ALAMEDA — Plaintiffs argued that in the 1970s, officials of Johnson & Johnson tried to avoid possible regulation of talc baby powder by the Food & Drug Administration (FDA) and considered strategies to prevent it.
One J&J official, W.H. Ashton, at the time took credit for keeping cosmetic talc powder out of proposed regulations.
“They were concerned the FDA would pass regulations for fibrous talc,” Dr. David Egilman told plaintiff Terry Leavitt’s attorney Joseph Satterley.
Egilman, a witness called by Satterley, is a physician and Brown University epidemiology researcher with the Department of Family Medicine. He operates a consulting business Never Again Consulting based in Attleboro, MA, that he said promotes environmental health and battles corporate malfeasance.
Leavitt is suing Johnson & Johnson and its talc mining supplier Imerys Talc America claiming the baby powder she used for 30 years until 1990 caused her to develop mesothelioma, a rare and fatal cancer of the lungs.
The trial in Alameda Superior Court is being streamed live courtesy of Courtroom View Network.
Egilman said Johnson & Johnson baby powder gave Leavitt the disease.
A 1963 document presented by Satterley showed that during testing a “trace” amount of fibrous tremolite, an asbestos-related mineral, had been detected. Egilman agreed there was no safe level of exposure to asbestos.
“Exposure can cause disease,” he said. “When you say trace, it means it is found. It’s there depending on the sensitivity of the testing.”
Egilman also agreed that the product failed to warn of the danger from asbestos. Given a company promise in 1974 to remove the baby powder from the market if there was any question of danger, Egilman said the decision to continue selling talc baby powder by officials at Johnson & Johnson was not appropriate conduct.
A credo for the company written in the 1940s had stated the powder product must be of the highest quality.
Egilman said talc dug from mines in Vermont and later South Korea for J&J contained asbestos.
Satterley presented a 1975 document in which company officials discussed strategies to protect their product, likening it to mobilizing forces, going into battle and winning on a battlefield.
Asked how such a statement could be interpreted, Egilman said it reflected an attempt to influence and convince health organizations like the National Institute for Occupational Safety and Health (NIOSH) that the baby powder contained no asbestos.
“It’s contrary to the ideas in the credo,” Egilman commented.
Egilman disputed a contention put forward by defense attorneys that Leavitt living near a factory that was crushing vermiculite rock for use in roofing materials by the Flintkote Co. could have been the source of her mesothelioma.
“Did studies show an increased risk (from the Flintkote factory)?” Satterley asked.
“No,” Egilman responded.
“If it was said the mesothelioma was spontaneous, would you agree?” Satterley asked.
“No,” Egilman said.
Under cross examination, Michael Brown, the attorney for J&J, challenged the idea that trace amounts of asbestos could be breathed from air without harm, but not baby powder.
“Is it your opinion air breathed is a contributing factor (to mesothelioma)?” he asked.
“It depends on the case,” Egilman said.
“We can measure an amount (of asbestos) in the air that has numbers—a percentage,” Brown said. "Does ambient air cause mesothelioma?”
“No,” Egilman said.
“Is asbestos in ambient air that people breathe, like in San Francisco?” Brown asked. “You said a trace amount can cause it."
“It may or may not be,” Egilman said.
“If we’re all exposed to the air, does that mean air caused it?"
Egilman said air does not contain the kind of asbestos found in Leavitt’s tissues such as anthophyllite and tremolite.
“Things found in the air were not found in her lungs,” Egilman said.
“How would you know that every person who lived in San Francisco did not have those?" Brown asked.
Brown also questioned Egilman about his pay as a plaintiff witness asking if he had been paid more than $5 million in litigation over a number of cases.
“Yes,” Egilman agreed.
Brown exhibited a document from the early 1970s that stated testing of an Italian talc powder used for a Johnson & Johnson adult product called Shower to Shower had failed to establish there was any chrysotile asbestos in the product.
Egilman disagreed. “They did find chrysotile,” he said.
Egilman said the findings in the document were incomplete, including one report by the Colorado School of Mines in which a a positive finding for asbestos had been left out.
In the 1970s, a newly developed form of testing called "concentration" using heavy liquid to separate test materials before observation on a microscope had been developed. Officials of J&J elected not to use it saying they doubted its accuracy.
"None of these tests used concentration," Egilman said regarding the document exhibited by Brown. "You can't say the tests established there was no asbestos."
Egilman indicated that small amounts of asbestos could evade detection under a testing method called X-ray diffraction (XRD).
"There could be 2 percent chrysotile and it would not be detected," he said. "All you can say is none was detected."