SAN FRANCISCO (Legal Newsline) - Plaintiff experts who say cosmetic talcum powder causes the fatal cancer mesothelioma were properly allowed to testify in a trial that resulted in a $12 million plaintiff verdict, a California appeals court ruled, rejecting defense arguments they didn’t have scientific evidence to support their opinions.
The decision upheld the testimony of Dr. Egilman, an expert who has appeared in a broad variety of toxic tort cases, that even asbestos-free talcum powder can cause cancer, potentially broadening the variety of plaintiffs who blame the disease on talc. It is with the aid of experts like Dr. Egilman that plaintiff lawyers have solved the demographic problem posed by female mesothelioma patients, who typically lack the evidence of workplace exposure to asbestos to support their claims.
Patricia Schmitz claimed she used Johnson’s Baby Powder and Colgate’s Cashmere Bouquet from age 11 until her late forties and was diagnosed with mesothelioma in 2018. She died after an Alameda County jury awarded her $12 million in damages in 2019.
Colgate and J&J argued the trial judge should have excluded the testimony of plaintiff experts including Dr. Egilman and William Longo, a materials scientist. Longo provides the foundation for much of the evidence jurors hear in talc cases by testifying that his laboratory can identify asbestos fibers in decades-old samples of cosmetic talc that plaintiff lawyers obtain from eBay and other sources.
With that established, medical experts can then tell jurors the asbestos was the cause of the plaintiff’s cancer. J&J’s experts counter that Longo is misidentifying talc fibers as asbestos and even if his analysis is correct, the amount of asbestos he says is in talc is far less than what people breath every day in normal background exposures.
The defendants argued Longo relied upon decades-old talc samples that plaintiff lawyers obtained from a variety of places including eBay and that they didn’t come with a reliable chain of custody. They also argued Longo impermissibly extrapolated Schmitz’s lifetime exposure to asbestos from what he claimed to have found in those samples. Dr. Egilman, the defense argued, had no scientific basis for his claim that even fibrous particles in talc, which share some rough dimensions with asbestos, can cause cancer.
California’s First Appellate District Court rejected every argument in a Dec. 23 decision.
Dr. Egilman cited publications by the International Agency for Research on Cancer or IARC, a World Health Organization affiliate that has provided key evidence to support U.S. toxic-tort claims including that Roundup herbicide causes cancer, despite nearly universal disagreement by government regulators.
The defendants said IARC has had a shifting position on whether talc containing “abestiform fibres,” but not chemically identified asbestos, causes cancer. But the appeals court said “based on the information before it, the trial court could reasonably conclude that Dr. Eligman’s opinion had some support in materials from the IARC.”
Dr. Egilman was justified in telling jurors “the human body cannot tell the difference between the fibers of the asbestos minerals and the talc,” the appeals court concluded.
The appeals court also rejected defense objections that talc samples had an unreliable chain of custody and might have been contaminated with asbestos fibers. Longo said he found asbestos in 38 vintage bottles of Cashmere Bouquet, but he also tested 20 samples obtained from Colgate. Since Colgate didn’t object to those samples, the appeals court ruled, it waived any claim they might have been tainted.
The court likewise rejected arguments Longo improperly testified about Schmitz’s exposure to asbestos based on his estimate of how many fibers were in the powder she used derived from the testing he did on other samples. The appeals court said his testimony was also supported by historical documents plaintiff lawyers say show there was asbestos in cosmetic talc, claims the defendants deny. And when Dr. Egilman then used Longo’s data to estimate Schmitz inhaled 42 to 61 billion asbestos fibers in her lifetime, the court said, that was allowed under the theory that there is “no safe exposure” to asbestos.
Johnson & Johnson also moved for a mistrial after plaintiff lawyers repeatedly allowed references to ovarian cancer into deposition videos the jury saw, despite the judge’s order to keep them out. But J&J failed to object immediately, the appeals court said, including when a video inexplicably stopped with the word “ovarian” displayed in front of the jury for a few seconds, instead filing a mistrial motion a week later. Since it waited too long to object, the appeals court said, it waived any chance for mistrial.