ALAMEDA – An industrial hygienist appearing as a witness for the defense told a jury on Wednesday that plaintiff Terry Leavitt’s exposure to asbestos did not rise above what is considered background levels---the amount regulatory agencies like the Food & Drug Administration (FDA) do not consider excessive.
It was not enough to cause mesothelioma, defense attorneys contend.
“You’re within background levels,” Brian Daly, a safety engineering and health hazard researcher said of Leavitt's potential exposure level. “If you take information from Dr. Longo (plaintiff's expert), it’s below that (exposure) level about 100 times.”
William Longo a microscope researcher with Georgia-based MAS laboratories, who will appear as a witness for the plaintiff, is expected to testify he found asbestos in Johnson & Johnson baby powder.
The trial in the Alameda Superior Court is being streamed live courtesy of Courtroom View Network.
Leavitt is suing Johnson & Johnson claiming the baby powder she used for 30 years caused her to develop mesothelioma, a deadly cancer of the linings of the lungs. The disease is incurable and usually fatal within a few years of diagnosis.
Daly said he was not testifying to speculate on what caused Leavitt’s mesothelioma.
Joseph Satterley, Leavitt’s attorney, said Daly had never made presentations or published (scientific literature) about talc.
“That’s true,” Daly said.
“In your CV (resume) there is no reference to asbestos or talc?” Satterley. asked.
“Certainly talc,” Daly agreed.
“You never measured the Flintkote Factory?” Satterley asked.
“That’s true,” Daly responded.
“You’ve testified in over 60 trials?” Satterley asked.
“That’s correct,” Daly said.
“About 30 percent of your time is doing litigation work?” Satterley asked.
“Correct," Daly said.
Defense attorneys have from the start of the trial suggested that a Flintkote Co. plant in Fremont near Leavitt’s house that generated the mineral vermiculite for use in roofing materials could have been the source of Leavitt’s mesothelioma,not baby powder.
Daly said he was tasked for the case with answering two questions, if Leavitt could have been exposed to asbestos above background levels, and if other sources of asbestos exposure should be considered.
“You establish what a background level is,” Daly said. “You ask what the activities (uses) of baby powder in general are to develop cornerstone data that allows a formula for a lifetime dose.”
Daly explained that he determined Leavitt’s usage of baby powder beginning when she as an infant in the Philippines being diapered by her mother. Based on deposition testimony taken from Leavitt and her mother he calculated the number of times Leavitt was diapered and powdered, also the times she was present and watched her younger sister (Nicole) be powdered.
The children were estimated to have been powdered from seven to 12 times a day.
Assuming there was asbestos in the baby powder he used a worst-case scenario using FDA standards and continued calculating Levitt’s use of the Johnson & Johnson baby powder into adolescence and adulthood. Based on the calculations he came up with a rate of 0.11 fibers per cc in a year or 0.00008 per year---within background levels of exposure, he said.
Everyone has some asbestos in their body either breathed in the ambient air or from a variety of sources. Daly said homes built before 1980 for example could contain asbestos in ceiling material and popcorn ceiling acoustic spray that once was a popular building material, also housing construction joists and dry wall, and mastic material (adhesive) that binds floor tiles.
Background levels include breathing of ambient air which contains asbestos fibers but which does not result in illness because the levels of asbestos present in the environment are low. Daly presented a chart showing that urban areas like San Francisco can have 10 times the asbestos fibers in air over a rural area. Again this usually does not result in illness because the amounts breathed are not excessive.
Daly said in addition to his finding that Leavitt’s use of baby powder was not above background levels, there were other potential sources of asbestos including the Flintkote plant and also a manufacturing plant for W.R. Grace Co. in nearby Newark (Alameda County).
Satterley took issue with Daly’s conclusions saying he lacked a single witness who saw Leavitt near the plant sites or breathing dust from them. He accused Daly of fabricating evidence.
“You’re not here to make up evidence?” he asked. “Tell me the date Mrs. Leavitt breathed dust from the Flintkote plant?”
“I can’t give you a date,” Daly said.
“Tell me the month,”
“I’m talking to you as an environmental scientist,” Daly said.
“You’ve heard of the saying garbage in and garbage out?” Satterley asked.
“I get it,” Daly said.
A moment later Daly responded, “I’m stating the facts, facts in and facts out.”