Plaintiffs’ attorney says Johnson & Johnson took easy testing route in talc trial

By John Sammon | Jul 9, 2018

ST. LOUIS – During questioning of a witness for the defense, the attorney for 22 women suing Johnson & Johnson (J&J) for the baby powder they alleged contained asbestos and gave them ovarian cancer, portrayed a company that didn’t want to find out its talc contained asbestos and used a less stringent method of testing.

“Asbestos can be microscopic,” Mark Lanier, attorney for the plaintiffs, said.

“It’s very small,” agreed John Hopkins, an independent toxicology consultant and a Johnson & Johnson toxicologist from 1976 to 2000.

Coverage of the trial in the St. Louis City Circuit Court is being streamed courtesy of Courtroom View Network.

Mark Lanier   The Lanier Law Firm

Hopkins, who Lanier called "the corporate witness" for J&J, maintained that comprehensive multiple testing was done over the years by the company and independent researchers using state-of-the-art equipment (microscopes) to ensure the safety of the product.

Lanier countered that the company’s failure to use a newer type of test called “pre-concentration;” or greater screening (separation) of impurities in talc before major testing, made finding the asbestos in it similiar to looking for a needle in a haystack.

“It (pre-concentration) prepares the material by reducing it down for the right equipment,” Lanier said.

Lanier produced a letter dated 1976 from J&J officials that called the new concentration-separation method of (talc) ore testing a “disturbing proposal,” should the testing be used.

“There are many talc products that will be hard pressed in supporting purity claims, when ultra-sophisticated assay separation and isolation techniques are applied,” the letter stated.

“It doesn’t say we’re going to pick up something that isn’t there (asbestos); it says we’re going to show what is there, you see that?” Lanier asked.

“As written yes,” Hopkins agreed.

Lanier indicated that pre-concentration of talc and using a technology called X-ray diffraction, or X-rays used to determine the structure of a crystal, would have better enabled researchers to spot the talc in tremolite, a form of mineral that can have asbestos or not, also a related mineral Chrysotile.  

“Would you agree testing has got to be done right or it’s not as good as the paper it’s written on?” Lanier asked.

“Yes,” Hopkins responded.

To demonstrate the needle-in-haystack analogy and the need for more conclusive testing, Lanier produced a small scale and had Hopkins place some needles on it. The needles were too light. The scale gave no reading.

“How much does it weigh?” Lanier asked.

“It doesn’t show,” Hopkins said.

“Are there needles there?” Lanier said.

“There are needles there,” Hopkins said.

Peter Bicks, the defense attorney for J&J, asked Hopkins why the company did extensive testing of the product.

“The more testing you do, the more assurance the product is clean,” Hopkins said. “Testing done hour after hour, week after week gives you a higher level of confidence that the product you sell is clean.”

The McCrone Research Institute in Chicago, a microscopy research nonprofit, had provided Johnson & Johnson with tests that detected no asbestos in the talc powder for many years, Hopkins said.

“Although we found material that would be classified as fibrous, we detected no asbestos-form material,” Hopkins said. “Most of the fibrous material was talc in one form or another (ribbons and shards).”

“What did the testing tell you?” Bicks asked.

“That the product is clean and safe,” Hopkins said.

Bicks produced a letter from Richard Ellis, a microscopic researcher, dated 1979 that said he examined 18 samples of talc with a transmission electron microscope (TEM), and the material was found to be free of any asbestos-form minerals. Another document produced by Bicks from a researcher said the scientist was 99 percent confident no asbestos minerals had been detected.

“How would Johnson & Johnson go about rigging these tests?” Bicks asked.

“I don’t see how it’s possible,” Hopkins said. “You send in a sample and you get a report.”

Bicks asked Hopkins if it would be fair for Johnson & Johnson to use testing methods not as good as others?

“It’s not fair,” Hopkins said. “The TEM method gives a phenomenally high level of security."

Bicks asked Hopkins if he would use the product?

“I have no problem with using baby powder,” Hopkins said.

On cross-examination, Lanier questioned Hopkins’ competence to appear in the court as an expert and said J&J paid him hundreds of thousands of dollars to represent the company.

“You’ve been designated as the company (J&J) representative,” Lanier said. “This allows you to testify on things way outside of your expertise.”

“I’m testifying as a company representative,” Hopkins said.

“It’s rather unusual,” Lanier said. “You don’t work for the company, do you?”

“Not at this point in time, no,” Hopkins said.

Lanier said that in testimony taken in an earlier deposition Hopkins could not even name the five different types of asbestos minerals.

“I named five and I had a mental block on number six,” Hopkins recalled.  

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