Johnson & Johnson attorneys claim conflict of interest in baby powder testing

By John Sammon | May 7, 2019

NEW YORK – Attorneys defending Johnson & Johnson in a New York talc powder trial alleging asbestos contamination said a plaintiff expert witness who found the highest concentrations of asbestos in three baby powder bottles was provided with testing samples from the father of a plaintiff attorney - a potential conflict of interest they contend.

They said the credibility of the testing and testimony by Dr. William Longo, a microscope researcher at the MAS materials lab in Georgia, has been challenged by the revelations during testimony taken in an earlier asbestos contamination trial in California.

Longo has been a major expert witness for plaintiffs suing Johnson & Johnson over alleged asbestos in its baby powder.

The J&J defense attorneys in the New York trial asked Judge Gerald Lebovits of the Supreme Court of New York to allow the testimony from the California asbestos trial to be submitted as a "judicial admission."  

“The true origin of these (baby powder) bottles----revealed in an in-court admission by plaintiff’s co-counsel in a proceeding in California on March 11, 2019, goes directly to Dr. Longo’s credibility and the credibility of his test results,” reads the complaint letter from attorneys for Johnson & Johnson, the New York law firm of Patterson, Belknap, Webb & Tyler.

Hundreds of lawsuits against Johnson & Johnson are pending in courts with plaintiffs saying their use of the baby powder contaminated with asbestos caused them to develop cancer. Most of the plaintiffs are women who said they developed ovarian cancer, although cases of mesothelioma, a deadly cancer of the linings of the lungs, are on the rise.

Two of the asbestos contamination cases currently being heard are the New York case Olson v. Brenntag (Johnson & Johnson is a defendant), and a case in the Alameda Superior Court, Schmitz v. Johnson & Johnson.

Last March, another asbestos trial was held in Alameda in which a jury awarded plaintiff Terry Leavitt $29.4 million for the mesothelioma she contracted finding that Johnson & Johnson was liable for the disease because of asbestos in its baby powder.

Attorneys for Patterson Belknap said that during testimony in the Leavitt trial it was revealed Longo had been supplied with baby powder not from a “disinterested collector," but from a man named Steven W. Berkness. 

Berkness is the father of a lawyer named Rachel Berkness who was employed at the time by the Oakland-based law firm of Kazan, McClain, Satterley & Greenwood, the attorneys for plaintiff Leavitt.

That law firm is also representing the plaintiff Patricia Schmitz in the current Alameda asbestos trial.

J&J defense attorneys said the discovery not only incriminated the credibility of Longo's testing of baby powder and his testimony, but also the testimony of other expert witnesses who based their opinions on findings by Longo—that there were high concentrations of asbestos in the baby powder.

The letter said Longo was the only expert to claim finding asbestos in certain samples.

“The jury is entitled to know these facts,” the letter of complaint to Judge Lebovits states.

Defense attorneys said their own expert witness Dr. Matthew Sanchez of the R.J. Lee Group testing lab in Pennsylvania stood ready to provide more information to the New York Court, but to date had been prevented from doing so because of a concern he could not do so in an “admissible way.”

Attorneys for the plaintiff in the New York case the law firm of Maune, Raichle, Hartley, French & Mudd of St. Louis responded that the letter from defense attorneys insinuated wrongdoing where none exists.

They said Longo received 30 bottles of the powder in 2017 from various sources, some off the shelf or acquired from eBay, and three samples came to the Kazan law firm from a “collector” who provided certification of where he got them.

“While J&J alleges they just recently discovered that former Kazan employee Rachel Berkness is related to the same Steven Berkness who provided three of the 30 J&J talc samples, the facts do not support such an assertion,” the letter from the plaintiff attorneys states.

The letter said J&J attorneys were well aware in advance going back weeks before, that Rachel Berkness was an associate working for the Kazan law firm and that the firm corresponded with her in talc powder cases. They said an affidavit signed by Steven Berkness openly explained he had been a collector of talc powder bottles and old medicine kits since 1980, and that no tampering with bottles had taken place.

“No material has been added to them (bottles) and the containers and their contents have not been manipulated in any way,” the letter states.

The letter further stated that a contention from defense attorneys that Joseph Satterley, the plaintiff attorney for both trials in Alameda, had made a statement that amounted to a “judicial admission,” was incorrect.

“Such a statement is pure hearsay,” the letter said. “It would be error to admit such prejudicial hearsay in this (New York) case.”

Requests for comment from Satterley and Denyse Clancy, also a plaintiff attorney with the Kazan firm in the Alameda asbestos trials, went unreturned.

Alex Calfo, the Johnson & Johnson attorney in the current Alameda trial, declined comment.

In a transcript of testimony taken on May 1 in the Schmitz trial (Alameda), Longo was questioned about the three bottles.

“Now Dr. Longo, you know Mr. Berkness, the collector who shipped the three Johnson’s baby powder bottles to Mr. Satterley and Ms. Clancy’s law firm, has a daughter who was a lawyer at their firm, right?”

“Yes that’s correct,” Longo responded.

“And if you compare what you claim to have found in your February 2019 report to your original report, the Johnson’s baby powder bottle that you claim has the highest concentration (asbestos), 0.035, that highest concentration bottle came from the Kazan law firm, didn’t it sir?”

“That’s correct,” Longo said.

“And it would have come from Mr. Berkness, true?”

“Yes sir.”

“In fact, that Johnson’s baby powder bottle that came from Mr. Berkness is three times higher in concentration (asbestos) than the next closest bottle, right?”

“Yes sir that’s correct.”         

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