ALAMEDA (Legal Newsline) – A microscope researcher called by attorneys representing plaintiff Patricia Schmitz on Thursday said he found asbestos in Johnson & Johnson talc powder samples while Schmitz’s relatives told a jury how mesothelioma had robbed the woman of her quality of life.
“Did you evaluate 16 samples of Shower to Shower?” asked Schmitz's attorney, Joseph Satterley.
“Yes,” responded Lee Poye, a Houston-based microscope researcher who runs an independent testing analytics lab called J3 Resources. “I was able to detect asbestos in 11 samples.”
“Did the samples come from Johnson & Johnson?”
“That is correct.”
Shower to Shower is an after-shower product marketed for adults by Johnson & Johnson in addition to the company’s baby powder.
The trial in the Alameda Superior Court is being streamed live courtesy of Courtroom View Network.
Alameda County has been the origin of lawsuits against Johnson & Johnson, but this is only the second case to go to trial in the area. Most past asbestos trials have been held in Los Angeles courts.
Schmitz is suing Johnson & Johnson for its baby powder and Colgate-Palmolive for a product called Cashmere Bouquet (bath bar soap), claiming the products caused her to develop mesothelioma, a rare cancer of the linings of the lungs.
Johnson & Johnson is based in New Jersey and Colgate-Palmolive in New York.
Schmitz, a former teacher and Alameda resident, reportedly used the J&J baby powder beginning as an infant powdered by her mother and continuing for 40 years as an adult.
During witness testimony Schmitz’s older sister Joanne Tylant told the jury she (Schmitz) had used both J&J baby powder and the Cashmere Bouquet products.
Plaintiff attorney Denise Clancy displayed family photos of Schmitz and asked Tylant what mesothelioma had done to her sister’s vitality.
“She has lost a lot of energy,” Tylant said. “The chemotherapy really made her sick. She quit teaching. She can’t eat. She’s skinny, now she’s bones. She’s fighting hard but she’s not the same.”
Schmitz’s younger sister Susan Bader also testified. She was asked if she had seen warning labels on Johnson & Johnson baby powder bottles.
“I did not,” Bader said.
“Were you aware that Johnson & Johnson baby powder could contain asbestos fibers?” Clancy asked.
“No,” Bader answered.
Bader, describing how Schmitz had devoted her life to teaching and how her students loved her, wept during her testimony.
“She is less than half the size she was,” Bader said of Schmitz. “She’s gotten frail. She was such an independent person and now she has to ask people to do simple things for her.”
Bader said her sister has gone through four rounds of chemotherapy treatments.
“She is incredibly sick, she spends 14 hours in bed, she can’t get up the stairs at home and has to stop and catch her breath. She cried on the phone and apologized for breaking down. I’m getting married on May 4 and she can’t make it to the wedding.
"She tries to be stoic,” Bader added.
During his testimony Poye was asked by Satterley how many samples his firm had tested for possible contaminant substances.
“Hundreds of thousands,” Poye answered.
Poye said he was experienced in microscope analysis using instruments such as the analytical transmission microscope (ATM). His firm also used the transmission electron microscope (TEM) and X-ray diffraction techniques.
Satterley asked Poye to explain the “concentration method,” a way of pre-screening talc powder before examining it under a microscope, developed during the 1970s. Johnson & Johnson officials declined to use the method claiming it was ineffective; however critics of the company have contended in this and other asbestos trials that it should have been used.
Poye said the method uses a heavy liquid substance with the same density as talc fibers and spins it in a tube separating the talc from heavier materials such as iron or asbestos which sink to the bottom. Using a filter the bottom materials can be analyzed for identification.
“You get rid of the talc plates,” Poye explained.
Poye was asked by Satterley if asbestos had been found in the Shower to Shower products.
“There’s no doubt in my mind,” Poye said.
He said he was being paid $500 per hour to testify.
Under cross examination defense attorneys questioned Poye about his expertise.
“You are not a PLM analyst?” he was asked.
“Correct,” Poye responded.
Poye said his expertise was with the ATM microscope.
“You’re not a geologist, or mineralogist?”
Poye agreed.
“You didn’t go to school to study asbestos?”
“Correct.”
“You haven’t published any (scientific) papers in relation to cosmetic talc?”
“I believe so,” Poye responded.
“You’re not a medical doctor?”
“Correct.”
Poye agreed that the rise of asbestos-related court cases was an opportunity for a lucrative market analyzing substances.
“The bread and butter of your business is asbestos?”
“I would agree with that,” Poye said.
Poye was asked if he had designed his testing methods for the case based on directives from Satterley. He said as with all clients he had held a consultation and determined the best methods to use. Poye added that the liquid concentration technique was not effective in spotting one form of asbestos called chrysotile.