In a trial to determine if a Merced man’s frequent use of Johnson & Johnson baby powder caused him to develop a rare and fatal cancer, a researcher noted for her unorthodox testing methods said on Thursday she had found asbestos in the powder.
“Johnson & Johnson baby powder since the 1970s was it free of asbestos or did it have asbestos?” a plaintiff attorney asked.
“It had asbestos,” Alice Blount, a Rutgers University mineralogist replied.
Blount’s comments were recorded in 2018 in a deposition tape played for a jury on Thursday.
Two J&J officials said later in their recorded depositions that the powder was clean.
The trial now a month long is being streamed live courtesy of Courtroom View Network.
Trace or small amounts of asbestos were reportedly found in some of the testing. It remains to be seen if attorneys defending Johnson & Johnson will attempt to add to their defense the fact that trace amounts were below minimum requirements set by the federal Occupational Safety and Health Administration (OSHA).
Plaintiff attorneys have countered that argument saying that even a small amount of asbestos can kill you, after a latency period that can take decades.
Both sides agree there is no known safe level of asbestos exposure.
From the start of the trial, defense attorneys have hammered on the point that given the rarity of plaintiff Anthony Valadez’s disease and the fact that millions of people use the baby powder, it’s not logical that his illness was caused by it. In addition they have said Valadez could have been exposed to asbestos from other sources than baby powder. They cited his father being a handyman working at housing job sites where asbestos could have been used and Valadez’s attending school in an old building.
Valadez is suing Johnson & Johnson and other corporations including retailers Safeway, Walmart and Target stores 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.
Doctors have given him probably a few months to live.
Johnson & Johnson has faced 40,000 lawsuits nationally over a number of recent years and in 2023 switched from using talc powder worldwide to using corn starch in its baby powder. Experts have said it is safe and asbestos free. The company, through its subsidiary LTL, filed for bankruptcy in 2022 and later offered to settle the lawsuits for $9 billion after a federal appeals court rejected an earlier attempt to settle the claims.
Bankruptcy stopped legal actions against the company. Plaintiffs nationwide want the bankruptcy protective status removed.
A U.S. bankruptcy court allowed the Alameda trial to proceed only because Valadez is not expected to live beyond a few more months. Even if he wins a judgment any monetary award would be delayed until the bankruptcy process is resolved.
Safeway, Walmart and Target stores are accused along with J&J of selling tainted baby powder to Valadez’s mother who then used it on the plaintiff.
During Thursday’s session, testimony consisted of previously recorded deposition tapes of Blount and J&J officials. Blount who reported in the 1990s that she had found asbestos fibers in the baby powder said the mineral was tremolite, one of several types of asbestos.
“Did you consistently find asbestos in it?” she was asked. “Did you find it on multiple occasions from off-the-shelf bottles?”
“I did,” Blount answered.
Five different principal types of testing of powder samples are done by labs. Through the heavy liquid separation method, TEM or transmission electron microscope, the SEM scanning electron microscope, PLM or polarized light microscopy and XRD or X-ray diffraction method.
Plaintiff expert witnesses have testified that heavy liquid and TEM were the best methods, XRD the least sensitive.
Heavy liquid involves using a spinning tube in which liquid is placed to separate heavier materials including asbestos fibers which settle at the bottom of the tube.
In past trials plaintiff attorneys have accused company officials of avoiding the liquid separation method because they were afraid it would turn up asbestos fibers and opted instead for the XRD testing.
Blount, who according to Talcum Powder Cancer Lawsuits.com was a J&J consultant in 1991, used the liquid separation method and optical microscopy. She found 102,000 to 341,000 tremolite asbestos fibers per gram of talc.
Use of XRD or a less powerful microscope to test the samples it is claimed would have resulted in a negative asbestos finding.
A second deposition tape recorded in 2019 featured Nancy Musco, a J&J safety issues officer back in the 1980s. She told plaintiff attorneys her job was to relay information to consumers about the safety of the product.
Plaintiff attorneys produced a report from Blount to J&J saying sample testing had found trace amounts of asbestos. Musco said she had never seen the document before or heard of Blount.
The attorneys said the Blount document was inconsistent with statements from Musco, who had stated that no amount of asbestos had been found and no evidence whatsoever.
“You said there is no evidence and there never was (asbestos in baby powder),” the plaintiff attorney said.
“Yes,” Musco agreed.
“You never read any test reports before making those statements?”
“That’s correct.”
“You just sign (a report) without a reviewing anything. You just rely on what (J&J) lawyers tell you.”
“I was the point person,” Musco said. “I provided the means of information to the correct people who could hear the information. The final say was a legal matter.”
"There is no asbestos in the baby powder,” Musco added.
The next tape was the testimony of John Hopkins, a frequent J&J witness who was called “the face” of the company. A resident of the UK retired from the company in 2000, Hopkins is today an independent consultant. A toxicologist, he served as J&J’s corporate representative during the 1980s and 90s.
“J&J told the public there is not a single (asbestos) fiber in the baby powder,” the plaintiff attorney said.
“Yes,” Hopkins responded.
“J&J agrees that asbestos is a carcinogen.”
“Yes.”
“It doesn’t have any health benefits.”
“It cools the skin and stops chafing,” Hopkins said.
The attorney presented a document from the Colorado School of Mines in 1971 that reported finfing three tremolite particles in a sample of powder.
“That’s what’s written, yes,” Hopkins said of the report.
Hopkins insisted there was no asbestos in J&J baby powder.
“Blount repeatedly told (J&J) that there was asbestos in the baby powder,” the attorney said.
“She expressed her opinion,” Hopkins said.
The attorney produced a 1974 report by a researcher who identified asbestos in a sample. Part of the report had been redacted, altered by J&J officials the attorney said. The sentence (identifying asbestos) was blocked out, replaced by dots to omit the passage.
“The report (blocked out) became a dot, dot, dot,” the plaintiff attorney said. “The report found chrysotile. But the sentence was missing, correct?”
“I’m not going to speculate,” Hopkins answered.
Two short deposition tapes following Hopkins included a J&J company official calling the baby powder our “golden egg,” our “flagship” with a “mother-infant bond,” and an essential part of a $23 billion business.
“It’s a baby company,” he said.
A final tape showed J&J CEO Alex Gorski telling employees the company had recently been in the news because of the asbestos issue.
“The baby powder is safe and does not cause cancer,” he said. “It has never contained asbestos. We have cooperated fully with the Food & Drug Administration (FDA). We are confident in safety and stand behind our products.”