LOS ANGELES – Closing remarks in a trial to determine if Amy Fong developed mesothelioma as a result of breathing allegedly asbestos-tainted Johnson & Johnson Baby Powder mined in Korea took place on Thursday with Fong’s attorneys accusing the company of negligence and fraud.
Attorneys for Johnson & Johnson countered that the baby powder was pure talc and that plaintiff attorneys were imagining asbestos where there was none.
The seven-week-long trial has been 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 period of time from 1971 to 2004.
Fong’s attorneys allege talc powder mined in Korea and inhaled by Fong in Hong Kong where she lived during the 1970s was the cause of her disease.
Johnson & Johnson attorneys argued 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, or possibly a genetic malfunction, inherited trait or naturally occurring disease.
Joseph Satterley, Fong’s attorney, accused Johnson & Johnson officials of product defect, failure to warn of danger, negligence and fraud.
“Amy Fong’s malignant mesothelioma was caused by Johnson & Johnson Baby Powder and will result in her untimely death,” he said.
Satterley asked the jury to consider the trail of historical inter-company documents presented as evidence that he said showed Johnson & Johnson officials knew for decades there was asbestos minerals in the powder.
“This is about trust,” Satterley said. “Amy and her mother trusted; that trust was broken.”
Satterley noted that Johnson & Johnson officials considered the baby powder as their “flagship” and “sacred cow,” though it was but a small part of the company’s total business, because of the trust the public had in the baby powder and the symbolism of the bond between mother and child.
“There is no safe level of asbestos, everyone agrees,” Satterley said. “J&J knew about the presence of asbestos in their talc.”
A Johnson & Johnson document from 1969 Satterley displayed advised, “It would be prudent to limit tremolite (asbestos related mineral). We could be involved in litigation.”
Another document from 1972 noted: “The presence of tremolite amphibole is bad.”
Yet another displayed document from 1974 Satterley called the most important and marked confidential, stated, “Material presenting a severe health hazard is potentially present in all talc ores at this time.”
Satterley said from the 1960s on, Johnson & Johnson officials knew there were “needle-like” particles in the baby powder as well as fibrous tremolite and anthophyllite.
He said a responsible company having doubts about its product would remove the product from the marketplace and do more testing.
“This is not reasonable, this is negligence,” Satterley said. “There are (Johnson & Johnson-sponsored) tests that said non-detected (for asbestos). My response to that is there wasn't proper testing. Some of the tests were done by only using X-ray diffraction (determines crystal structure), which doesn’t tell you if a material is fibrous.”
Satterley cited a Colorado School of Mines report from the 1970s that reported fibrous tremolite in the baby powder. In addition, he said Dr. F.D. Pooley, a researcher in Wales, had found chrysotile, one of six asbestos minerals, in the powder.
A test done by Mount Sinai Hospital in New York also found traces of asbestos in the baby powder, Satterley added.
Asbestos researchers Dr. Alice Blount and Dr. William Longo, both expert witnesses for the plaintiff, earlier testified they had found asbestos in the baby powder using heavy liquid separation and high-powered microscopes.
Developed in the 1970s, heavy liquid separation involves spinning a tube filled with talc to separate the talc from heavier materials that could then be looked at under a microscope.
Critics of Johnson & Johnson said the company should have used the heavy liquid method because of its sensitivity in detecting asbestos. Company officials declined to adopt it, saying it could not detect chrysotile because it won’t separate well from talc.
Defendant attorneys added that government agencies like the Food & Drug Administration (FDA) had also declined to adopt the heavy liquid technique.
However, plaintiff attorneys alleged that company officials were frightened of what the heavy liquid approach might find in the powder.
Satterley displayed a Johnson & Johnson document that expressed concern the heavy liquid concentration method was “too sensitive.”
“How is a test too sensitive when you’re looking for a carcinogen?” Satterley asked. “You’re able to better see asbestos. They (J&J) didn’t want to find it.”
Satterley said the company could have switched to corn starch for a baby powder, which is safe, but did not. The company did offer corn starch as an alternative in the 1980s, but it never replaced the use of talc.
