman and has appeared in previous asbestos trials.

What seems to be at issue is whether officials at Johnson & Johnson knew detection testing methods used during the 1970s were not up to the job of finding small amounts of asbestos in baby powder (lower than industry standards), and whether the company deliberately ignored it to protect what they described as the “flagship” of their business.

Approximately 80 percent of talc supplied by Johnson & Johnson has been for industrial use. Cosmetic talc powder accounts for a small percentage of the business from selling baby powder and an adult product called Shower to Shower.

Maimon produced a 1972 report from the McCrone Group an Illinois asbestos testing lab, to J&J that advised, “Trace amount (asbestos) levels are extremely low but can occasionally be detected optically.”

Another document from T.E. Hutchinson a professor at the University of Minnesota informed J&J officers, “Neither scanning microscopy alone or micro chemical analysis can be reasonably expected to prove the existence of chrysotile asbestos in talc.”

In the 1970s, cosmetic talc powder was not regulated by the Food & Drug Administration (FDA).

In a 1973 letter a J&J official conceded that if the method of analysis of talc powder was changed by FDA regulation, “We may have problems.”

Johnson & Johnson offered corn starch in baby powder in the late 1970s. Maimon displayed a magazine advertisement that showed a baby and said, “Doctors trust corn starch it’s the safest you can use on baby.”

A group of pediatricians at the time had expressed concern about use of talc powder on infants because of potential inhalation problems. J&J officials stated they offered the corn starch version of their powder because they wanted to give a choice to consumers (talc or corn starch).

Instead an exhibited letter between J&J officers and those at a talc supplier called Windsor Minerals said the choice was rather to “Better protect our powder franchise” in case the asbestos controversy continued to grow.

“Our need for a non-talc dusting powder has increased as a result,” the correspondence read.

However, Hopkins continued to maintain the decision to offer corn starch in baby powder was about consumer choice.

A company memo declared the talc product would remain because mothers had themselves been treated with it as infants and trusted in it “instinctively.”

“Did I read that correctly?” Maimon asked.

“That’s what is written,” Hopkins said.

McCrone advised J&J in 1975 it had found amphibole minerals (asbestos) particles in the baby powder that came in a shape identified with asbestos, fibrous bundles.   

In a test of 25 samples two were found to have chrysotile an asbestos-related mineral, while another test of 12 samples revealed one asbestos sample using X-ray diffraction, while a third test using an electron microscope found several samples testing positive for chrysotile or amphibole (asbestos).

Maimon took issue with company testimony taken in the 1980s that “All talc is tested and no evidence (asbestos) has ever been revealed.”

“That testimony was taken under oath, correct?” Maimon asked.

“Yes,” Hopkins agreed.

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