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New Jersey talc-meso trial winds down, verdict expected today

By John Sammon | Mar 27, 2019

NEW BRUNSWICK, N.J. (Legal Newsline) – During closing arguments on Tuesday, attorneys for Johnson & Johnson seemed to stick to their strategy suggesting that plaintiff Ricardo Rimondi’s mesothelioma came as a result of his once living near a factory in Lima, Peru, that dealt with asbestos-laden cement and not from J&J baby powder.

The defendant maintained the plaintiff’s attorneys and their expert witnesses played loose with scientific fact, calling everything they see under a microscope asbestos.

However, Rimondi’s attorneys contended Johnson & Johnson officials thought only of their profits and ran a disinformation campaign while ignoring the dangers to the public from their baby powder.      

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

Rimondi is suing Johnson & Johnson over allegations its baby powder caused him to develop mesothelioma, a deadly and incurable cancer of the linings of the lungs. A native of Peru and a father, Romindi, 58, was diagnosed with the disease in 2016.

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 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 this month hit the company with a $29.4 million verdict in another mesothelioma case. The potential liability has forced J&J's talc supplier Imerys Talc America into bankruptcy.

During closing arguments, Morton Dubin of Orrick, Herrington & Sutcliffe, the attorney for Johnson & Johnson, said the plaintiff’s contention that asbestos-tainted baby powder caused Rimondi’s mesothelioma was a falsehood.

“Mr. Rimondi did not come up with the idea that baby powder caused his mesothelioma,” Dubin said. “His doctors did not come up with it. The only people who ever said it were either paid litigation witnesses or the plaintiff lawyers themselves.”

One of those witnesses, Dr. William Longo has made $30 million in his career offering mostly pro-plaintiff testimony, Legal Newsline previously reported,

Dubin said everyone had sympathy for Rimondi but asked the jury to set sympathy aside and focus on the evidence.

“The plaintiff has the burden of proof,” he said. “We believe they (plaintiffs’ attorneys) have not provided such evidence. The only allegation is that asbestos caused the disease. If you find not, that is the end of this inquiry.”

Dubin said the plaintiff’s case was based on bad science.

“It’s based on oversimplification and misdirection of documents,” he said.

Dubin in particular took aim at Longo, a researcher with the MAS lab in Georgia, and a star witness for the plaintiff. He said Longo had contradicted himself by saying previously the McCrone Group lab in Illinois, which had produced findings that concluded there is no asbestos in the baby powder, was one of the best labs in the country.

“They’re saying McCrone is going to lie to keep asbestos in baby powder and that they’re fundamentally monsters,” Dubin said.

Dubin alleged Longo lied about talc samples tested or hiding samples contradicting his opinions.

“They will call things asbestos whether they’re actually asbestos or not,” he said.

Critics of the company said J&J failed to make use of “concentration,” a pre-screening method of separating talc from heavier particles developed in the 1970s allegedly afraid it was too sensitive and would discover asbestos in the baby powder.

However, Dubin said the method had drawbacks - it could not detect chrysotile, an asbestos-related mineral.

He added that the plaintiff’s attorneys had used documents to back their opinions while ignoring others that would contradict them.

“They just wave around documents hoping you’ll see the asbestos and ignore the rest,” he said.

Defendant attorney Allison Brown with the law firm of Weil, Gotshal & Manges of New York said a witness for the plaintiff, Dr. Jacqueline Moline, “rubber-stamped” the lawsuit testifying there was asbestos in the baby powder.   

“She didn’t know he (Rimondi) lived 1.5 miles from a cement plant (run by the Eternit Co.) in Lima, Peru,” Brown said.

Brown said Moline contracted her earlier statements that miners of talc powder for use in the Johnson & Johnson product had the highest exposure to the mineral, instead saying consumers of cosmetic talc powder did. During the trial the defense had presented documents maintaining that no cases of mesothelioma had been found among miner and millers of talc in Italy and Vermont. 

“Johnson & Johnson did not have asbestos in its baby powder and it did not cause Mr. Rimondi’s disease,” Brown said.

Rimondi’s attorney, Monica Cooper with the Lanier Law Firm of New York, said there is no safe level of asbestos exposure. She said there was fibrous tremolite (asbestos related mineral) found in the baby powder and that Johnson & Johnson was working on a defense strategy as far back as 1969.

A Colorado School of Mines report made in 1971 Cooper said showed that tremolite and actinolite had also been found in talc samples from Vermont.

She indicated that even small amounts of asbestos known as trace amounts can be dangerous.

“They (defendant) want to act like trace is OK,” Cooper said. “It (bottle) can have 165 million fibers.”

Cooper said Johnson & Johnson adopted what was called the “clean mine approach” in defending the purity of its talc powder, but by the 1970s expressed doubt in a letter about the defendant posture and concern that litigation could result from asbestos exposure.

“At this point, Johnson & Johnson had a choice,” Cooper said. “They could keep going with the clean mine approach or make change. Corn starch was another option. It does not contain fibers.”

Johnson & Johnson introduced corn starch as an alternative baby powder but never abandoned its more profitable talc powder product.

Cooper compared the concentration technique for pre-screening talc powder before looking at particles under a microscope as a way of finding a needle in a haystack.

“You can take away the hay and see the needles,” she said. “If you want to find asbestos you use the most-sensitive test, that’s what concentration allows.”

Cooper noted the Food and Drug Administration did not regulate talc powder but depended on talc powder companies to regulate themselves. She exhibited documents that she said demonstrated that Johnson & Johnson officials were concerned about possible FDA regulation of talc.

Cooper said test results from the McCrone lab in 1975 showed amphibole minerals at low levels and bundles.

“There’s no question that’s asbestiform,” she said.

Cooper also took issue with the defense contention that a cement factory in Lima, Peru caused Rimondi’s illness.

“This entire trial they (defendant) have been trying to make it seem that it was mysterious companies in foreign countries,” she said. “Where is the evidence how much asbestos they (Eternit Co.) were using? How much was in the air where Mr. Rimondi was? Was it blowing away or toward him (Rimondi)? They haven't shown anything from Peru.”

Cooper called Rimondi’s exposure to asbestos from Johnson & Johnson baby powder “substantial.”

She exhibited a photo of Rimondi and his family and talked about the loss to all of them from his fatal disease.

“This (disease) was completely preventable,” Cooper said.

The jury verdict is to be announced today.

Superior Court Judge Ana Viscomi is presiding.

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