LOS ANGELES – An expert witness called by attorneys defending Johnson & Johnson said on Monday airborne asbestos particles from a landfill and incinerator in Hong Kong was the likely cause of Amy Fong’s mesothelioma and not baby powder.
“In Hong Kong, they had a housing (shortage) and waste disposal problem,” said Brian Daly, an industrial hygienist. “They were filling in the bay to create more land and to dump rubbish. At the landfill, 30 percent was construction debris. You get emissions. Dumpsites are dusty.”
The trial in the Los Angeles Superior Court is being 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. Her 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.
Daly journeyed to Hong Kong to see the site of Fong’s former home and its proximity to what was an open dump and (rubbish) incinerator. He said the facility was little more than a half-mile from Fong’s residence.
"In the 1970s in Hong Kong, there were high-rise buildings (constructed)," Daly said. "Hong Kong is not a big place. It does not have its own natural resources, so asbestos (in building materials) had to come through its ports.”
Daly said although government regulations regarding asbestos were started in the U.S. as early as the 1930s, there was little in Hong Kong until the 1990s.
Daly said the incinerator near the dumpsite was used to reduce the amount of waste by burning it. However this would not eliminate asbestos fibers from becoming airborne. He added that the asbestos fibers could easily drift over the apartment where Fong lived with her grandparents.
“Some of the ash will go up a chimney and there is air pollution,” Daly said.
“Would this (burning) completely eliminate asbestos waste?” an attorney for Johnson & Johnson asked.
“Wrong,” Daly said. “You’d have to reach a temperature (incinerator) of 2,000 degrees.”
The Hong Kong site was not capable of such heat, he added.
Daly said mesothelioma was unheard of in Hong Kong before 1947 when ship salvaging and wrecking became major businesses in the region.
He said he had done an analysis of Fong’s lifetime baby powder use based on information supplied by Dr. William Longo, a microscope researcher who earlier testified for the plaintiff saying he had found asbestos in the baby powder.
Using Longo’s estimations, Daly said Fong was exposed to an estimated 6.8 applications of the powder daily as an infant up to 2 years of age, and then over the years 1.2 applications per day as an adult.
Daly said he went with Longo’s statistics to be “conservative” in his own figuring.
The results he said showed that Fong had no more than a background level of asbestos exposure, the small amount breathed in ambient air by all people and not considered a health threat.
“Assuming Longo is right, it (exposure) is almost at zero,” Daly said.
“Was Fong exposed to above background levels?”
“Clearly, no,” Daly answered.
On cross-examination, Joseph Satterley, Fong’s attorney, told Daly he had never testified for a plaintiff.
“I believe that’s correct,” Daly said.
“So far, for the first half of 2019 you billed Johnson & Johnson $180,000?”
“Correct.”
“You make $575 per hour?”
“For testimony, yes.”
Daly agreed lawyers for Johnson & Johnson had provided him with literature on Hong Kong including its ship industry.
“If asbestos is not disturbed, it will not release fibers,” Satterley said.
“That’s true,” Daly responded.
Satterley said Daly had no proof Fong was near a construction site where asbestos was released into her breathing zone and could not identify a single witness who saw her near asbestos building materials.
“You have never taken an air sample?” Satterley asked.
“That’s true,” Daly said.
“Amy (Fong) had over 3,000 applications (baby powder).”
“Yes.”
Satterley asked Daly if in his figuring he neglected to add the background level of asbestos exposure to the amount of baby powder Fong inhaled.
“It would be unfair to take the background out,” Satterley said.
Daly disagreed his findings were flawed.
“I would not take anything out,” he said.