In a Northern California trial to determine if a man's cancer was caused by Johnson & Johnson baby powder, plaintiff attorneys for Anthony Valadez on Wednesday continued to focus on a finding of trace asbestos in the powder in 2019 by the U.S. Food and Drug Administration (FDA).
J&J’s top safety officer continued to maintain that the powder is clean.
“Did you test a single bottle of the 38,000 (recalled) bottles for asbestos?” asked Joseph Satterley, Valadez’s attorney.
“I don’t believe we have,” responded Dr. Edwin Kuffner.
Plaintiff attorneys later exhibited J&J company emails in which officials in the early 2000s expressed concern about the safety of the powder.
The trial is being streamed live courtesy of Courtroom View Network.
Kuffner, a Pennsylvania toxicologist and J&J’s chief medical officer, testified for a second day. The person responsible for baby powder safety, he told defense attorneys on Tuesday the company had found no asbestos in the powder after numerous tests conducted by J&J—in response to the FDA finding of trace amounts of chrysotile in two of three samples.
The powder samples tested by the FDA were described to J&J officials as “poisonous and adulterated.” Kuffner said the samples were likely contaminated (perhaps in a lab).
Chrysotile is one of several forms of asbestos and is noted as difficult to spot because it can damage DNA (causing cancer) and then disappear, after being swallowed by the body’s defensive white blood cells.
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.
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.
When the FDA reported the chrysotile finding, Kuffner said he was in Poland and flew back to the U.S. to respond to it. He said he and staff worked intensely for days communicating with the FDA and later performed 155 tests of the product. No asbestos was found, Kuffner stated.
“Did you want a full review?” Satterley asked.
“Absolutely,” Kuffner responded.
Despite no asbestos turning up in the J&J testing Kuffner ordered the withdrawal of 38,000 bottles from the lot tested by the FDA.
“J&J could have recalled all the powder. It was from the same mines,” Satterley said.
“There wasn’t a need for that,” Kuffner said.
Satterley asked Kuffner if he had anything to do with two lawsuits, one filed in 2022 by J&J against Dr. Jacqueline Moline, a New York epidemiologist researcher who had linked talc powder to cancer. The company contended that she had financially injured the company and its name.
Kuffner denied participation in the lawsuit.
“I’m a health and safety officer,” he said.
The company has been hit with 40,000 lawsuits nationally over its baby powder and earlier this year stopped selling it with talc in the powder opting for corn starch instead.
Kuffner said that decision was not reached because of safety issues.
Historically, the FDA in its testing had reported no asbestos in the powder. Neither had other world regulatory agencies like Health Canada, a government agency in that country responsible for public health.
Both plaintiff and defense lawyers have agreed there is no known safe level of asbestos exposure.
Satterley exhibited a 2008 communication from Todd True, a J&J vice president, to Fred Tewell, a J&J official, expressing concern about the powder.
“The reality that talc is unsafe for use around babies is disturbing,” True said in the email. “Have we looked at corn starch? I’d like to develop a strategy with you to eliminate the use of talc under Johnson’s Baby.
"I’m on a mission,” True continued, “to strongly consider removing talc from the baby aisle. I know it will be controversial but it’s an easy fix and win. We have already started this through a renaming proposal and a rewrite of the back label copy. We need to work hard to justify the cost implications.
"I see great positives with our challenge to regain moms' trust and deliver on our baby expertise,” True added.
Satterley exhibited a (proposed) baby powder bottle warning label. It showed a baby face with an X across the mouth. The copy accompanying the graphic said, “Keep powder away from child’s face to avoid inhalation, which can cause breathing problems.”
An internal email described the baby powder business as a $70 million business in the U.S. alone.
Satterley asked Kuffner the amount spent in 2009-2010 to consider switching to corn starch although the company at the time did not.
“Money was spent,” Satterley said. “How much was spent to remove talc?”
“I’m not sure,” Kuffner said. “There wasn’t a reason (to remove talc) because the powder was safe.”