Trial began Nov. 9 in Alameda County Superior Court in which a man is claiming that asbestos in Johnson & Johnson baby powder caused him to develop mesothelioma, a rare and deadly form of cancer.
Attorneys for J&J contend the baby powder was harmless and that plaintiff Marvin Eagles contracted the illness after exposure to asbestos from an Oakland shipyard.
The trial was supposed to resume on Monday, but was delayed for a day after a jury member reported in sick. The proceeding is expected to take a month and is being streamed live, courtesy of Courtroom View Network.
In July an Alameda County jury awarded a plaintiff with mesothelioma $18.8 million in damages in an earlier trial against J&J.
Pericardial, pleural and peritoneal mesothelioma are three variants of the disease, which is very rare afflicting about 3,000 sufferers per year. The disease is almost always fatal.
Johnson & Johnson 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.
During opening remarks, Joseph Satterley, Eagles’ attorney with the Oakland-based law firm of Kazan, McClain, Satterley and Greenwood, told a jury that his client’s disease is terminal.
“The baby powder has needle-like (asbestos) fibers that penetrate cells and cause cancer,” Satterley said. “Johnson & Johnson (officials) knew this.”
Satterley accused top company officials like CEO Alex Gorsky and President David Clare of lying to media about the dangers of the product, falsely portraying it as safe. He said talc starts as a rock dug out of the ground by miners and is safe until it is ground up to be used as a cosmetic powder. Then it allegedly becomes dangerous.
He said talc powder for the product was acquired from Italian mines in the 1960s. Johnson & Johnson bought its own mines in Vermont during the 1970s, selling these in 1989 to a company called Cypress. In the early 2000s, talc was mined in China.
“Johnson & Johnson failed to warn customers,” Satterley said. “They were negligent. We have product liability. A product is liable if it’s dangerous and hurts people.”
Satterley said bottles were tested by a number of labs, allegedly including Johnson & Johnson, in which asbestos in the powder had been found. He accused the company of failing to live up to its own safety standards including a promise in 1974 that if there was any safety question, the powder would be removed from the market.
Satterley indicated he would seek damages for his client for thousands of dollars in medical bills, physical pain, mental suffering, loss of enjoyment of life, disfigurement, grief, anxiety, emotional distress and others.
Eagles, 81, was diagnosed with the disease in 2022. Satterley said that although a doctor removed a good share of the cancer, it will reoccur. He said his client had been in pain every day of 2023.
“This was a preventable cancer,” Satterley said.
Attorney Kim Bueno, with the law firm of Butler Snow, of Austin, Texas, representing Johnson & Johnson, said there is a whole lot more to the story than Satterley related.
“No doctor outside this courtroom has ever linked cancer to talc powder,” she said.
Bueno said Satterley had not mentioned the real asbestos exposures Eagles had experienced and no one had told him baby powder was responsible.
“These allegations are not true,” she said. “We do not fault Mr. and Mrs. Eagles for wanting answers, it’s completely natural to want to know why and to find someone to blame. But the finger is being pointed in the wrong direction.”
Bueno said the stores where Eagles claimed he had purchased the baby powder he used was confused.
Satterley had said he used the powder on himself five days a week over a long period of years.
Bueno said this ignored the fact that Eagles had worked in a shipyard in Oakland, as had his father, who could have brought asbestos home on his clothing and spread it around.
Asbestos includes the minerals anthophyllite, tremolite, actinolite, amosite, crocidolite and chrysotile.
Bueno indicated that the amosite found in Eagles’ tissue samples was common to shipyard work in a dry dock.
She said testing by the U.S. Food & Drug Administration in 1986 concluded there was no basis for determining baby powder to be a health hazard and there was no need for a warning label.
A 1994 FDA symposium she said concluded that baby powder was among the safest of all products.
In 2019 a trace amount of chrysotile was found in samples of the powder. Bueno said Johnson & Johnson then voluntary recalled the tainted powder, even though not required by the FDA. She added that J&J had switched to using corn starch instead of talc powder not for safety reasons, but because of declining talc sales.
Bueno said testing of miners and millers in Italy who dug the talc powder revealed no increased risk of cancer. That was also allegedly true of barbers who commonly use talc powder.
“We stand with the science, the facts and the truth,” she said.
Alameda County Superior Court Judge Jo-Lynne Lee is presiding over the trial in Oakland.