Plaintiff attorneys question motives of defendants' expert in Johnson & Johnson trial

By John Sammon | May 15, 2019

OAKLAND – Attorneys for plaintiff Patricia Schmitz on Tuesday went after an epidemiologist expert witness for Johnson & Johnson and Colgate-Palmolive questioning his fairness in declaring that asbestos did not cause the plaintiff’s mesothelioma.

“Do you agree that one of the goals of Exponent is to manufacture doubt regarding plaintiff cases?” Denyse Clancy, Schmitz’s attorney, asked.

“I don’t agree,” said witness Dr. Suresh Moolgavkar, an epidemiologist bio statistician for the Menlo Park, California scientific consulting firm Exponent Inc.

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

Schmitz sued Johnson & Johnson over its baby powder and Colgate-Palmolive over a face powder product called Cashmere Bouquet claiming use of the products for more than 40 years caused her to develop mesothelioma, a deadly cancer of the linings of the lungs.

During the trial, defendant attorneys called Moolgavkar as a witness to testify and buttress their contention that Schmitz contracted pleural mesothelioma not from baby powder but as a result of a “spontaneous” chance event that happened for no known reason.

Doctors have said they do not expect the woman - who is 61, a former school teacher and the mother of two with grandchildren - to survive past the summer.

During Tuesday’s session, Clancy sought to portray Moolgavkar as a well-paid witness for business defendants who use asbestos in their products and want to deny the dangers.

She cited former trials at which Moolgavkar supplied testimony, including what she alleged was his downplaying of the dangers of numerous products including diesel exhaust and the compound formaldehyde, used in building materials and drywall, as well as cosmetic talc baby powder.

The list of companies whose products Moolgavkar supplied testimony for included W.R. Grace and Union Carbide.

“Your company’s (Exponent's) business model is to defend products these companies are manufacturing,” Clancy said. “You testified 11 times for Johnson & Johnson.”

“If it’s on the list that’s correct,” Moolgavkar said.

“In each (trial) you said there is no epidemiological causation (mesothelioma) correct?”

“Correct,” Moolgavkar responded.

Clancy asked Moolgavkar about the town of Libby, Montana, which has been identified as an environmental risk for residents because of the presence of the mineral vermiculite in its mines. Vermiculite is used in insulation and can contain asbestos fibers.

Clancy said a criminal action was filed against mine owners in Libby in 2009.

“Were you aware the Environmental Protection Agency (EPA) declared the town a super fund (contamination cleanup) site?”

“I am,” Moolgavkar said.  

Clancy asked Moolgavkar if it was his opinion there was no epidemiological evidence that Schmitz’s lifetime use of J&J baby powder increased her risk of mesothelioma.

“That is what I would have testified,” Moolgavkar said.

She named several other plaintiffs in past trials over baby powder alleging asbestos exposure.

“Yes ma’am,” (no epidemiological proof) Moolgavkar said regarding each plaintiff.

Moolgavkar said he was paid by Exponent approximately $500,000 but with a $400,000 bonus depending on how well the company was doing.

Clancy attacked Moolgavkar’s contention that mesothelioma in Schmitz’s case was a spontaneous event made more likely by aging.

“All the way back to 2015, you were teaching defense attorneys about aging,” Clancy said.

“This has been my life’s work,” Moolgavkar said.

“For free?” Clancy asked.

“I’m happy to educate attorneys for free,” Moolgavkar said.

“You never treated someone with mesothelioma?” Clancy asked.

“Correct,” Moolgavkar responded.

Talc used in Johnson & Johnson baby powder is a mineral that has been mined in Vermont, Montana, North Carolina, Italy and, more recently, China.

Clancy disputed Moolgavkar’s earlier statements that studies conducted among miners and millers of talc had resulted in no cases of mesothelioma, saying follow-up studies weren’t conducted long enough. Mesothelioma has a latency period from exposure to illness at a minimum 10 years but which can extend to 40 years.

“You said zero mesothelioma (talc miners),” Clancy said.

“Yes,” Moolgavkar agreed.

Clancy produced a document that reported a case of mesothelioma.

“It was not peer-reviewed,” Moolgavkar said of the paper.

“Mesothelioma caused the death of a New York worker and a Vermont talc man, see that?” Clancy said.

“That’s what it says,” Moolgavkar said.

Clancy also produced an inter-office Johnson & Johnson letter dated 1977 in which a concern was expressed regarding a study to be conducted by the National Institute for Occupational Safety & Health (NIOSH).   

Attorneys for Johnson & Johnson on cross-examination asked Moolgavkar to explain the extent of what they maintained were exhaustive studies on miners and mill workers of talc with no cases of mesothelioma reported.

"There were 60,000 person years of observation," Moolgavkar said.

He added that one study of Italian talc miners was begun in 1921.

"There were zero findings, were those consistent?" he was asked.

"Yes, sir," Moolgavkar answered.

"Is it important to be consistent?"

"Yes, if multiple studies yield consistent results, you can be confident."

Moolgavkar said although respiratory lung conditions had resulted in the miners like fibrosis, since no mesothelioma had resulted, it would be inconceivable that consumers of talc baby powder would show an increased risk.  

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