Satterley accused Johnson & Johnson along with other talc companies of putting pressure on the FDA to decide not to regulate talc purity, but instead to let the industry regulate itself.
He displayed a graphic that said Johnson & Johnson had a net worth of $64.6 billion.
Satterley asked the jury to evaluate Fong’s pain and suffering in setting an appropriate penalty.
"It’s a horrible way to die,” Satterley said. “This is about values, duty, responsibility, about a product being safe. You (jury) will take the evidence and do what’s right.”
Kimberly Branscome, the attorney for Johnson & Johnson, said plaintiff attorneys had misused documents, quoting them out of context to skew the evidence.
“Can you hold the plaintiffs to their burden of proof?” she asked. “We don’t think they’ve done it. They said men and women at Johnson & Johnson knew they had a product that would hurt people. That is a very high bar (to prove). You’ve got to bring in evidence to back these claims.”
Branscome said many of the documents cited by Satterley in his closing arguments the jury was seeing only for the first time.
“Why the first time in closing arguments?” she asked. “Attorney arguments are not evidence. Mr. Satterley is interpreting documents from the 1970s.”
Branscome disputed what she said was an assertion by Satterley that said Johnson & Johnson had tried to control the findings of Pooley by demanding prior company approval of research findings before releasing them to the public.
“That was a research grant for a student,” Branscome said of the document. “It had conditions. There was nothing wrong. It was an offer, we don’t even know if it was signed.”
Branscome also challenged what she said were statements from Satterley that only X-ray diffraction had been used in talc testing by the company. She noted that state-of-the-art microscopes were also used.
She exhibited for the jury statements from John Hopkins, quality control officer for Johnson & Johnson from 1974 to 2000, who said he and his family, including his grandchildren, used Johnson & Johnson Baby Powder and felt safe using it. Hopkins earlier testified for the defense.
A projected slide read that company officials offered 176,000 samplings of talc powder to be tested at “every hour and every shift, five days a week, 49 weeks a year, for 44 years.”
Branscome listed the government organizations that had conducted tests of the powder, including the National Institute for Occupational Safety and Health (NIOSH), Harvard and Princeton universities, the United States Geologic Survey (USGS) and the FDA.
“The FDA in 1986 responded to a citizen’s petition (calling for warning labels on baby powder) and conducted an analysis,” Branscome said. “They found there was no basis for a health hazard and without evidence, you don’t put a warning label on a product.”
Branscome said witness testimony established that not a single government agency concluded there was asbestos in cosmetic talc powder.
“Who says there’s asbestos in baby powder?” she asked. “Dr. Longo said nine times under oath he did not test cosmetic talc powder prior to 2016 before being hired in this litigation.”
Branscome maintained that prior to 2010 Longo had tested cosmetic talc powder and had found no asbestos in it.
“He (Longo) didn’t tell the truth,” she said.
Branscome debunked the testimony of plaintiff witnesses such as Dr. Jacqueline Molene, a New York occupational health specialist, saying Molene had impeached herself on every important issue.
“The plaintiff witnesses were not consistent,” Branscome said. “They had radically different opinions. They have been paid millions to testify for plaintiffs.”
“The burden of proof, what does it mean?” she asked. “They have to prove every element in their claim. Was there asbestos in the bottles Fong actually used? No. Was asbestos a substantial factor in her cancer? They have to prove it. They can’t get there if they can’t prove there was asbestos in the first place.”
Branscome said Blount admitted she had gotten her sample testing mixed up and Longo acknowledged that not all tremolite or actinolite is asbestos. Of amphibole minerals, 99 percent are not asbestos, she said.
“All of the plaintiff experts rely on Longo,” Branscome said.
She alleged that Longo had gotten his tests wrong, misidentifying cleavage fragments (crushed non-asbestos rocks) as asbestos.
Branscome used what she said was a quote from Longo.
“Asked if it’s a fiber and you have no information about its source or what mine it came from, he (Longo) said, ‘You always say it’s asbestos, no matter what.’”