Lung specialist describes plaintiff’s ordeal in J&J mesothelioma trial; Defense pokes hole in testimony

By John Sammon | May 3, 2019

OAKLAND – A physician lung specialist called as an expert witness by plaintiff attorneys on Thursday described for a jury the progressively painful stages of mesothelioma that plaintiff Patricia Schmitz goes through, while defendant attorneys said the testimony was based on assumptions.

“I don’t know how long she (Schmitz) will live,” Dr. Barry Horn said. “This is a tough lady. If she survives through the summer, it will be remarkable.”

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

Schmitz is suing Johnson & Johnson for its baby powder and Colgate-Palmolive for a face powder called Cashmere Bouquet, claiming the products were tainted with asbestos and caused her to develop mesothelioma, a rare form of cancer of the linings of the lungs.

The case is one of hundreds pending in which Johnson & Johnson stands accused of selling baby powder contaminated with asbestos. Most of the suits filed by women have contended the baby powder caused them to develop ovarian cancer, though numbers of mesothelioma cases have increased in recent months.

Schmitz’s attorney, Joseph Satterley of Kazan, McClain, Satterley and Green, asked Horn, a physician at the East Bay Critical Care and Pulmonary Center in Oakland, to describe the woman’s disease.

“She has pleural mesothelioma,” Horn said.

“Do you have an opinion of the cause?” Satterley asked.

“She was exposed to asbestos using talc powder,” Horn said.

Talc is a mineral used in the production of cosmetic powder and was mined for Johnson & Johnson at sites in Italy, Vermont and more recently China.

Horn said he examined Schmitz and she complained of shortness of breath and chest discomfort. The woman was diagnosed with mesothelioma in July 2018.

Horn called Schmitz’s condition a rapidly advancing disease.

She has been treated with chemotherapy and immunotherapy drugs such as Ellipta and Keytruda designed to encourage the body’s immune system to destroy cancer cells.

“Unfortunately for her, it didn’t work at all,” Horn said of the medications.

Another drug called gemcitabine is being administered to Schmitz weekly.

Horn described the mass of cancerous tissue in Schmitz’s chest as huge and growing to the point that it presses on the heart. To deal with the pain, doctors have placed her on morphine and potent narcotics but Horn said the woman still experiences pain.

“She has shortness of breath just walking down a hall,” he said. “She’s had weight loss and is losing muscle mass. She has dehydration and had to be placed on IV fluids.”

Horn added that fluids in her body caused her legs to swell.

Satterley asked Horn how he could say the use of baby powder caused the disease.

“The bottles of baby powder contained tremolite and anthophyllite,” Horn said, referring to two asbestos-related minerals. “Assuming the information is right, she (Schmitz) would have inhaled the powder.”

Satterley said Schmitz had used Johnson & Johnson and Cashmere Bouquet for years, as well as related products made by Avon.

“Did it increase her risk of mesothelioma?” Satterley asked.

“It did,” Horn responded.

Horn said the exposure is based on a dose-dependent relationship - the more powder breathed into the lungs, the greater the risk of exposure. He told Satterley that doctors who treated Schmitz never noted her history of exposure to the powder although not investigating it is a common practice among hospital physicians.

“It doesn’t surprise me,” Horn said. “You wouldn’t see this (exposure analysis) in a community hospital.”

He estimated Schmitz’s medical bills to date at $150,000.

“She’s going to die of the disease,” Horn said. “She won’t be here next year.”

Horn said the condition will continue to worsen with shortness of breath, leading to the need for oxygen to be administered, more narcotics for the pain, constipation, and the patient getting steadily weaker.

“It’s a bad way to die,” Horn said.

Schmitz is 61.

“Is there any question she has suffered greatly?” Satterley asked.

“No question,” Horn responded.

Under cross-examination, defendant attorneys asked Horn if he would agree there was no proof talc caused mesothelioma. Horn answered he was not aware of any data that said so.

He was asked if his opinion of the cause of Schmitz’s disease was an assumption based on findings by researchers such as Dr. William Longo, a Georgia-based microscope analyst who said there is asbestos in the powder and a key expert witness for the plaintiff.

“I assumed Dr. Longo is accurate and there is asbestos in the (powder) products,” Horn said.

“You’re aware there are equally divided people (scientists) on the other side who say the opposite?” A defendant attorney asked.

“I understand,” Horn said. “I wouldn’t be in a position to criticize (Longo).”

“If those findings were incorrect your opinion would change?”

Horn agreed.

Johnson & Johnson is represented by Alexander Calfo of King and Spalding and Peter Mularczyk of Foley and Mansfield. Colgate is represented by Gary Sharp of Foley & Mansfield and Michael Battle of Barnes & Thornburg.

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