Plaintiff attorney says J&J avoided warning letter over baby powder asbestos

By John Sammon | Jan 31, 2019

ALAMEDA — The attorney for plaintiff Terry Leavitt in the trial to determine if baby powder made by Johnson & Johnson gave her the deadly disease mesothelioma on Wednesday sought to portray the company as not wanting to know the unpleasant truth.

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

“Johnson & Johnson knew about (Rutgers University researcher) Alice Blount’s identification of asbestos in the Johnson & Johnson baby powder products since the early 1990’s, correct?” Moshe Maimon, Leavitt’s attorney, asked John Hopkins, spokesman for the company. “Can you tell the jury what your answer was under oath?”

“Object!” Johnson & Johnson’s attorney Michael Brown called.

“Overruled!” Superior Court Judge Brad Seligman ruled.

“It is true—is it not?—that you understood Alice Blount had been retained as a consultant by Johnson & Johnson and wrote a letter to the company’s lawyers in 1998 telling them—'Hey! Quit telling people there’s no asbestos in the baby powder.' I found it.

"That was her opinion, correct?” Maimon pressed.

“Correct, that was her opinion,” Hopkins agreed.

Hopkins was an officer in the J&J research and development department from 1976 to 2000 whose job it was to peruse testing results on the baby powder often performed by outside labs. He is considered the company’s top spokesman for the trial.

Maimon exhibited documents from Johnson & Johnson—many dating from the 1970s—for Hopkins to comment on, and accused the baby powder maker of avoiding more definitive testing for asbestos to preserve its business using talc.

One document indicated company officials were disturbed by the possibility of the Food and Drug Administration (FDA) sanctioning newly-developed testing techniques for finding asbestos in baby powder involving heavy liquid separation of materials before going under a microscope. A Johnson & Johnson official in a letter dated from November of 1976 was quoted as saying the new testing methods could open up new “problem areas” for the company.

Asked about the document Hopkins agreed. “That’s what he said.”

During the nearly four weeks of the trial, Leavitt’s attorneys have also sought to establish that smaller amounts of asbestos could have been missed by tests in the 1970s because the methods used at the time (X-ray diffraction) weren’t sensitive enough  

Leavitt claims the mesothelioma she contracted was a result of using Johnson & Johnson baby powder daily from the 1960s until she stopped in 1990. Caused by exposure to asbestos mesothelioma has an average 30-year “latency” period from first exposure to the onset of illness.

Maimon contended the company avoided the heavy liquid separation testing because of what it might reveal.

“What do you want?” Hopkins asked Maimon at one point during the questioning.

“I’d just like the truth,” Maimon responded. “The truth is you’ve never seen a single document that shows Johnson & Johnson tested talc using the heavy liquid separation technique, correct?”

“Yes,” Hopkins said.

Hopkins explained that while the company had contracted outside researchers to look into the heavy liquid method of testing, the company had not studied it.  

In 1973, the Colorado School of Mines informed J&J officials the heavy liquid method could detect smaller or trace amounts of asbestos down to 10 ppm (parts per million) or less.

Two minerals that feature regularly in the documentation and can contain asbestos (or not) are tremolite and chrysotile.

On cross examination, Brown took over the questioning of Hopkins for the first time near the end of the day. Brown sought to show that J&J had done exhaustive testing of its baby powder, which consistently revealed no asbestos.

He asked Hopkins if anywhere in the documents asbestos had been identified.

“Does this document say tremolite asbestos?” Brown asked.

“No, just tremolite,” Hopkins answered.

“Is it (asbestos) mentioned in any of the documents?”

“No,” Hopkins said.

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