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Tuesday, September 17, 2019

In latest talc trial, J&J accused of causing woman’s mesothelioma; Defense maintains asbestos not in baby powder


By John Sammon | Apr 24, 2019

ALAMEDA (Legal Newsline) – Trial opened on April 22 in which a woman is claiming her use of Johnson & Johnson baby powder caused her to develop mesothelioma, pitting plaintiff attorneys accusing the company of negligence against defense attorneys who characterize the contraction of illness as a natural and unexplainable event.

The trial is being streamed live courtesy of Courtroom View Network.

During opening remarks, attorney Joseph Satterley with the Oakland-based law firm Kazan, McClain, Satterley & Greenwood, told the jury that plaintiff Patricia Schmitz's disease is incurable and fatal.

“She is suffering a horrible disease,” Satterley said. “It is likely she will not live past this summer.”

Mesothelioma is a rare form of cancer of the linings of the lungs. The case is one of hundreds pending in which Johnson & Johnson stands accused of selling baby powder tainted with asbestos. Most of the suits filed by women have contended the baby powder caused them to develop ovarian cancer, though numbers of mesothelioma cases have increased in recent months.

Satterley said Schmitz was exposed to asbestos from using the J&J baby powder and that the evidence would show company officials made bad decisions that hurt people.

“A substantial number of the bottles (J&J baby powder) have asbestos in them,” Satterley said. “You will hear the names of people who we believe were negligent."

One such name was Bill Ashton, a Johnson & Johnson official (1970s) in charge of talc powder products who Satterley said along with other J&J corporate officers knew there was fibrous tremolite, an asbestos related mineral, in the baby powder. He said Johnson & Johnson officials ignored a promise that if there was ever any doubt raised about the product they would take it off the market.

Satterley argued that Johnson & Johnson managers submitted reports on the purity of the baby powder product to the Food and Drug Administration (FDA) that they knew were wrong.

He added that Johnson & Johnson had tried to suppress asbestos in its baby powder.

“Why would they suppress it if it wasn’t there?” Satterley asked.

Satterley said Schmitz had suffered intensely from the mesothelioma and asked the jury for compensation damages.

“You’ll have to evaluate her pain and suffering and loss of the enjoyment of life,” he told the jury.

Alexander Calfo, attorney for Johnson & Johnson with the law firm of King & Spalding of Atlanta, said Johnson & Johnson’s baby powder did not contain asbestos. He indicated plaintiff attorneys had cherry-picked a few documents out of millions to bolster their case.

“You deserve to know the whole truth,” Calfo told the jury.

He predicted plaintiff attorneys would play a "race card," accuse Johnson & Johnson of going after groups including African Americans and Hispanics to sell their baby powder products.

“They play the race card saying we’re marketing to demographics,” Calfo said. “That’s just to make you mad. Every one of us can get angry at a big corporation.”

Calfo made the point that Johnson & Johnson was staffed by everyday people, belying the false image of a heartless corporation.

“This is an upsetting accusation that we (Johnson & Johnson) are bad people,” Calfo said.

Calfo said tremolite fragments found in the baby powder were not asbestos and that Johnson & Johnson baby powder does not cause mesothelioma.

He cited studies of miners and millers who had dug talc powder that showed none of them had developed mesothelioma.

“People worked day in and day out mining the talc and there were zero cases (mesothelioma),” he said.

Calfo said during the 1970s and beyond Johnson & Johnson in its testing of talc powder had surpassed industry standards including submitting powder to outside independent labs for testing like the McCrone Group located in Illinois.

He said McCrone had determined there were no asbestos minerals in talc powder taken from mines in Vermont, and he added, that mesothelioma can occur naturally for no known reason.

“People can get lung cancer who never smoked,” Calfo said. “There is no scientific peer reviewed paper that says Johnson & Johnson’s baby powder causes mesothelioma.”

Calfo asked the jury for justice and to use common sense in their deliberation.

In testimony on April 23, Dr. Jerrold Abraham, a New York pathologist with Upstate University Hospital and a witness called by plaintiff attorneys, agreed that labs reported finding tremolite asbestos in the baby powder during testing in the 1970s.

Abraham said his employer billed $800 per hour for him to testify.  

In testimony on April 24, Dr. Allan Smith, another plaintiff witness and a professor of occupational health and epidemiology at the UC Berkeley School of Public Health, said there is no safe minimum exposure limit to asbestos. He disputed the notion that women contract the disease differently than men because of physical differences.

“Exposure in women is harder to determine,” Smith said.

Smith said Schmitz had used talc powder extensively for years putting the powder on her neck, arms and thighs, causing the air around her to become powdery.

Under cross examination by defense attorneys Smith agreed he had testified as a witness for the plaintiff’s law firm for years and was being paid $700 per hour to testify.

“You’re not an expert on talc powder?” 

“Correct,” Smith said.

“Have you ever done any scientific papers on cosmetic talc?”

“No I have not,” Smith said.     

Alameda Superior Court Judge Frank Roesch is presiding.  

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