In a six-week trial to determine if Johnson & Johnson caused a man’s mesothelioma a verdict in the case has been postponed three times this week for undisclosed reasons.
The new verdict date is Monday, July 17.
The trial was streamed live courtesy of Courtroom View Network.
Anthony ‘Emory’ Valadez sued 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.
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 faced 40,000 lawsuits nationally in recent years over its baby powder and stopped making the powder worldwide with talc a mined mineral, switching instead to cornstarch in 2023 which researchers say is safe.
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 eliminated.
A U.S. bankruptcy court allowed the Alameda trial to proceed only because Valadez's short life expectancy. 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.
Over the course of the trial plaintiff attorneys have argued that J&J officials ignored warnings and evidence about the dangers of talc powder tainted with asbestos. They also argued the company wanted to maintain profits and their public image, describing the baby powder as a “flagship” of the company and a “cash cow” that represented a bond of public trust symbolized by a mother and baby.
Baby powder is a small portion of the company’s overall $94 billion operation including the operations of 400 subsidiary companies in 60 countries.
Defense attorneys argued that given the fact that millions of people use the baby powder and Valadez’s disease is the rarest of mesotheliomas (15 cases per year), it’s not logical that it was caused by baby powder.
The defense appeared to agree that small amounts of “trace” asbestos may have been found in the baby powder, but the amount was so low at .00002% in one report, it was comparable to the amount people breathe in the air, and not a hazard. Such a reading is well below the minimum amount set by regulatory agencies such as the U.S. Food & Drug Administration (FDA).
Plaintiff attorneys countered that no amount of asbestos is safe.
Defense attorneys also contended that Valadez’s young age, 24, made it highly unlikely he got mesothelioma from baby powder, which can take decades to develop illness. It is usually contracted mostly by men in their 60s and 70s.
The defense further argued the most likely cause of Valadez’s mesothelioma was “spontaneous,” bad cell replication, mutating cells that could not be killed off by white blood cells or kill themselves that kept dividing, producing more bad cells, in other words simply bad luck.
During closing remarks on Monday, July 10, Joseph Satterley, Valadez’s attorney, called such defense arguments merely an attempt to “distract” attention from the facts. He said his client faces a slow and painful death.
“What happened is that you have a 24-year-old kid (Valadez) that should have a 54-year life expectancy, with pain, suffering, fear and loss of life,” Satterley said. “You saw what he (Valadez) has gone through. It’s as simple as ABC. Asbestos breathed in causes cancer.”
Satterley said that Dr. William Longo, a Georgia-based microscope researcher and an important plaintiff expert witness, had found numerous asbestos fibers in the baby powder. Satterley accused J&J of negligence, failure to warn customers, product liability, concealment and violation of consumer expectation.
Satterley also said company officials had engaged in a deliberate campaign of lies.
“A reasonable person would not allow a carcinogen to be applied to babies,” he said.
Satterley cited plaintiff expert witness Dr. David Egilman, a Brown University professor of family medicine who testified that J&J officials told the FDA in the 1970s that if there was any question about the product they would remove it from the market.
Satterley said defense attorneys tried to pin Valadez’s disease on other exposures. His father worked at construction sites where asbestos could have been used and Valadez had attended school in an old building.
“This was just speculation,” Satterley said.
Study results were exhibited identifying trace amounts of asbestos in the powder including tremolite and chrysotile, two of several asbestos-related minerals.
In a J&J document from 1969, a doctor working with the company expressed “concern over the legal consequences on the inhalation of tremolite.”
Satterley accused the company of cherry picking, submitting reports to the FDA that showed no asbestos while hiding positive findings including asbestos found in an adult powder product called Shower to Shower.
“It (positive finding) was not given to the FDA,” Satterley said.
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.
Satterley said Alice Blount, a Rutgers University geologist and a plaintiff expert witness, found asbestos in the baby powder using the heavy liquid method in the 1990s.
“She (Blount) was telling J&J it was in their product,” Satterley said. “If they had taken it off the market in 1998, Emory (Valadez) wouldn’t have cancer.”
Satterley quoted Egilman as saying studies done on exposure to asbestos ruled out calling it a “spontaneous” or natural occurrence. Another plaintiff witness Dr. Ronald Dodson, a Texas researcher, identified minerals such as mica and titanium found at the site of Valadez’s mesothelioma in tissue samples---though no asbestos was found.
