ST. LOUIS – Attorneys sparred over pathology slides at trial on June 13 in which baby powder maker Johnson & Johnson is accused of selling product that caused 22 women to develop ovarian cancer.
The lawyers disagreed on what the slides that were projected on the courtroom wall revealed.
Trial coverage is being streamed courtesy of Courtroom View Network.
“In the case of Sheila Brooks you didn’t find a single asbestos structure,” Morton Dubin of the New York-based law firm Orrick, Herrington & Sutcliffe, defense attorney for Johnson & Johnson, told a noted specialist called to do lab tests on the women.
Dr. Mark Rigler, chief scientific officer and senior consultant for Georgia-based MAS, a laboratory for asbestos testing and industrial hygiene, said even though a patient’s lab slide did not detect the presence of asbestos fibers, it was not proof of the absence of exposure to the deadly mineral.
“A negative result is not proof of the absence of significant exposure,” Rigler said.
The medical slide taken of Brooks’ ovarian region and fallopian tube showed no asbestos, but did reveal plate talc particles and tremolite structures, a fiber-form and one of the six recognized types of asbestos, according to Wednesday's testimony.
Attorneys for both sides in the St. Louis City Circuit Court case differed as to whether the women’s bodies had acquired the tremolite and other asbestos derivatives shown in the slides from the baby powder, or from breathing dust from other commercial product sources, for example roof insulation, piping, fiberboard and others. Substances revealed in the slides included asbestos-related toxins including anthophyyllite and crocidolite.
Rigler said in the case of Brooks that even though an asbestos structure wasn’t detected, it wasn’t proof there wasn’t any of the substance present.
“That none (asbestos) was detected is in my report,” Rigler said.
Dubin pressed that the slide indicated no presence of asbestos, but Rigler continued to answer by saying only that “none was detected.”
Mark Lanier of the Lanier Law Firm of Houston, New York and Los Angeles, lead attorney for plaintiffs, contended that higher levels of substances such as anthophyyllite can indicate exposure.
“That is a fingerprint,” Lanier said.
“That is true,” Rigler agreed.
“A negative result (no asbestos structure detected) is not proof of the absence of significant exposure, especially where crocidolite is a concern,” Lanier said. “He (Dubin) wants to take the negatives and say because you did not find it (asbestos); that the women were never exposed. You can’t say that can you?
“No you cannot,” Rigler answered.
“It just means they didn’t have enough to weigh down the bathroom scales,” Lanier said.
“True,” Rigler agreed.
However during cross examination Dubin said that a negative asbestos fiber finding on the slide the plaintiffs had interpreted as a case of seeing something that isn’t there.
“Have you heard of the saying heads I win, tails you lose?” Dubin asked Rigler.
“Yes,” Rigler said.
“It means if you find anything it’s significant, but if you don’t find anything, it’s not,” Dubin said. “Are you telling that to the jury?”
“No,” Rigler responded. “We’re saying we weren’t able to detect it.”
During the trial’s afternoon session one of the women diagnosed with ovarian cancer, Andrea Schwartz Thomas, recounted her ordeal for the jury in a projected film clip deposition. The Virginia woman, 44 at the time she was diagnosed, broke down and cried at times during the interview.
She said it started as hip and back pain in July of 2014 that quickly got much worse.
“The pain was excruciating,” she said. “All I wanted to do was sleep. I wanted to shoot myself.”
She was found to have stage IV ovarian cancer that had spread to her liver. Chemotherapy treatments were administered.
Thomas said she had used the J&J baby powder at times daily for a number of years.
She was asked by associate attorney Rachel Lanier where she applied the powder?
“From the neck down to the feet.”
Thomas said she had also used the talc powder on her children and a grandson.
“Were you told that J&J powder causes cancer and contains asbestos?” Lanier asked.
“No,” Thomas said.
“How are you today?”
“Okay I guess,” Thomas responded. “There are good days and bad, more bad than good.”