Southern California Record

Friday, December 6, 2019

Statistician says almost certain plaintiff was exposed to asbestos in baby powder in mesothelioma trial with Johnson & Johnson; Defense says findings relied on flawed data

State Court

By John Sammon | Nov 19, 2019

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LOS ANGELES – In a trial to decide if Amy Fong contracted mesothelioma from asbestos allegedly in Johnson & Johnson Baby Powder, a statistician brought in as an expert witness said on Monday it’s almost a certainty Fong was exposed.

“If she used 100 containers (baby powder), the chance she (Fong) avoided asbestos is 10 quintillion times smaller than the chance she could win the Powerball (lottery),” Dr. David Madigan, a statistics professor at Columbia University, told Fong’s attorney Joseph Satterley.

However, attorneys for Johnson & Johnson said the fact Madigan relied exclusively on the test findings of Dr. William Longo, a star witness for the plaintiff, flawed his opinions.

The trial in the Los Angeles Superior Court is bring streamed live courtesy of Courtroom View Network.

Fong, 48, a resident of Pasadena, sued 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.

Fong’s attorneys allege talc powder mined in Korea and inhaled by Fong in Hong Kong where she lived during the 1970s is the cause of her disease.

Johnson & Johnson attorneys are attempting to demonstrate the woman's mesothelioma could have been contracted from asbestos in fumes inhaled from an incinerator at a landfill near her home in Hong Kong.

Madigan told Satterley he had taken into account the number of bottles Fong had reportedly used over a period of her lifetime (465) and the likelihood of asbestos exposure based on Longo’s test findings.

Longo, a Georgia-based microscope researcher with the MAS lab, testified earlier in the trial he had found tremolite and anthophyllite asbestos in the baby powder samples, in one case in six out of seven bottles.

Madigan based his statistical analysis on what is known as a “binomial distribution.”

“The calculating is routine, you can find it in textbooks,” Madigan said. “Anyone can plug in the numbers – it’s straightforward. It’s based on Longo’s tests and use of the baby powder by the plaintiff (Fong). You can compute the probability, the chance there was asbestos in a number of containers.”

Madigan said he used a figure of 50 percent of the sample bottles of baby powder tested by Longo to be positive for asbestos. He indicated that by using the number of bottles used by the plaintiff and the number of years she applied the powder, he could calculate a range of likelihood for asbestos exposure.

“The plaintiff would have used many containers,” Madigan said. “The assumption is Longo’s sample (tests) are representative of a population of bottles and is not biased.”

Satterley asked Madigan if Johnson & Johnson could purposely supply bottles for testing that did not contain asbestos.

“No,” Madigan said. “No one could look at two bottles and say that one is more likely to contain asbestos. There’s no possible way unless something criminal, something truly nefarious were done.”

Satterley said that of Korean talc samples tested by Longo, 86 percent tested positive for asbestos, 81 percent of talc from Vermont and 35 percent from China. Talc for baby powder was also acquired from mines in Italy.

During cross-examination, Jay Bhimani, an attorney for Johnson & Johnson, attempted to undermine Madigan’s testimony by calling attention to his dependence on Longo for the information.

“You’re not a microbiologist or geologist?” Bhimani asked.

“Correct,” Madigan said.

“You made two assumptions: the (talc) samples were not biased and were representative of a population of containers,” Bhimani said.

Madigan agreed saying his figuring was based on Longo being correct and the assumption, “There were no false positives.”

“You visited Longo’s lab and it’s valid?”

“I’m proceeding on that basis,” Madigan said.

“Other than Longo, you haven’t consulted any other scientist whether it’s valid.”

“True,” Madigan said.

Madigan agreed he had not read the methodology used by Dr. Matthew Sanchez, a geologist with the R.J. Lee Group lab in Pennsylvania. Sanchez, an expert witness for Johnson & Johnson, has claimed there is no asbestos in the baby powder. He is expected to testify later in the trial.

Bhimani asked Madigan what would happen to his calculations if Longo was wrong. Madigan conceded the numbers would change if Longo was grossly wrong, not much if he was slightly wrong.

“It’s a matter of degree,” Madigan said.

“Did you know that Longo uses analysts (to do testing)?” Bhimani asked.

“Longo is very involved, it’s not a one-man effort,” Madigan said. “It’s a team.”

“You don’t know if Longo’s samples are representative.”

“I believe they are representative and unbiased.”

"If it was biased, it could be a problem,” Bhimani said.

“It depends on the degree,” Madigan said.

Madigan agreed that he didn’t know how the test bottles were stored or where before they were sent to Johnson & Johnson by users.

“Have you looked at the bottles themselves?”

“No,” Madigan said.

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