Plaintiff expert witnesses earlier testified that given the small size of the Valadez samples it was no surprise that asbestos fibers were not found.
“The FDA let J&J self-regulate,” Satterley said. “J&J said the FDA didn’t make us warn (customers), so we don’t have to warn. Our government failed. It didn’t control who was wrong.”
Satterley said there is no known safe level of asbestos exposure.
He exhibited a document from Vernon Seitz, research and development manager for Windsor Minerals, a subsidiary created by J&J that operated the company’s Vermont talc mine from the 1960s through the 1980s. Seitz said that success for the company depended on having the “best weapons and strategy.”
“They viewed it (protecting J&J) like a war,” Satterley said.
Satterley showed another J&J document in which officials said the claim could not be made that talc powder was pure.
“We can’t say the powder has always been asbestos free,” the letter stated.
Satterley said for its deceptions J&J needed to be punished.
“We’re not here to bankrupt J&J,” he said, “but to follow the law. This has been about J&J protecting their reputation so it could keep its piggy bank.”
Allison Brown, the attorney for J&J, said the plaintiffs had not come anywhere near the burden of proof that baby powder caused Valadez’s illness.
“The case is not supported by the evidence or facts,” she said. “Mr. Valadez’s is an enormously rare cancer that almost no one gets.”
She exhibited a photo of a baby powder bottle taken in the Valadez family home, a type of bottle she said the company had discontinued producing years before the photo was taken in 1998.
“Mrs. Camacho (Valadez’s mother) was unsure if they used (talc) baby powder or cornstarch,” Brown said.
Defense attorneys had questioned Camacho as to why she purchased baby powder in San Jose, Monterey and San Francisco, 100 miles away from the family home in Merced. Camacho testified that she routinely bought the powder in stores such as Target, Safeway and Save Mart during family visits or on trips.
Brown said Longo had failed to test any of the bottles of powder that Valadez used.
“Why?” Brown asked.
Brown said there were no physical markers of the disease found in tissue samples from Valadez, such as plural plaques, thickened tissue of the lungs indicating asbestos exposure.
“It leaves a mark in the body,” Brown said. “He (Valadez) had none.”
Brown said studies performed on shipyard and construction workers showed elevated risk for asbestos exposure and mesothelioma, but none had the kind of rare mesothelioma that Valadez had.
“Only a handful of people in the whole world get this,” Brown added.
Brown cited a finding by the International Agency for Research on Cancer (IARC) which said evidence that cosmetic talc is a carcinogen is lacking.
“We do not have evidence that inhaling cosmetic talc causes cancer,” Brown said.
In addition, a study of Italian talc miners with high exposures showed no instances of pericardial mesothelioma. Brown noted that while studies showed ship and construction workers at higher risk for mesothelioma, barbers who worked with cosmetic talc showed none.
“There is no epidemiological study in the world that concludes there is an increased risk of pericardial mesothelioma (from cosmetic talc),” Brown said. “This is a rare disease it’s as rare as it gets. Baby powder is a super commercial product.”
Brown said the plaintiff’s expert Dodson had never looked at pericardial mesothelioma in tissue samples and Egilman had possibly never seen an example. She said Valadez’s treating doctors never asked him about his baby powder use or advised him not to use it.
Brown said Egilman made money from companies by agreeing not to testify in court against them and Longo’s company over the years had made $33 million in litigation cases. Brown added that Longo called asbestos in baby powder an “urban legend” in 2002 and only changed his opinion about it later after being hired by plaintiff attorneys.
She added that Blount’s liquid separation method was subject to errors.
Brown indicated that J&J had made an exhaustive effort to ensure the safety of its powder.
“We (J&J) acted above and beyond what a responsible company is supposed to do,” she said, “with testing and certifications of analysis. We sent to outside labs for testing. Why would we do this, spend this money if we were trying to hide something? It doesn’t make sense. It isn’t true.”
Michael Brown, also a defense attorney, followed by telling the jury that repeated tests of Valadez’s tissues had not revealed a single asbestos fiber. He said particles that were found such as mica or silica could be found in anyone’s body.
“Where’s the asbestos?” Brown asked.
Near the end of Monday’s session when plaintiff attorneys were allowed a rebuttal to the remarks of the defense they played a portion of Valadez’s testimony in which he said his hope was that his lawsuit would prevent other people from having to go through what he had endured.
“Nobody should have to go through that,” Valadez said.