ST. LOUIS – Mark Lanier, the attorney for 22 women suing baby powder maker Johnson & Johnson alleging the talc product gave them ovarian cancer, told a star witness for the defense he was engaging in a “name game,” attempting to call asbestos something else.
Proceedings on June 28 featured at-times testy exchanges and semantics disagreements between Lanier and defense witness Dr. Matthew Sanchez, an investigator for the RJ Lee Group, a materials lab and industrial forensics consulting firm based in Monroeville, Penn.
“Did you know your company was cited in a sense for using this approach?” Lanier asked Sanchez. “Playing with asbestos fiber definitions that aren’t health-based, that won’t allow good evidence about whether asbestos is causing cancer? Did you know your company (RJ Lee) had been written up by the EPA (Environmental Protection Agency) for that?”
“It wasn’t written up, but that’s what the EPA said, yes,” Sanchez said.
Sanchez, a geology expert, was called by attorneys for Johnson & Johnson in the lawsuit now finishing its third week in the St. Louis City Circuit Court.
Coverage of the trial is being streamed courtesy of Courtroom View Network.
The EPA has 10 regional offices across the country and a central headquarters in Washington D.C. Lanier produced a 2006 communication between RJ Lee and EPA Region 9 in El Dorado Hills, California, in which the agency criticized RJ Lee for applying a geologic definition standard rather than a public health definition to characterize microscopic structures.
“This (RJ Lee) approach advocates use of asbestos fiber definitions which are not health-based or supported by the majority of experts in the health care community, and which would not allow comparison to existing epidemiologic (disease control) data on asbestos related cancers,” the communication read.
“This is the EPA responding to you,” Lanier told Sanchez.
Discussion centered around a sedimentary mined mineral called tremolite, which can appear in talc powder, and actinolite. Both minerals have the possibility of containing asbestos. In addition at issue was whether a rock sample revealed asbestos fibers, or was instead labeled a cleavage fragment - a non-asbestos mineral particle similar in form to asbestos fibers.
“Most important to this case is RJ Lee applies a geologic definition rather than a public health definition to characterize microscopic structures,” Lanier said.
Lanier read from the EPA response.
“The RJ Lee report relies heavily on the geologic distinction between asbestos fibers and cleavage fragments with the implication that exposure to cleavage fragments was benign, with little or no health significance. Did I read that document correctly?”
“You did,” Sanchez said.
“You’re trying to say tremolite is cleavage fragments instead of asbestos fibers,” Lanier said.
“They are cleavage fragments,” Sanchez said.
“You're calling it a cleavage fragment and pretending it’s not asbestos, right?” Lanier asked.
“It’s not pretending,” Sanchez replied. “It’s not asbestos if it didn’t grow that way.”
For decades before mining operations moved to China talc for Johnson & Johnson baby powder was mined in Vermont. Lanier took issue with alleged false published reports he said showed that Vermont talc was clean of asbestos. He called it the “clean mine excuse.”
On cross-examination, Morton Dubin for Johnson & Johnson refuted Lanier’s contentions that RJ Lee engaged in word-play to cover up asbestos risk.
“There’s been a lot of reference to the name game,” Dubin said. “Would you agree it’s wrong to call things asbestos that are not, to try and push a lawsuit?”
“Yes that would be wrong,” Sanchez said.
“One of the things we’ve been talking about was whether or not Dr. Longo did precisely that, call things asbestos that are not in support of a lawsuit,” Dubin said.
Dr. William Longo, scientist and electron microscope researcher with the Georgia-based MAS lab, has served as an expert for the plaintiffs.
Dubin asked Sanchez if according to the IARC (International Agency for Research on Cancer), tremolite and five similar minerals can have elongated forms (similar to asbestos fibers) without being asbestos.
“When they are not asbestosform, they should not be called asbestos,” Dubin said.
“Correct,” Sanchez answered.