Into fifth week of J&J talc trial, sides continue to spar over testing of baby powder

By John Sammon | Feb 12, 2019

ALAMEDA – Under questioning by a defense attorney on Monday a witness appearing on behalf of plaintiff Terry Leavitt said documents on test results for asbestos in Johnson & Johnson baby powder had been “fabricated,” with information in the early 1970s left out to make it seem no asbestos had been found.

“Can you show me one document that evidences that Johnson & Johnson went down to Sperry Rand (test lab) and threatened or pressured them to do - what you said - modify test results?” asked Johnson & Johnson attorney Michael Brown.  

Dr. David Egilman a Brown University researcher and occupational epidemiologist, said not from Sperry Rand, but he had seen other documents where omissions had occurred.

“It’s not lying about test results, it’s modifying test results,” Egilman said.

“So McCrone Group (J&J test lab) and Sperry Rand are lying,” Brown said. “Is anyone else lying too?”

“Object!” the plaintiff attorney called.

“Sustained!” ruled Judge Brad Seligman.

The trial now in its fifth week in the Alameda Superior Court is being streamed live courtesy of Courtroom View Network.

Leavitt is suing Johnson & Johnson and its talc powder supplier Imerys Talc America for the baby powder she claims gave her mesothelioma, a deadly incurable cancer of the linings of the lungs.

Brown exhibited a response letter from the U.S. Food & Drug Administration after a citizen’s group in Florida in the 1980s asked the FDA to require warning labels on baby powder bottles including identification of the powder’s components.

The FDA rejected the idea.

“There is no basis for the agency (FDA) to conclude there is a health hazard attributable to cosmetic talc,” the response lettered dated 1986 read. “Without such evidence there is no need to require a warning label.”

The letter went on to say the risk posed by baby powder would be less than environmental background levels, air breathed by people containing tiny amounts of asbestos, that pose no health risk.   

Brown asked if the FDA had authority at the time to mandate warning labels for baby powder.

“They (FDA) didn’t have regulatory authority over talc,” Egilman said.

“I understand,” Brown said. “I asked if the FDA would be responsible?”

“The FDA could do it under certain circumstances,” Egilman said. “The Consumer Product Safety Commission could also put out a warning.”

Egilman said he had been to mines in Italy supplying talc to J&J to examine the mineral and take samples. Talc for use in J&J baby powder was also mined in Vermont and more recently Korea.

“Did you wear a respirator?” Brown asked.

“The (Italian) mine was not operating,” Egilman said. “The walls were wet and there was no visible dust. We were told it was an asbestos-free mine.”

“But you told the jury it wasn’t,” Brown responded.

Egilman agreed no long-term study of miners who had dug the talc was performed to see if they developed disease. Mesothelioma has a 20-year or longer “latency period,” the time from exposure to the onset of disease.

“Did you make a follow-up to do a study?” Brown asked.

Egilman responded he would need the social security numbers of the miners and their addresses of residence and such information had not been provided by Johnson & Johnson.

Brown asked Egilman if tremolite, an asbestos-related mineral, could be non-asbestos in nature.

“Yes,” Egilman agreed.

“Can we agree fibrous materials do not automatically mean asbestos-form?”

“Fibrous is a general term,” Egilman answered. “Asbestiform is a more specific.”

During the trial, attorneys from both sides have argued about the effectiveness of testing of baby powder, much of it done in the 1970s and '80s including the use of the transmission electron microscope (TEM), the polarized light microscope (PLM) and X-ray diffraction (determines a mineral’s crystal structure).

Plaintiff attorneys contend “trace” amounts of asbestos, smaller amounts, could slip by undetected using the common testing methods of the day, particularly X-ray diffraction.

A new type of testing called “concentration” was developed in the 1970s in which talc is spun at high speed using heavy liquid to separate heavier materials at the bottom of a tube, talc floating to the top. J&J officials declined to use the technique saying they didn’t believe it to be effective.     

A 1972 document from a researcher agreed that a scanning electron microscope and X-ray techniques were not able to positively identify asbestos including the related mineral chrysotile.    

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