ALAMEDA — A microscope researcher on Tuesday told defense attorneys for Johnson & Johnson that four tests of the lung tissues of plaintiff Terry Leavitt revealed numerous tiny particles breathed in including glass and talc, but no asbestos.
“No asbestos fibers were found, correct?” Michael Brown the attorney for J&J asked.
“Correct,” answered Lee Poye, a witness called by Leavitt’s attorney and a microscope researcher who runs his own asbestos analysis firm J3 Resources in Houston.
However, under cross examination, Leavitt’s attorney received agreement from Poye; that testing methods used are imperfect and do not automatically mean the baby powder is asbestos-free.
Leavitt is suing Johnson & Johnson and its mining talc supplier Imerys Talc America claiming the baby powder she used from the 1960s until 1990 exposed her to asbestos causing her to develop mesothelioma, a fatal cancer of the lungs.
The trial in Alameda Superior Court is being streamed live courtesy of Courtroom View Network.
Samplings of Leavitt’s lung tissue conducted in January, March, September and December of 2018 revealed no asbestos, but a mineral called winchite/richterite (sodium magnesium) was spotted. Defense attorneys during the course of the trial have contended that Leavitt’s place of residence close to a plant facility crushing rock containing vermiculite for roofing materials could have been the cause of her mesothelioma and not talc baby powder.
“Winchite/richterite can come from vermiculite or talc,” Poye agreed.
“You only recently began testifying in asbestos trials?” Brown asked.
“Last year,” Poye answered.
Poye said his company billed $500 an hour for his testimony in court.
Brown noted that Poye had a company website portraying a caricature of a courtroom gavel and money bills.
“This says call me I’ll make you money,” Brown said.
“It’s an indication that in litigation big money is involved and it’s very serious,” Poye responded.
A tissue analysis of Leavitt under a microscope at 15,000 times magnification also revealed no asbestos fibers.
“No asbestos was found?” Brown asked.
“Correct,” Poye answered.
Poye added that a 2014 bottle of Johnson & Johnson baby powder had shown no asbestos to date and 75 talc powder samples revealed no asbestos using the techniques of X-ray diffraction and polarized light microscope (PLM).
He explained that asbestos fibers have high tensile strength and flexibility which makes them valuable as a building material for industry. Such fibers are usually long in shape compared to width and can bend without breaking. Asbestos is found among six identified minerals, actinolite, amosite, anthophyllite, chrysotile, crocidolite and tremolite.
During the trial attorneys have questioned witnesses about a decision by officials of Johnson & Johnson not to use a testing method newly developed in the 1970s called concentration, using heavy liquid to separate materials before putting it under a microscope. Concentrated talc is spun causing heavier materials to separate.
Officials of J&J said in prior testimony they decided not to use the concentration method because they did not believe it to be effective and so stuck with high-powered microscopes as the best technique.
Poye noted that if a sample meets the definition of a fiber bundle, it’s asbestiform (asbestos). He said he had some limited experience with the heavy liquid method of testing talc and added that requests for sample evaluations from his lab come more frequently from defendants in asbestos trials rather than plaintiffs.
“You’re (mainly) a TEM (microscope) guy,” Brown said.
“Correct,” Poye agreed.
Under cross examination from Leavitt’s attorneys Poye said testing that found no asbestos didn’t defintively mean there was no asbestos present.
“No asbestos was detected, but I’m not going to say there was none,” he observed.
Four physical signs are used to identify asbestos, parallel fibers, fiber bundles with splayed ends, matted masses of individual fibers and fibers that show a curved shape.
Poye said testing done by X-ray diffraction which evaluates the crystal structure of a mineral and polarized light microscope (PLM) showed that if there was asbestos present in the powder, it was below the detection limits of the instruments.
He was asked if a zero finding automatically meant the samples were asbestos-free.
“No it does not,” Poye responded.