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J&J corporate witness and plaintiff attorney spar over asbestos powder samples at N.J. trial

By John Sammon | Mar 5, 2019

NEW BRUNSWICK, N.J. (Legal Newsline) – Johnson & Johnson’s top corporate spokesman John Hopkins told a jury on Monday the company had spiked samples of baby powder with asbestos to see which asbestos detection testing method would work best.

Hopkins denied asbestos had been found in J&J baby powder.

However Mark Linder, the attorney for plaintiff Ricardo Rimondi, presented a document from a researcher (Dr. Seymour Lewin) indicating that likely chrysotile asbestos fibers had been found in a sampling of powder.

“Did he (Lewin) find asbestos in the (J&J baby powder) products?” Linder asked Hopkins.

“His initial result indicated he did but...”

“Sir,” Linder interrupted, “it’s kind of a 'yes' or 'no' question.”

“Initially yes, but a follow-up decided there was no asbestos in the baby powder,” Hopkins said.

Hopkins said the follow-up was an additional evaluation by the Food and Drug Administration (FDA).

“So it wasn’t Lewin?” Linder asked. “Did Lewin change his results?”

“It was never confirmed that was the case,” Hopkins said.

The trial in the New Jersey Superior Court for Middlesex County is being streamed live courtesy of Courtroom View Network.

The trial is taking place a few miles from Johnson & Johnson’s corporate headquarters and is the first talc-mesothelioma trial for the Lanier Law Firm of Houston. The firm is representing Rimondi and won a $4.69 billion verdict against J&J last year in a trial in Missouri.

Thousands of cases against Johnson & Johnson alleging asbestos exposure are pending in courts. In New Jersey, plaintiff verdicts have been high. There have been verdicts of $117 million and $37 million.

In neighboring Pennsylvania, a Philadelphia judge recently dismissed a plaintiff's lawsuit after refusing to let her expert testify. Without experts to testify to a link between talc and asbestos-related cancers, plaintiffs' cases fall apart.

Dr. William Longo will be testifying for the plaintiff in the New Jersey case. He recently admitted to making $30 million through the years offering mostly pro-plaintiff testimony.

Most asbestos lawsuits brought by women plaintiffs have accused the baby powder maker of causing ovarian cancer. However, trials over the far rarer mesothelioma have increased in recent months.

Rimondi is suing Johnson & Johnson claiming that asbestos in its baby powder caused him to develop mesothelioma, a deadly cancer of the linings of the lungs. 

About 3,000 diagnoses of Mesothelioma, a far rarer disease, are made in the U.S. each year.

Hopkins worked in the research and development arm of Johnson & Johnson from 1976 until 2000 and today runs a toxics consultancy business in England.

Linder presented a document showing that a powder sample had been found to contain tremolite, a mineral that can be asbestos or not.

“Yes tremolite, not asbestos,” Hopkins said.

Linder presented another document in which a University of Minnesota researcher commissioned by the McCrone Group lab in Illinois, a toxics testing facility, had found a mineral likely to be chrysotile (asbestos) in a J&J adult powder product called Shower to Shower.

“They (J&J) used the same talc source for Shower to Shower as they did for the baby powder, correct?” Linder asked.

“Yes,” Hopkins answered.

“They were able to find low levels of chrysotile?”

“That’s what he (researcher) wrote, yes,” Hopkins said.

A citizen’s petition in the mid-1980’s requested the FDA require a label on bottles of J&J baby powder warning about possible asbestos contamination. FDA officials decided such action was not warranted.

The FDA response said the quality of baby powder had improved significantly and the risk from cosmetic talc powder was lower than background levels of asbestos exposure which includes breathing asbestos fibers in ambient air, and thus was not a threat.

“We find no basis it (baby powder) is a health hazard and no need to require a warning label,” the FDA response read.

Morton Dubin, the attorney for Johnson & Johnson asked Hopkins, “Did the FDA find any asbestos in talc?” 

“They did not,” Hopkins said.

At issue in the trial has been whether testing methods for spotting asbestos fibers particularly during the 1970s and 80s were effective. Critics of Johnson & Johnson said the firm should have used a new technique developed in the 1970’s called “concentration,” a pre-screening method in which heavy liquid is used to separate talc from heavier materials before scrutiny under a microscope.

J&J officials declined to use the method, saying it wasn’t effective.

Hopkins said the company instead relied primarily on the polarized light microscope (PLM) and diffraction testing. He said the company spiked samples of baby powder with asbestos to test the effectiveness of the various methods for analyzing talc.

“Was it used as part of research to determine if the methods worked or not?” Dubin asked.

“Yes,” Hopkins said.

“What does spiking a sample mean?” Dubin asked.

“If you’re trying to find something that maybe is not there — low levels, you deliberately add 1% or 2%(asbestos). That’s spiking,” Hopkins said.

Hopkins compared it to adding red dye to a sample of water to spot the dye.

He added the heavy liquid separation method (concentration) was considered inaccurate and unsuitable including an opinion given by F.D. Pooley, a researcher in the U.K.

The FDA also considered adopting the concentration technique and similarly concluded it wasn’t effective.

Problems in separating talc from asbestos particles due to similarities in the densities of materials were given as reasons for the rejection of the concentration technique.

Dubin asked Hopkins about Johnson & Johnson company policy.   

“Did Johnson & Johnson view business success as being incompatible with being a responsible company?” he asked.

“No,” Hopkins said. “You can have good corporate responsibility and still be a successful business.”            

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Organizations in this Story

Johnson & Johnson The Lanier Law Firm PLLC

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