NEW BRUNSWICK, N.J. (Legal Newsline) – A researcher told a New Jersey jury on Tuesday the testing methods employed by Johnson & Johnson to detect possible asbestos in talc-based baby powder were not sensitive enough to find lower amounts, referring to it as similar to looking for a needle in a haystack.
That was the opinion of Dr. William Longo, of the Georgia-based MAS lab. Longo is one in a handful of experts used by plaintiffs lawyers to testify there is asbestos in the talc used by Johnson & Johnson in its talcum powder products.
He has testified that he has made $30 million offering mostly pro-plaintiff testimony through the years.
“If it’s (asbestos) less than 0.1 percent, XRD (X-ray diffraction) would not be able to see it,” Longo said. XRD was one of the methods employed by J&J to test for possible asbestos contamination.
Monica Cooper of Lanier Law Firm, the attorney for plaintiff Ricardo Rimondi, asked Longo what would happen in such a case if the smaller amount of asbestos slipped under the microscope detection limit.
“They (testing lab) would call it a pass, say there’s nothing there,” Longo said.
Coverage of 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.
Rimondi is suing Johnson & Johnson alleging that the baby powder that he used caused him to develop mesothelioma, a deadly cancer of the lungs. Mesothelioma is a rare disease with 3,000 cases reported each year in the U.S. Untreatable and incurable, death usually results in a few years after diagnosis but can take 30 years from first exposure to the onset of illness called a “latency period.”
Longo, a materials scientist and electron microscope researcher specializing in the analysis of asbestos-containing materials, appeared as an expert witness for the plaintiff.
Cooper’s questioning sought to display that Johnson & Johnson officials had declined to use a more sensitive testing technique developed in the 1970s called concentration - the use of heavy liquid spinning in a tube that causes talc to separate from heavier particles.
Critics of the company have faulted the decision not to use the concentration method, saying it would have provided Johnson & Johnson with better detection of smaller amounts of asbestos called “trace amounts,” those registering under 0.1 percent.
J&J officials at the time said they didn’t believe concentration was effective and instead opted to rely on high-powered microscopes and the X-ray diffraction technique. The Food and Drug Administration (FDA) also rejected use of the method.
“The FDA does not regulate cosmetic talc,” Longo explained. “It’s up to whoever is making the cosmetic talc to police themselves.”
He added the FDA often does not do its own testing, but puts out a contract to test powder and awards it to the lowest bidder.
Longo said if a concentration of asbestos is below the level of sensitivity for the testing method employed, the chances it will be discovered are reduced.
He also said microscopes alone do not change greatly the effectiveness of testing procedures.
“It’s all about how you prepare the sample,” Longo said.
J&J primarily used the X-ray technique and polarized light microscope (PLM) to determine if asbestos was in talc, called the J4 Method.
“Was it reliable?” Cooper asked.
“Yes and no,” Longo responded. “For industrial talc where the concentrations (asbestos) are higher, it will work. For cosmetic talc no, I don’t believe this is a reliable method.”
Longo said a TEM microscope will not detect smaller amounts of asbestos without proper preparation of a powder sample.
He compared it to pinching an amount of hay to search for a needle in a haystack. Without being able to separate the hay, the needle won’t be found. The concentration method he indicated could accomplish this.
“The concentration method does the same thing,” he said. “The talc is lighter (floats) and you filter it, you can see what’s there (remaining heavier particles). It increases your analytical sensitivity.”
“Did Johnson & Johnson adopt concentration?” Cooper asked.
“No,” Longo said.
“Did they know about it?”
Cooper said a Colorado School of Mines report indicated that for lower levels of asbestos, greater amounts of material would need to be tested under the traditional, non-concentration methods.
In addition, a researcher, Dr. Alice Blount, had used the heavy liquid separation method to detect asbestos in talc samples in the early 1970s.
Longo said the concentration method was good for detecting tremolite fibers, which can be asbestos or not, and another potential asbestos mineral, anthophyllite, but not as good for chrysotile.
“Is the concentration method good?” Cooper asked.
“Yes, it’s absolutely necessary,” Longo said.
Longo said of 36 powder samples taken from talc mines in Vermont, 32 tested positive for asbestos and 42% from samples taken from mines in Italy tested positive.
Morton Dubin of Orrick, Herrington & Sutcliffe, the attorney for Johnson & Johnson, cross-examined Longo in the afternoon.
"You were given a number of bottles of baby powder from three different law firms, one of which was Lanier," he said. "They asked you to look for amphoboles?"
"That's possible," Longo said.
Dubin told Longo you cannot, as if by magic, take a non-asbestos rock, break it up into a cleavage fragment and make it asbestos.
"That's correct," Longo said.
"You agree that cleavage fragments can resemble asbestos fibers?"
"That's right," Longo said.
Dubin raised the possibility fibers could be counted as asbestos because of their dimension and size according to counting rules in testing even if they were not in fact asbestos.
"Of the (testing) bottles you were given from plaintiffs, 31 were not sealed?" he asked.
"Not sealed, correct," Longo said.