Closing arguments held in talc trial against J&J: Was it a conspiracy or spontaneous?

By John Sammon | Mar 11, 2019

ALAMEDA – Closing arguments on Monday in the trial to decide if Terry Leavitt’s mesothelioma was caused by Johnson & Johnson baby powder pitted plaintiff attorneys accusing the company of conspiracy, against defense attorneys contending Leavitt’s disease was spontaneous in nature---not from talc powder.

The two-month old trial in the Alameda Superior Court is being streamed live courtesy of Courtroom View Network.

Leavitt is suing Johnson & Johnson alleging the baby powder she used for 30 years caused her to develop mesothelioma, an incurable and fatal cancer of the linings of the lungs. At issue now is whether a jury will decide if J&J is blameless, or if Leavitt should be awarded compensation for her suffering and if J&J should be punished for its conduct with punitive damages.

Joseph Satterley, Leavitt’s attorney, told the jury she had a horrible disease that will result in her untimely death. Leavitt, the mother of two teenage girls, was 52 at the time of her cancer diagnosis in 2017.   

“It’s a slow, painful death,” Satterley said.

Satterley said a company can make a product, but when it makes a product that hurts people, the company is responsible.

He accused Johnson & Johnson officials of intentional concealment of the facts and misrepresentation that talc powder did not contain asbestos and was dangerous.

“Allowing it on babies is despicable conduct,” Satterley said. “They (J&J) knew about the asbestos risk even before Terry Leavitt was born. They had a zero tolerance (for asbestos) that’s what they claimed. There is no safe level.”

Satterley exhibited a slide showing that in 1960 the Battelle Memorial Institute, an Ohio-based science research firm, had found trace amounts of tremolite, a mineral that can be asbestos or not. In 1969, a document reported tremolite had been found with needle-like fibers.

During the lenghty trial, debate has centered on whether trace or small amounts of asbestos could have escaped detection and made it into the baby powder, and if the tremolite found was asbestos in nature.

Given doubt, Satterley said a reasonable company would have withdrawn the product off the market until further testing could find the answers.     

“If it’s safe you would put it back on the market,” he said.

Satterley exhibited a 1960s company communication that expressed concern stating that “It is not inconceivable we could become involved in litigation” over potential health problems associated with talc powder.

A new method of testing called “concentration” in which heavy liquid is used to separate talc from heavier materials was developed in the 1970s. Satterley said the company considered it “too sensitive.”

“They knew it (concentration) would find what they didn’t want anybody to know about,” he said.

Satterley said the McCrone Group lab in Illinois had found asbestos in talc. He added that company documents during the 1990s showed J&J had targeted female teens, African Americans and Hispanics to use baby powder as a dry shampoo to grow the franchise.

“That was how Terry Leavitt used it (as a dry shampoo),” Satterley said.

Satterley took issue with the notion that cleavage fragments, crushed particles in minerals, were non-toxic.

“That has not been proven,” he said. “They’re saying maybe there’s a little asbestos in baby powder, that’s okay.”

Satterley accused John Hopkins, a top corporate defense witness for Johnson & Johnson and a research director with the company from 1976 to 2000, of making false statements.

“He tried to say you can have fibrous forms but it wouldn’t be asbestos,” Satterley said. “He lied.”

Satterley said Dr. William Longo, a Georgia-based researcher, had found asbestos in talc from Korea, a supplier along with mines in Vermont and Italy.

He said the pain, suffering and medical expenses to be suffered by Leavitt could be in the millions of dollars.

“Our evidence meets the standard (negligence and intentional concealment),” Satterley said.

Johnson & Johnson attorney Michael Brown said the accusation by the plaintiff attorney that J&J wanted to hurt people and put toxic powder on babies (including the children of J&J employees) didn’t make sense.

“He (Satterley) said they want to kill everybody,” Brown said. “No one in Johnson & Johnson wanted to harm anyone. We honestly believe they (plaintiff attorneys) have not met their burden of proof.”

Brown said for Johnson & Johnson to commit a conspiracy the company would have to get respected government agencies like the Occupational Safety and Health Organization (OSHA) and the Environmental Protection Agency (EPA) to become accomplices.

“If that’s true why was the testing above industry standards?” he asked. “They didn’t prove cosmetic talc causes mesothelioma. They haven’t proved Mrs. Leavitt’s mesothelioma was caused by asbestos.”

Brown added that Leavitt’s asbestos levels taken from testing showed she was not above the amounts of fibers breathed normally into the lungs out of ambient air by healthy people, called “background” limits.

He added that if talc caused mesothelioma it would have showed up in the millers and miners who dug and processed the talc. Zero cases had been found, Brown maintained.

A research witness for the defense, Dr. Suresh Moolgavkar, said during the trial that cosmetic talc does not cause mesothelioma. Brown also cited an International Agency for Research on Cancer (IARC) report that said fibers can be elongated without being asbestos.

Asbestos fibers are generally three-to-one times longer than they are wide.

Brown said cleavage fragments, crushed mineral particles, cannot be called fibers.

“Fibers and asbestiform are two different things,” he said.

Brown also cited a 1987 report from the McCrone Group lab that powder from Vermont’s Windsor Mine was free of asbestos.

“There’s no evidence we (J&J) bribed them (McCrone),” Brown said.

He added that testing submitted to the Food & Drug Administration (FDA) showed no asbestos and that tremolite found in talc powder did not mean it was contaminated with asbestos.

“Tremolite and tremolite asbestos are two different things,” Brown said.

Brown displayed a 1979 report from NIOSH that Vermont talc contained no asbestos.

He asked the jury not to be misled by the arguments of plaintiff attorneys.

“Don’t be bamboozled,” he said.

Brown said the concentration technique for pre-screening talc before examining it under a microscope had been rejected not just by J&J’s in-house lab, but by government agencies as well.

“Not one government agency has required it,” he said. “Johnson & Johnson found it to be inaccurate and Dr. (F.D.) Pooley (U.K. researcher) deemed it not reliable.”

Brown said an attempt by a citizen’s group in the 1980s to require warning labels on baby powder had been rejected by the FDA because it was not warranted.

“Today there is still no warning necessary,” he said.

Brown said charges that Johnson & Johnson destroyed documents in a cover-up were false. He added that while breathing large amounts of talc can cause a disease such as talcisos of the lungs, there is no evidence cosmetic talc causes mesothelioma.

“If you consider the science, talc cannot cause mesothelioma,” he said.

Brown said Johnson & Johnson had exhaustively tested its talc powder for decades both in-house and through use of outside labs. Testing had gone on hourly five days a week.

“All the results showed no asbestos,” he said.

Brown said Leavitt’s mesothelioma was spontaneous, caused for no known reason.

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