In first talc trial of the year, Johnson & Johnson attorney grills plaintiffs’ expert

OAKLAND -- A Johnson & Johnson attorney grilled an epidemiologist Wednesday over his testimony that the company engaged in a campaign of misinformation and deception to prevent its talc-based products from being listed as substances known to contain hazardous levels of asbestos.

Defense attorney Michael A. Brown of Nelson Mullins Riley & Scarborough LLP challenged the witness by referring to studies that asbestos is in ambient air and arguing there was no evidence how the plaintiff contracted mesothelioma.

Plaintiffs' attorneys argued the company improperly influenced studies and lobbied organizations testing the carcinogenicity of its products.

"There's a lot of missing information," said Brown University epidemiologist David Egilman, the plaintiffs' expert, about what he said were inconsistencies in a study presented by Johnson & Johnson.

Defense attorney Brown offered alternative causes of the plaintiff's disease. "Since we know we can measure asbestos in the air, and that it is certainly more than trace amounts, does that mean asbestos in the air is causing mesothelioma to anyone who gets it?" Brown asked.

"That's too vague a question to answer," Egilman responded.

"You told this jury trace amounts [of asbestos] can cause mesothelioma. So can measured amounts cause it?" Brown asked.

"Not for everyone, but it increases risk," Egilman said.

"So you're saying that air is a cause of someone getting mesothelioma," Brown asked.

"It can or can't be," Egilman responded. "It depends what else they were exposed to."

Plaintiffs' attorneys contended internal company documents revealed Johnson & Johnson learned of potential health hazards of its talc in the 1970s and strategized to aggressively dispute the tentative findings.

"I'm aware this approach is not the way J&J does things," wrote Vernon Zeitz, head of research and development for Windsor Minerals, the company's talc mining operation, in a memorandum to company executives. "It is imperative we overcome the inertia of our past to mobilize our defenses and offenses to enter the battle with the outcome assured."

The Alameda County case is the first of over a dozen trials scheduled in 2019 against Johnson & Johnson for similar claims. The company defeated many of those complaints last year but faces some 11,700 lawsuits over the safety of its talc-based products.

Superior Court Judge Brad Seligman is presiding over the trial. Leavitt v. Johnson & Johnson, RG17882401 (Alameda Super. Ct., filed April 14, 2017).

Plaintiff Terry Leavitt claimed her exposure to Johnson & Johnson's cosmetic talc caused her to develop mesothelioma, a fatal form of lung cancer. She is arguing talc mined from South Korea in the 1960s tested positive for asbestos fibers as has talc from domestic mines.

Plaintiffs' attorney Joseph Satterley of Kazan, McClain, Satterley & Greenwood argued Johnson & Johnson maliciously promoted its talc-based products while lobbying public health organizations, such as ASTM International, which sets safety standards for materials, products and services.

He asked Egilman about a memo in which William Ashton, the company's talc supply chief, wrote, "Our main interest in [ASTM] was how asbestos minerals were defined. ... I was appointed to the definition subcommittee to help keep talc out of it."

"He's trying to make a definition that would prevent talc from being considered," Egilman responded.