Northern California Record

Tuesday, April 7, 2020

Closing arguments heard in Schmitz mesothelioma trial, J&J lawyers argue disease was spontaneous


By John Sammon | Jun 4, 2019

Satterley and Calfo

OAKLAND – Closing arguments were heard Monday in a trial over allegations that Johnson & Johnson baby powder and a face powder product called Cashmere Bouquet produced by Colgate-Palmolive caused a woman’s mesothelioma.

During the seven-week trial attorneys for Patricia Schmitz said asbestos in the powders caused her deadly disease while attorneys for Johnson & Johnson countered that the mesothelioma was spontaneous in nature.

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

Schmitz, 61, a former teacher, mother of two and grandmother, used the powder products for 40 years before being diagnosed last year with mesothelioma, a cancer of the linings of the lungs. Doctors hold little hope for her survival.

The trial is the latest among hundreds of cases pending against J&J around the country. Most have been filed by women alleging the powder caused them to develop ovarian cancer, though lawsuits alleging mesothelioma - a much rarer disease - have increased in recent months. 

Many lawsuits have originated in northern California, however the Schmitz trial is only the second hearing in the area. Most trials in the past have been held in Los Angeles courts.

Joseph Satterley, Schmitz’s attorney, told a jury he believed the burden of proof accusing Johnson & Johnson and Colgate-Palmolive of intentional misrepresentation and endangering the public with the powder products had been met.

He said the case was about values and trust.

“We believe the evidence will show that Patricia Schmitz was exposed to asbestos from Johnson & Johnson baby powder,” Satterley said. “To continue to sell for years and years a product knowing there is a cancer risk is not reasonable.”  

Satterley said tests of the powder had showed positive for asbestos and the testimony of doctors and exhibited company documents in the case supported a finding of negligence by the powder companies.

In addition, he said the companies were liable for product liability and concealment.

“Was potential risk known or knowable?” he asked. “Nobody knew there was asbestos in the talc. There were a few scientists (who knew). But did the general public know it could cause harm? Patricia Schmitz didn’t have a clue.”

Satterley said there was no warning about risk on the bottles of talc powder.

“This was intentional misrepresentation," he said. "The actual bottles said it was the purest protection. It isn’t pure - this has been known for decades. It wasn’t pure and it didn’t protect.”

Satterley said testing by expert plaintiff witnesses, including William Longo, a Georgia-based microscope researcher, and Alice Blount had shown there was asbestos in the talc powder, including fibers of tremolite and chrysotile, both asbestos-related minerals.

“Johnson & Johnson in their marketing department knew it was a problem,” Satterley said. “They told doctors in the 1970s there was no asbestos in the product. They wanted to enhance the franchise.”

Satterley indicated asbestos fibers in the powder could be easily breathed.

“Puffs of dust just come out of it (bottle),” he said. “They (J&J) used it in their marketing over and again that it’s pure, pure, pure. They were told in 1974 (company memo) we cannot say it’s pure. This supports the intentional misrepresentation claim.”

Satterley told the jury Schmitz should be awarded in the millions of dollars for the pain and suffering she has endured.

“She (Schmitz) knows her life is cut short,” Satterley said. “This (mesothelioma) is one of the worst possible injuries you can imagine. The pain and suffering is horrible.”

He asked the jury if the defendant acted with malice, fraud and oppression.

“It only has to be one,” Satterley said. “If it shows indifference for the lives and safety of others.”

Alex Calfo, an attorney for Johnson & Johnson, said plaintiff attorneys had cherry-picked information in documents to support their case.

“What company keeps documents for 75 years that’s going to hide (truth)?” he asked. “You’ve heard a lot of bad things about Johnson & Johnson. I’m going to show you it’s not true.”  

Calfo said the company had done testing of its baby powder, including the use of outside testing labs for decades, and no asbestos had been found.

“There is no epidemiological study in the world that shows cosmetic talc causes mesothelioma,” he said. “Not one peer-reviewed study. Not one of Mrs. Schmitz’s doctors said talc caused mesothelioma. To this day, the FDA (Food and Drug Administration) does not require a warning label. It has never been said outside of court because it’s false.”

Calfo said the testimony of Longo had been dishonest and that Longo had never tested cosmetic talc until 2017 when he was hired as an expert witness by plaintiff attorneys.

“If it was true, why did Johnson & Johnson go above industry standards using labs like McCrone (independent Illinois lab)?" he asked.

Calfo said if Johnson & Johnson conspired to hide asbestos in its products, others also had to be conspirators in the scheme, including doctors, government officials, scientists and J&J employees.

“For 125 years?” he asked.

He said plaintiff expert witnesses, including Lee Poye, a Houston researcher, and Dr. Gerald Abraham, a Florida psychiatry doctor, had relied on Longo’s findings.

“Not one published study concluded talc causes mesothelioma,” Calfo said. “Longo was not truthful. Not one single plaintiff witness said Johnson & Johnson baby powder had asbestos until they were hired by plaintiff lawyers.”

Calfo said Schmitz had exhibited none of the markers of asbestos exposure, including the development of pleural plaques (collagen fibers in the lungs).

“In women, 80 to 90 percent of mesothelioma cases can’t be attributed to exposure to asbestos,” he said. “Johnson’s baby powder is simply not contaminated with asbestos.”

Calfo said Schmitz's mesothelioma was a spontaneously contracted disease and not from using cosmetic talc powder.

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Alameda County Superior CourtJohnson & Johnson

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