LOS ANGELES - In a trial to decide if asbestos in baby powder caused a woman to develop mesothelioma, attorneys for Johnson & Johnson on Monday argued that Amy Fong had lived near an asbestos-producing incinerator in Hong Kong that caused her disease.
The trial is being streamed live courtesy of Courtroom View Network.
Fong, 48, is suing Johnson & Johnson and its talc powder supplier Imerys Talc America, claiming she developed mesothelioma, a deadly cancer of the lungs, as a result of breathing in asbestos-contaminated baby powder over a long period of time.
The case is among the latest of hundreds of lawsuits filed against J&J by women across the country, most alleging the company’s talcum powder products caused them to develop ovarian cancer. Mesothelioma is a much rarer disease with 3,200 cases in the U.S. reported annually.
J&J won two recent court cases, one a retrial in Torrance after a jury had deadlocked in a trial in 2018. A third trial ended in a $40 million plaintiff verdict.
In an unusual development, officials of Johnson & Johnson announced on Oct. 18 it would recall 33,000 bottles of baby powder for possible contamination from asbestos, according to a CVN report.
The trial in the Los Angeles Superior Court is expected to run through November. Judge David Cunningham is presiding.
During opening remarks on Oct. 22, Joseph Satterley, Fong’s attorney with the Oakland law firm of Kazan, McClain, Satterley & Greenwood, argued that J&J officials knew for years its baby powder products were contaminated. He alleged the company withheld it from the public to preserve their profits and image.
“There have been well over 50 bottles tested by experts who found asbestos in it (powder),” Satterley said.
Kimberly Branscome, attorney for Johnson & Johnson with the Chicago law firm of Kirkland and Ellis, countered that the disease mesothelioma would be a more common occurrence if the baby powder contained asbestos.
“The evidence will show that out of 325 million (powder) users, mesothelioma is still an incredibly rare disease,” she said.
Dr. Nam Paik and industrial hygienist with Seoul National University was called as a witness by Satterley. He testified last week that he did an evaluation of Fong’s Johnson & Johnson talc powder use and calling it “substantial,” linked it to her cancer.
During cross examination on Monday, Branscome attempted to establish the cause of disease was a result of Fong living near a waste incineration plant in Hong Kong during the 1970s and not from baby powder use.
“She (Fong) lived less than a quarter mile away (from plant). Did you investigate whether the site was toxic?” Branscome asked.
“I don’t know,” Paik responded.
“It would be relevant if asbestos was around.”
“I don’t know, it depends on the incinerator temperature,” Paik said.
“Asbestos could have been used to construct the incinerator.”
“Correct,” Paik said.
“Was the (incinerator) plant itself built of asbestos materials?”
“I don’t know,” Paik said.
“It’s important to dispose of asbestos materials.”
“Correct," Paik said.
Branscome indicated that Hong Kong had loose asbestos regulations in the 1970s, and that people could develop diseases as a result.
“Did you check the asbestos regulations in Hong Kong when Fong lived there?” she asked.
“In detail, no,” Paik answered.
Branscome asked if in addition to an incinerator plant Fong had also lived near a ship yard and landfill site in the 1970s and '80s.
“I can’t answer that one,” Paik said.
“She lived less than a kilometer from a landfill?”
“I’m not sure,” Paik said, then added, “right, one kilometer.”
Paik agreed that a calculation he had made to estimate Fong’s exposure to powder applied by her mother when she was a baby had been based on the study of literature.
“I used the best available data,” he said.
“You have never seen a Johnson & Johnson document that said there was asbestos in talc,” Branscome said.
“Correct,” Paik answered.
Talc, a mined mineral, was acquired for Johnson & Johnson from mines in Italy, Vermont, and more recently Korea and China.
Paik agreed he had toured the Korean mine where J&J got its talc, but did not wear a respirator for protection during the visit.
“No one (on mine tour) wore a respirator,” Branscome said.
“Correct,” Paik said.
“Do they plan to open a tea room at the mine?” Branscome asked.
“Outside (mine),” Paik said.
On redirect examination, Satterley asked Paik if mining was going on during his visit to the Korean site.
“No, no operation,” Paik said.
Is fibrous tremolite (asbestos related mineral) asbestos?” Satterley asked.
“Yes,” Paik said.
“Have you seen Johnson & Johnson documents that said there was fibrous tremolite in the Dong Yang (Korea) mine?”
Paik said he had.
Paik also agreed the National Institute for Occupational Safety and Health (NIOSH) had issued a statement in 1972 that minerals including chrysotile, anthophyllite and tremolite were considered asbestos materials.
“Did Johnson & Johnson attorneys give you any data (air sampling) from around Hong Kong?” Satterley asked.
“No,” Paik said.
“Is it appropriate to say because you live in a city, you were exposed to asbestos?”
“No.”
Paik said no asbestos had been found in the building where Fong had lived in Hong Kong.