NEW BRUNSWICK, N.J. (Legal Newsline) – Attorneys defending Johnson & Johnson in a mesothelioma trial on Tuesday attempted to use the plaintiff's star witnesses' own past words against him, while a mineralogist witness for J&J conceded his employer has made millions from testifying in asbestos-related trials.
“Are plaintiff experts confusing common amphibole minerals with asbestos?” asked Johnson & Johnson attorney Morton Dubin of Orrick, Herrington & Sutcliffe to mineralogist Matthew Sanchez.
“Yes, they are,” responded Sanchez.
“Is this good science?” Dubin asked.
“No, misidentifying is not good science,” Sanchez 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 plaintiff Ricardo 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 injuries from asbestos exposure are pending in courts. In New Jersey, plaintiff verdicts have been high. There have been verdicts of $117 million and $37 million.
Also, a California jury last week hit the company with a $29.4 million verdict in another mesothelioma case. The potential liability has forced talc company Imerys into bankruptcy.
Rimondi and his wife, Pilar, are suing Johnson & Johnson claiming that asbestos in its baby powder caused him to develop mesothelioma, a rare and deadly cancer of the linings of the lungs. Almost always fatal within a few years of diagnosis, doctors had warned Rimondi’s family he would likely not survive past this year.
Sanchez, a mineralogist and geologist for the R.J. Lee Group, a Pennsylvania-based materials lab and consulting firm, has frequently testified on behalf of Johnson & Johnson in asbestos trials.
Dubin sought to undermine the testimony of leading expert witnesses for the plaintiff, including Dr. William Longo, a Georgia-based microscope researcher; and Dr. Steven Compton, a researcher for MVA Scientific Consultants, also of Georgia.
Longo had testified there was asbestos in Johnson & Johnson baby powder.
Dubin contended Longo had never tested cosmetic talc powder used in the J&J product when he wasn’t being paid to by plaintiff lawyers.
“I’ve been testing talc for asbestos since 2007 and I didn’t start testifying in trials until three or four years ago,” Sanchez said.
“You looked at Johnson & Johnson talc before being asked as a witness?” Dubin asked.
“True,” Sanchez said.
“Were your conclusions then the same as they are today as an expert witness for Johnson & Johnson?” Dubin asked.
“Yeah,” Sanchez answered. “Since I have been testing for their modern production stuff, we have not found asbestos in talc. When I was approached by Johnson & Johnson (to testify), I agreed because I need to defend those (test) results, the correct results. ”
Sanchez said his company was billing $500 per hour for his courtroom testimony. The credibility of expert witnesses in these trials are paramount, as liability ultimately depends on whether the jury believes there is asbestos in talc.
When judges don't allow the plaintiffs lawyers to bring in their experts, their cases fall apart, as evidenced in a February decision in Philadelphia.
Longo, one of the plaintiff's experts in this case, has testified that he has made around $30 million with mostly pro-plaintiff testimony.
And lawyers for the plaintiffs have asked a J&J expert how much he was making for testimony - $825 an hour.
Dubin asked Sanchez if a substantial part of his testimony was to respond to and refute Longo’s work of findings of asbestos.
“The past year-and-a-half, yes,” Sanchez agreed.
During qualification as an expert witness for the defendant, plaintiff's attorney Mark Linder of the Lanier Law Firm asked Sanchez if he currently spent a majority of his time in court.
“That’s accurate, yes,” Sanchez said.
“When you started, you billed $250 per hour.” Linder said.
“The first time I testified, yes,” Sanchez said.
“You agree with me you’re not a medical doctor?”
Sanchez said he had a Ph.D. in geology.
“You’re not a hygienist?”
“You don’t do risk assessment?”
“You’re not an epidemiologist?”
An issue of debate in numerous asbestos trials has been cleavage fragments, crushed minerals of rocks that plaintiff attorneys have contended can be toxic while defendant attorneys maintained they are separate from asbestiform minerals and not asbestos.
Dubin exhibited for the jury an earlier statement made by Longo that you can’t take a non-asbestos rock, break it up and call it asbestos.
“Do you agree?” he asked.
“Yes,” Sanchez said.
Dubin exhibited a similar statement made by Compton. Sanchez indicated such thinking was a fallacy.
“It’s basic logic,” he said. “You don’t turn A into B by crushing it.”
Dubin also suggested Longo, in addition to misidentifying asbestos bundles, compounded the error by multiplying it, saying there were 10,000 particles found in a sampling bottle of J&J powder.
Sanchez called it a “three order scale” error.
“You misidentify and then assert there are 10,000 particles (asbestos) in a bottle when you have no data to support it,” he said. “He (Longo) is calling things (asbestos) bundles that are not bundles. There are no features of asbestos. These particles are not asbestiform.”
An oft-repeated criticism of Johnson & Johnson is that the company failed to use a pre-screening method of testing talc powder using heavy liquid separation called “concentration” developed in the 1970s. The process spins talc powder in a tube, causing the talc to float to the top and heavier particles to the bottom.
Plaintiffs’ attorneys have contended J&J officials avoided the technology, afraid it would reveal asbestos in their baby powder. However, Sanchez said the concentration process was flawed.
“You lose the ability to see chrysotile,” he said. “It (separation) is not a very effective technique.”
Sanchez said testing conducted by researcher Alice Blount was only able to recover 14 percent of amphibole minerals using the process.
“If it isn’t a very small amount (asbestos), there’s a chance you could miss it,” Sanchez said.
Under cross-examination, Linder told Sanchez he was calling everything cleavage fragments and not asbestos.
“There’s no asbestos in the talc,” Sanchez maintained.
“You (R.J. Lee) have billed over a million in litigation over the past couple years?” Linder asked.
Sanchez estimated it at $1.5 million.
“R.J. Lee is looking to make a pretty substantial profit,” Linder said.
“I’m not doing it for profit,” Sanchez said. “I’m defending the analysis I conducted on behalf of Johnson & Johnson.”
“I’m talking about your employer, R.J. Lee,” Linder said.
“R.J. Lee is not testifying, I am,” Sanchez said.
Linder exhibited a document that read “Studies that show cleavage fragments are benign are questioned by many health experts.”
He also exhibited a 1973 memo from Johnson & Johnson that said the company should no longer rely on the “clean mine approach” as a protective device given the asbestos controversy and that fiber type minerals could be found in the talc powder.
“You are aware there have been asbestos fibers that were detected in these talc mines over the years?” Linder asked.
“In certain areas, yes,” Sanchez answered.