Defense attorney for J&J debunks separation method in mesothelioma trial

By John Sammon | Feb 15, 2019

ALAMEDA – Attorneys defending Johnson & Johnson in the trial of a woman suing the company for allegedly causing her mesothelioma attempted to blunt criticism that the company failed to use a more comprehensive heavy-liquid testing method for detecting asbestos in baby powder, saying the method was not foolproof.

Defense attorneys also argued that tests showing asbestos in baby powder could be a case of mistaken identity.

The trial in Alameda Superior Court is being streamed live courtesy of Courtroom View Network.

“You would agree that not all amphiboles (needle-like crystals) are asbestos?” asked Matt Ashby, attorney for Johnson & Johnson.

“I would agree,” responded William Longo, an electron microscope researcher and a witness called by the attorney for plaintiff Terry Leavitt.  

Leavitt is suing Johnson & Johnson claiming that asbestos-contaminated baby powder caused her to develop mesothelioma, a rare cancer of the linings of the lungs. The disease is incurable and fatal usually within a year of diagnosis.

During Thursday's session, Superior Court Judge Brad Seligman announced that Johnson &Johnson’s talc powder supplier Imerys Talc America had been dismissed from the trial as a co-defendant, but offering jurors no explanation for the decision. 

Prompting dismissal of Imerys from Leavitt's case was the company's Chapter 11 bankruptcy petition filed earlier in the week under the weight of approximately 15,000 lawsuits. 

That leaves Johnson & Johnson and another talc supplier Cypress Mines still in the case.

In the 1970s a new technique of testing talc powder for asbestos called “concentration” was developed in which talc powder is spun in a tube filled with heavy liquid to separate the talc which floats to the top from heavier materials that collect on the bottom. The material is then examined under a microscope.

Critics of Johnson & Johnson argue that use of the method would have allowed the company to better screen for smaller possible amounts of asbestos called “trace” amounts.

However Johnson & Johnson officials declined to use the method stating it was not believed to be effective. Instead, the company would rely on high-powered microscopes and X-ray defraction, standard test procedures of the 1970s and '80s.

Ashby questioned Longo about the testing methodology used at his Georgia-based MAS lab.

“The FDA (Food & Drug Administration) has never adopted it (concentration method)?” Ashby asked.

“That’s correct,” Longo said. “They never put out a method using any analytical technique.”

Longo agreed the concentration method was not practical for detecting some asbestos-related minerals like chrysotile. It was better at spotting other potentially asbestos contaminated minerals including tremolite and anthophyllite.

“Trace levels (asbestos) can be found without concentration,” Ashby said, and referred to the polarized light microscope (PLM).

Longo agreed.

Ashby exhibited a slide defining asbestos as “Asbestos-form minerals in which the fibers possess high tensile strength and flexibility.” 

Such properties makes asbestos valuable as a component in building materials.

Another slide stated that according to the Occupational Safety and Health Administration (OSHA), asbestos has to be one of recognized six mineral forms, actinolite, amosite, anthophyllite, chrysotile, crocidolite and tremolite.

Cleavage fragments, broken off shards of a mineral, defense attorneys contended, can look similar to asbestos fibers under a microscope and can be misidentified as such.

“Crushing a non-asbestos-form rock does not make it asbestos-form,” Ashby said.

“No,” Longo agreed.

“Cleavage fragments can be mistaken as fibers of the asbestos-form variety,” Ashby said.

“You can’t tell without knowing about the sample,” Longo said.

An exhibited document from the U.S. Bureau of Mines agreed that cleavage fragments could be mistakenly identified as microscopic fibers of asbestos.

However, Longo indicated his testing methods looked in detail at the crystalline nature of a mineral and its structure before identifying it as an asbestos fiber bundle.   

Ashby asked Longo if the samples his lab received for testing came from lawyers representing plaintiffs in court cases.

“That is correct,” Longo replied.

“Your firm’s relationship with them (plaintiff lawyers) started before they asked you?” Ashby said.

Longo agreed.

Longo also agreed some of the test samples had come from baby powder bottles bought off the store shelf. It was unknown in most cases who the original possessor of the bottles were between the time they were purchased and the time they were tested.

Some of the baby powder submitted by lawyers to be tested had been purchased on eBay. Longo said he did not know how some of the samples had originally been stored or where.

“Is it true contamination can occur (in storage)?” Ashby asked.

“True,” Longo answered.

“Contamination can occur in a lab?”

“Correct,” Longo answered.

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