Attorneys defending Johnson & Johnson in a Northern California trial in which a man claims that his mesothelioma cancer was caused by their baby powder sought to portray a plaintiff expert witness as a biased, well-paid courtroom careerist.
Defense Attorney Michael Brown with Nelson Mullins in Baltimore said Dr. David Egilman, a Massachusetts-based occupational health professor at Brown University, had it both ways. He was paid to testify for plaintiffs, and also paid by asbestos companies that he sometimes testified in court against---while serving the companies as a consultant.
“Georgia Pacific Company, you testified they failed to warn after they hired you for $75,000 per year,” Brown said.
“Right,” Egilman agreed. “I testified against them. I call them as I see them.”
Later in the session Egilman said that Johnson & Johnson had submitted testing information to government regulators designed to mislead them about the hazards of talc powder.
The trial in the Alameda Superior Court in Oakland is being streamed live courtesy of Courtroom View Network.
This week the courtroom was emptied and examinations of witnesses were conducted remotely via the internet after one of the trial participants tested positive for COVID.
Valadez is suing Johnson & Johnson and other corporations, including retailers Safeway and Target, plus LTL Management Company, claiming exposure to talc powder for 23 years between 1998 and 2022 caused his mesothelioma, a rare cancer of the linings of the lungs.
Valadez has pericardial mesothelioma, the rarest of three types of the disease. The other two are pleural and peritoneal mesothelioma.
Johnson & Johnson has faced 40,000 lawsuits across the country in recent years over its talcum powder. It discontinued selling talc worldwide in 2023 in favor of corn starch which scientists claim is safe.
J&J subsidiary LTL, in bankruptcy in New Jersey, proposed to pay approximately $9 billion to settle the litigation. A federal appeals court threw out an earlier attempt by the company to settle claims in bankruptcy and legal actions against the company had been stopped. However, a U.S. bankruptcy court allowed the Alameda proceeding to be held because Valadez is only expected to live a short time. Even if he wins a judgment the bankruptcy proceedings would forestall for the time being any collection of damages.
The outcome of the Alameda trial could impact other plaintiffs coming forward to join a settlement. Plaintiffs have been trying to get the bankruptcy process revoked.
On Monday, Egilman told Joseph Satterley, Valadez’s attorney, it was his opinion that the 24-year-old Merced resident had contracted the fatal illness from exposure to asbestos in Johnson & Johnson talc powder. No pointy elongated-shaped asbestos fibers were found in a tissue sample taken of Valadez. However, Egilman said this was not unusual. The sample taken was a small one, and chrysotile - a form of asbestos - can do its DNA damage quickly and then disappear after being swallowed by protective white blood cells.
Brown’s questioning of Egilman on Tuesday focused on his expertise in the field of health, his high rate of pay for plaintiffs and asbestos companies, and what Brown portrayed as Egilman’s unwillingness to consider other potential sources of asbestos contamination.
“You don’t possess a PhD in epidemiology,” Brown said.
“Correct,” Egilman answered.
“You’re not an oncologist.”
“That’s correct.”
“You’re not a materials scientist.”
“Correct.”
“You’re not a board-certified toxicologist.”
“That’s correct.”
“You don’t treat patients.”
“Not anymore that’s correct.”
“People can get pericardial mesothelioma without exposure to asbestos,” Brown said.
“Sure, anything is possible,” Egilman agreed.
Egilman denied that he had been paid by asbestos companies to not testify in court against them. But he said he had served companies over the years as a consultant providing information about asbestos.
Companies included Owens Illinois, an Ohio glass company, Federal Mogul, a Michigan auto products firm, Robertson Ceco, a California building products manufacturer and Kelly-Moore, a California paint company. He said that payments from the companies could be in the range of $100,000 for consulting work billed through invoicing or made on a retainer basis with payment up-front.
Egilman agreed that it would be possible for a consultant to keep retainer payments even if no work was performed.
“You’ve been an expert (witness) for over 35 years and you’ve made millions of dollars,” Brown said.
“Yes,” Egilman answered. “I’ve done a lot of work for companies and in the interest of injured workers.”
Brown indicated that Egilman, in pinning Valadez’s cancer on baby powder, had not considered that his father had worked around asbestos as a handyman at housing job sites. Valadez had also attended school in an old building.
Egilman said the latency period, the time from exposure to asbestos to the onset of illness which can take decades, wasn’t long enough in those cases.
“He (Valadez) already had the cancer formed,” Egilman said. “There’s no way to know for sure but it takes time for a cell to divide and cause the (cancer) symptoms.”
On Wednesday, Brown attempted to show that millions of people have used talc products in cosmetics, medicines, paper products, plastics, and Valadez’s cancer is so rare it could not have been caused by baby powder. He said numerous tests had failed to disclose any asbestos in Valadez.
“Why do they keep looking for it?” Brown asked.
“It’s not necessary to find tumors in the lungs,” Egilman responded.
Brown said there are 2,500 cases of mesothelioma in the U.S. and perhaps 10 to 15 cases of the kind Valadez has.
“Maybe one (pericardial mesothelioma) a year?” Brown asked.
“We don’t know, I know it’s rare,” Egilman said. “There is no published data. It’s hard to get information.”
Brown said 200 million people had used baby powder in 1991 and asbestos was used in antiperspirants, hair products, lipsticks, lotions and talc powder.
“Do you dispute asbestos is in these products?” Brown asked.
Egilman said such products were not a dust (powder) that could be breathed.
He disagreed with Brown’s assertion that asbestos could enter the body by drinking water and constitute a hazard.
“Studies have shown you poop it out (asbestos in drinking water),” Egilman said.
Brown said that a research paper showed that miners heavily exposed to working with asbestos had not developed mesothelioma.
“There was not enough latency,” Egilman said of the finding. “If it was 20 years later you would find mesothelioma.”
Brown displayed a 2017 report from the Annals of Epidemiology in which a document stated, “Large occupational cohorts with heavy asbestos exposure there were no cases of pericardial mesothelioma reported.”
A Citizen’s Petition in 1986 asked the Food & Drug Administration (FDA) to require a warning label on talc powder. The FDA response was that exposure risk was less than background asbestos levels.
“There was no basis to conclude without evidence of such a hazard,” a document exhibited by Brown stated.
“There is no need to require a warning label,” Brown said.
“What you read is correct,” Egilman said.
Egilman indicated that findings had been influenced by Johnson & Johnson, data submitted from the company to government regulatory agencies which he called “cut and paste” information.
“You’re saying Johnson & Johnson controlled the government?” Brown asked.
“These are J&J’s data, more or less yes,” Egilman said.