A small group of highly paid experts, one of whom recently testified his firm has made $30 million offering mostly pro-plaintiff testimony, are the key ingredient for more than 10,000 lawsuits claiming talcum powder is laced with deadly asbestos, forming the tip of an inverted pyramid upon which the rest of the cases depend.
Without these experts, as a plaintiff in Philadelphia learned earlier this month, the lawsuits tend to collapse.
On Feb. 7 Philadelphia Court of Common Pleas Judge Kenneth Powell dismissed a lawsuit by the late Sally Brandt against Colgate-Palmolive after he excluded the opinions of three experts who contend Colgate’s Cashmere Bouquet talcum powder contains breathable asbestos fibers.
Without those experts – including a New York scientist who once entered the witness protection program after allegedly getting involved in money laundering for the mob – plaintiffs can’t make the necessary connection between talcum powder and their disease.
A trial in California shows what happens when judges let those experts in. Now in its seventh week, Leavitt v. Johnson & Johnson has featured some of the same witnesses and evidence other courts have rejected, including tests on talc from decades-old bottles that lawyers purchased on eBay.
Plaintiff Terry Leavitt’s experts have testified not only that Johnson & Johnson’s Baby Powder contains asbestos, but that it is the only plausible cause of her mesothelioma, despite the fact Leavitt grew up near at least two asbestos factories and like everyone else has been exposed to ambient asbestos throughout her life.
Johnson & Johnson’s lawyers have challenged every element of Leavitt’s case and adamantly deny that Johnson’s Baby Powder contains asbestos. But given the decades-long incubation period for developing cancer, hazy memories and conflicting documents from the 1970s and 1980s, talc cases are tough to defend.
If judges allow in evidence that talcum powder at some point contained asbestos, plaintiffs can then put on experts who say that same asbestos is the cause of their illness. Since there is no known safe level of exposure to asbestos, plaintiff experts are free to say any exposure at all can cause disease, even though numerous studies have shown people breathe in a significant amount of asbestos every day and don’t contract cancer from it.
Dozens of epidemiological studies reveal no higher risk of asbestos-related cancers among talc miners and a recent study of mesothelioma rates in women undermined the theory that breathing a small amount of asbestos can cause cancer.
Judges are remarkably inconsistent on whether to allow these experts to offer their opinions to jurors, however. When they do testify, jurors can hand down spectacular verdicts. Last year, a St. Louis jury awarded $4.7 billion to 22 women who blamed their ovarian cancer on Johnson’s Baby Powder, and a jury in J&J’s home state of New Jersey awarded $117 million to a plaintiff in December.
In Leavitt v. J&J, which is being televised on Courtroom View Network, Alameda County Judge Brad Seligman has allowed Dr. William Longo to testify about tests Longo performed on talc samples provided by plaintiff lawyers, despite J&J’s complaints they were decades old, unsealed and of unknown provenance.
Even bottles plaintiff lawyers obtained from a J&J museum were donated by employees and have unknown histories, the company says. Los Angeles Judge John Kralik rejected the same samples as unreliable in July, saying “given the low levels of asbestos to which the plaintiffs experts are referring, the samples must have a chain of custody that prevents contamination.”
Judge Manuel Mendez of NYCAL, the specialized New York City court for asbestos lawsuits, refused to dismiss talc cases against J&J and Colgate-Palmolive and has docketed several for trial, even though in 2013 Judge Martin Shulman, also of NYCAL, rejected the opinion of a plaintiff witness, Dr. James Millette, because he altered his testing methods in a way that might result in higher asbestos fiber counts.
Judge Shulman criticized Millette, a vice chair of the industrial standard-setting organization ASTM, for “intentional disregard of criteria otherwise accepted as reliable in this expert witness’s own scholarly writings as well as in the scientific community.”
Even in notoriously plaintiff-friendly Baltimore, a judge in 2015 rejected testing on questionable talc samples including a bottle the plaintiff claimed to have discovered in her basement. The judge cited “several sources of potential contamination” of the half-full bottle over the two decades it sat in a cardboard box with other items.
