Northern California Record

Monday, November 11, 2019

Closing arguments made in woman’s lawsuit against Johnson & Johnson over mesothelioma diagnosis

State Court

By John Sammon | Oct 8, 2019


TORRANCE – A year after a jury deadlocked to no decision, closing arguments were made Monday in a new trial to decide if alleged asbestos in Johnson & Johnson Baby Powder caused Carolyn Weirick to develop mesothelioma.

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

Weirick, a former school counselor, sued Johnson & Johnson over its baby powder and an adult product called Shower to Shower that she reportedly used for 40 years.

Stuemke and Ewald

The case is one of hundreds against Johnson & Johnson pending across the country, most filed by women alleging asbestos-tainted baby powder caused them to develop ovarian cancer. Mesothelioma is a far rarer disease with 3,200 cases reported annually in the U.S.

Doctors give Weirick little chance for survival.

The month-long trial pitted plaintiff attorneys who alleged the company sold baby powder it knew was toxic causing Weirick's cancer, versus attorneys for Johnson & Johnson who maintained plaintiff lawyers wanted to identify everything they found as asbestos, cherry-picking evidence to support that contention.  

Jay Stuemke, an attorney for Weirick, said company officials knew for decades there was asbestos in the baby powder but chose to ignore it, hide from it or combat the findings with their own expert witnesses.

He held aloft a bottle of the baby powder for the jury to see.

“This bottle and more than a hundred like it contained asbestos,” Stuemke said. “This disease (mesothelioma) is killing her. This is a chance for you to communicate clearly with Johnson & Johnson about their products. It is never acceptable for a cosmetic product to contain asbestos.”

Stuemke said there is overwhelming evidence the baby powder caused Weirick’s disease.

“That exposure to asbestos was a likely cause from heavy (powder) use is in her medical records,” he said. “There was asbestos in the baby powder and Johnson & Johnson knew it.”

Stuemke said the plaintiff’s case was based on evidence, scientific findings in literature, testing of the products and the findings of Dr. William Longo of the MAS materials analyzing lab in Georgia. Longo served as an important plaintiff witness in the trial and said he had found asbestos in the baby powder.

Stuemke said Longo’s methods of testing were more sensitive than those employed by scientists hired by Johnson & Johnson officials. He said the company had shied away from more thorough testing, afraid of what might be found in the baby powder.

He said Dr. Matthew Sanchez with the R.J. Lee Group lab in Pennsylvania, an expert witness for Johnson & Johnson who had testified there was no asbestos in the powder, had found amphibole minerals present three-fourths of the time.

“The Food and Drug Administration (FDA) found 117,000 (asbestos) fibers per gram of powder,” Stuemke said. “R.J. Lee found regulated asbestos.”

Stuemke exhibited a slide that said powder ground from talc mines in Italy had tested positive for asbestos in 18 of 32 samples, 31 of 38 samples from a mine in Vermont, and seven out of 18 from mines in China.

He accused Johnson & Johnson of calling asbestos non-asbestos.

“The human body does not care how you label it,” Stuemke said. “What matters is what the fiber is. J&J believes if you call it something else it’s safe.”

Stuemke said the R.J. Lee Group had been referred to by one critic as a “whore.”

“They’re the company to go to if you have a problem (asbestos).”

Cleavage fragments, crushed particles of talc rock to be turned into powder, attorneys for Johnson & Johnson maintained were not asbestos. Plaintiff attorneys disagreed.

“The Environmental protection agency (EPA) makes no distinction between fibers and cleavage fragments if they are the same composition and shape,” Stuemke said.          

Stuemke also said tremolite, an asbestos-related mineral, had been found in the powder, adding that Johnson & Johnson could have switched to harmless corn starch instead of talc, but did not.

“They owned a talc mine and not a cornfield,” he said. “They chose not to stop (selling talc powder).”

He accused the company of fraud and negligence.

Stuemke said one of the company’s expert witnesses charged a $400,000 court fee during the trial in part because he was temporarily separated from his family. He asked the jury how much Weirick should be awarded for the permanent loss of her family due to her death from mesothelioma.

John Ewald, an attorney for Johnson & Johnson, said it was difficult to set sympathy for Weirick aside, but the jury must do so. He indicated plaintiff attorneys were only presenting selected and incomplete portions of the evidence.

“Why do they keep doing this? Ewald asked. “He (Stuemke) is playing to your fears. The FDA tested Johnson & Johnson baby powder in 2010 using an outside lab and didn’t find any asbestos. They (plaintiff lawyers) said J&J designed the FDA test, it’s not true.”

Ewald said plaintiff attorneys had a burden of proof they had not met. 

“Allegations without evidence are not proof,” he said. “Speculation is not evidence.”

Ewald said numerous health and safety organizations such as the National Institute for Occupational Safety and Health (NIOSH) had tested Johnson & Johnson Baby Powder and no asbestos had been found.

He asked the jury if Johnson & Johnson were trying to hide asbestos in its baby powder, why would it invite organizations like NIOSH and Harvard University to test it.

“It doesn’t make sense,” Ewald said. 

Ewald said the product began marketing in 1896 and is still on the shelves.

“They can test it and they have,” he said.

Ewald said researchers at Mt. Sinai Hospital tested the powder and found no asbestos. He added that after a scare about talc powder in 1976, the FDA tested 76 samples of the powder and also found no asbestos.

“In 1986 there was a citizen’s petition asking for a warning label,” Ewald said. “The FDA said there was no basis to conclude there was a health hazard.”

In 2010, the FDA did a test of Chinese talc and again Ewald said no asbestos was found.

“Dr. Longo believes he’s the only one who can find asbestos,” Ewald said.

Ewald called Longo a career expert witness who made $30 million testifying in court.

He accused Longo of flip-flopping on his opinions, saying the baby powder contained asbestos only after becoming a paid plaintiff witness. He exhibited for the jury a statement from Longo before 2012 that said, “Asbestos in talc is an urban legend.”

Ewald likewise said another plaintiff witness in the trial, Dr. Jacqueline Moline, a New York-based researcher, also never testified there was asbestos in talc powder until she was paid as a witness.

Ewald said the strategy of plaintiff lawyers was to take something that is known and then call it something it’s not.

He called the idea that wherever there are non-asbestos amphiboles there also have to be asbestos minerals as “absurd.”  

Asbestos fibers are long and thin with a length to width ratio of 5-to-1 or greater.

“If it has over a 5-to-1 ratio, Longo calls it asbestos even if it’s not,” Ewald said.

He said plaintiff experts were not following the definitions of asbestos set by regulatory bodies, but counting anything resembling asbestos fibers as asbestos, including cleavage fragments.

“Cleavage fragments are not asbestos,” Ewald said. “Asbestos grows in an asbestos-form habit.”

He said the company had exhaustively tested the powder.

“They tested it at every step,” Ewald said. “They surpassed industry standards.”  

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