Defense grills plaintiff witness about objectivity in Johnson & Johnson Colgate-Palmolive trial

By John Sammon | May 8, 2019

OAKLAND – Attorneys defending Johnson & Johnson and Colegate-Palmolive on Wednesday questioned a plaintiff expert witness in an attempt to portray him not only as a highly paid mouthpiece for plaintiffs in asbestos trials. They also contended Dr. David Egilman served as a consultant who was paid by companies that used asbestos in their products and then criticized them for using the mineral.

“You criticized companies that made products with asbestos, right?” asked Alex Calfo, the attorney for Johnson & Johnson.

“Yes,” Egilman said.

“You get money,” Calfo said.

“For consulting,” Egilman clarified.

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

Egilman, a Massachusetts pulmonologist called by attorneys for plaintiff Patricia Schmitz, appeared for a second day of testimony to determine if the Johnson & Johnson baby powder and a face powder product called Cashmere Bouquet made by Colegate-Palmolive caused Schmitz to develop mesothelioma. The disease is fatal and incurable, a deadly cancer of the linings of the lungs.

Calfo asked Egilman if he was a board certified toxicologist. Egliman agreed he was not.

Calfo noted Egilman’s testimony the previous day in which he had said corn starch unlike cosmetic talcum powder used in the Johnson & Johnson baby powder was risk-free and more effective at drying up sweat.

“You told us it (corn starch) has higher absorption,” Calfo said.

"Yes," Egilman said.

“You agree that silkiness is an important factor with consumers?” Calfo asked.

“Not really,” Egilman said.

The day before Schmitz had testified that before her illness she had been “chunky” in weight and used the powder products because of their smoothness and softness on her body.

“It was known that corn starch has a certain grittiness,” Calfo said. “Johnson & Johnson developed it as an addition not a substitute (for talc powder), right?”

“No it (corn starch) is an alternative,” Egilman said.

“In the 1970’s Johnson & Johnson was testing corn starch in addition to baby powder,” Calfo said.

“No question,” Egilman said.

Calfo challenged estimations of the duration of time it took for Schmitz to put the powder on, estimates made by Egilman after conducting interviews with Schmitz. Egilman’s notes said the woman took three minutes to sprinkle on the powder during applications. 

Calfo said in a previous deposition Schmitz stated the time was 20 to 30 seconds.

“That (30 seconds) was the time it took to put the powder on,” Egilman said. “But the total exposure time was three minutes because it (powder) was in the air.”

Egilman said the exposure estimate was also arrived at in accordance with findings by the National Institute for Occupational Safety and Health (NIOSH).

He calculated an exposure level of use of the powder products in the billions of asbestos fibers.

“Do you agree that an expert should never put money above science?” Calfo said.

Egilman said yes.

Calfo listed a number of companies that produced products containing asbestos that retained Egilman as a litigation consultant. They included Owens Corning (insulation and roofing), Federal Mogul (auto parts), Foster Wheeler (construction), Viking Pumps (oil transfer pumps) and General Electric.

“All these products were designed to contain asbestos?” Calfo asked.

“Yes,” Egilman said.

“General Electric paid you $300,000 a year, right?” Calfo asked.

“For a year,” Egilman said.

“It’s important not to cherry-pick evidence to favor plaintiffs, right?” Calfo asked.

“Yes,” Egilman agreed.

Calfo said Egilman had shown otherwise by violating a confidentiality order in a past court case 15 years ago in which he provided information for an article that ran in the New York Times.

"You were giving confidential documents to the New York Times, right?" Calfo asked.

“Wrong,” Egilman said. 

Calfo pressed again, telling Egilman he had gotten in trouble in a court case involving the anti-psychotic drug Zyprexa made by Eli Lilly and Co.

“Yes,” Egilman agreed.

“You told the jury you did it to protect the public health.”

“Yes,” Egilman said.

“You were hired by plaintiff lawyers (Lanier Law Firm) to be a consultant in a case involving Zyprexa,” Calfo asked.

“That’s correct,” Egilman said.

“You signed a declaration under oath about what you had done, right?”

“Correct,” Egilman said.

“You signed voluntarily and under penalty of perjury, didn’t you?”

“Correct.”

Calfo said Egilman had discussed Zyprexa with a New York Times reporter.

Egilman agreed.

“It (declaration) said we discussed Lilly’s confidential documents including interpretation of the documents,” Calfo said.

“My interpretation,” Egilman said.

“It goes on to say you understand from review of the materials provided in the litigation there was another side to the Zyprexa story, did I read that correctly?” Calfo asked.

“You did,” Egilman responded.

Calfo said the declaration further stated that additional information regarding the beneficial impact Zyprexa had on patient’s lives came to light. 

Is that right?" Calfo asked.

“Yes,” Egilman said.

Calfo said after reading a set of documents, Egilman released a set of documents that did not represent the entire set of information concerning Lilly’s actions and knowledge.

"That's correct," Egilman agreed. "I released all the documents I had. I didn't have all the documents (in the case)."

Calfo said Egilman also communicated with a reporter from National Public Radio and state attorney generals asking them focus attention on Zyprexa.

"Did I read that correctly?" Calfo asked.

'You did," Egilman said

“It says you knew from experience this was a benefit to the plaintiffs,” Calfo said.

“That’s absolutely true,” Egilman responded. “The information would benefit the plaintiffs.”

“You used the word plaintiff, not patients and not the public, right?” Calfo said.

“That’s correct. The plaintiffs were the patients and the public,” Egilman said.

"You indicated, you recognized it was not in the public interest to only put out one side of the story, right?" Calfo asked.

"That's part of that (declaration) paragraph," Egilman said.

Calfo asked Egilman if between 1971 and 1978 Johnson & Johnson had submitted to the Food & Drug Administration (FDA) thousands of pages of asbestos test reports.

“All the negative (for asbestos) test results, though I don’t think it was in the thousands of pages,” Egilman said.

“Almost 3,000 documents to the FDA,” Calfo said.

“Not (all) test results,” Egilman corrected.

Under cross examination, Joseph Satterley Schmitz's attorney questioned Egilman about studies of workers who dug and processed talc, a mined mineral. Egilman said in some cases studies appeared to have been altered which he described as “quite suspicious.”

Egilman said in one case a talc mill worker who developed mesothelioma had been excluded from a study of worker exposures.

“Have any of the talc companies provided you with the employee rosters of all the mines so you can do a comparative analysis?” Satterley asked.

“No, not for the mines and not for the manufacturing facilities which are in the United States,” Egilman said.   

“Is it a problem with epidemiology studies if you don’t have all the information on the various exposures an individual has?”

“Correct,” Egilman said.

        

        

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