Critical to the plaintiff case are often-subtle differences between fibers that appear to be asbestos but may actually be harmless minerals with the same chemical makeup. Government health and safety agencies don’t have consistent guidelines for what constitutes asbestos but experts generally consider asbestos fibers to be 0.5 micrometers or less in diameter – a human hair is typically 50 microns – with a length-to-width ratio of 10:1 or greater.
Experts place talc samples on grids and examine them with electron microscopes to identify suspect particles, with most guidelines requiring a “population” of numerous asbestos particles to confirm contamination.
Talcum powder is particularly difficult to examine because talc flakes obscure other elements, and on their sides the flakes can resemble asbestos. Talc also is mined from deposits that can contain tremolite, chrysotile and other minerals that may or may not be asbestos depending upon their physical shape.
Plaintiff experts including Longo and Fitzgerald have been criticized by judges for using methods that cannot differentiate between asbestiform and non-asbestiform minerals, and skipping the crosscheck of looking at samples from different angles to rule out particles that are thin in only one dimension.
These experts are in high demand as lawyers press talc cases, which offer an answer to the conundrum of how female plaintiffs could have come down with mesothelioma, a disease generally associated with industrial-level asbestos exposure.
In testimony televised on Courtroom View Network, Longo said his firm has earned $30 million from asbestos litigation, primarily from plaintiff lawyers, over the past 30 years and he has averaged a deposition a week for the past five years. From zero a few years ago, he testified, 70% of his business now involves talc. He’s been designated as a witness in thousands of lawsuits and said plaintiff lawyers “don’t even call me, just list my name.”
In the Leavitt case, defense lawyers picked at Longo’s opinion that Johnson’s Baby Powder contains asbestos and caused Leavitt’s illness. One of his tests found richterite in an old baby powder sample, for example. The mineral isn’t known to be present in talc mines but is common in household insulation.
Other tests found significantly higher numbers of fibers as reports were revised over several months, errors Longo attributed to “typos.” His results also clashed with those of Lee Poye, another frequent plaintiff expert, who found no asbestos in the same samples Longo tested. Poye and Longo say they used different methods.
Another witness in the Leavitt case, Dr. David Egilman, served as the editor of a journal that published a 2014 article by Millette, Fitzgerald and Ronald Gordon that lawyers frequently cite as the foundation for opinions talc contains asbestos.
They describe the article as peer-reviewed, but the research was paid for by plaintiff lawyers and in a 2018 deposition Egilman said it was reviewed by “two or three” people whose names and qualifications he couldn’t remember.
In an emailed comment, Egilman said he wasn’t testifying for plaintiffs in talc cases when the article was published in the journal he edited, and “it is not surprising that I could not remember the names of peer reviewers from work done 4 years before I was asked to do so.” In his deposition, he said he couldn’t reveal the names of the peer reviewers even if he did remember them.
Egilman, a clinical professor of family medicine at Brown University, said he was first retained in a talc case two years ago and has billed $1 million in the litigation since. In his emailed comment, Egliman said it was wrong to assume “money, not a commitment to public health, is behind what I do.” Egilman has accused scientific colleagues of bias for accepting research funding from sources he considers suspect, however.
Gordon, a researcher at Mount Sinai, once admitted to participation in a drug-related money-laundering scheme, according to a federal judge’s opinion disqualifying him from a talc case. Gordon says the judge’s description of events is misleading.
Despite defense objections about questionable samples and potentially mistaken identification of asbestos particles in talcum powder, some judges allow in the opinions of these experts, perhaps to avoid being overturned on appeal.
Jurors in the Leavitt case are allowed to ask questions directly of the experts and those questions reveal their own confusion over what is science and what is not. After Egilman finished, they asked the doctor why, if baby powder has been in common use for decades, there hasn’t been an increase in female mesothelioma cases. Egilman demurred, finally saying, “I really don’t know why.” It’s unlikely the jurors will hear an answer from any experts before the trial is over.