LOS ANGELES - In one of the first in-person talc trials to be held after a year of court closures because of the COVID-19 pandemic, attorneys for plaintiff Linda Zimmerman will attempt to convince a jury that talc powder laced with asbestos and supplied by New Jersey- based Whittaker Clarke & Daniels caused Zimmerman’s mesothelioma, a deadly disease of the linings of the lungs.
Courtroom View Network is providing video coverage of the trial.
Zimmerman’s attorney Leah Kagan with the Dallas-based law firm Simon Greenstone Panatier told a jury her client used the talc powder for decades not knowing its dangers.
“She (Zimmerman) didn’t know she was exposed because she didn’t know the talc powder contained asbestos,” Kagan said.
Because of the ongoing COVID-19 pandemic, attorneys, jurors and Los Angeles Superior Court Judge David Cunningham all wore masks. Instead of seating in a jury box, jury members were seated at social distances in audience seating.
Kagan said Zimmerman, a mother of two sons and a grandmother of four grandchildren had used cosmetic products for over 40 years including Johnson & Johnson baby powder, Avon Unforgettable (beauty powder), Jean Nate and Chanel Number Five. Whittaker supplied the talc powder for the products.
“Mesothelioma is not spontaneous,” Kagan said. “It is not hereditary. It is a man-made cancer. This is about holding them (Whittaker) responsible.”
Kagan displayed on a screen a photo of a healthy human lung looking shiny and red, and a lung with mesothelioma, showing a growth of grey matter covering the lung. She explained such a growth makes the lung hard and makes it hard to breathe.
Mesothelioma is a rare disease with 3,000 cases reported yearly in the U.S. Zimmermann’s illness is described as terminal.
Kagan said asbestos is a fiber that once breathed in from powder dust can work its way down into the lungs. Minerals associated with it are tremolite, chrysotile, actinolite, crocidolite, anthophyllite, and chrysotile.
She said as far back as the 1890s asbestos was known to be dangerous to health and by the 1960s hundreds of articles had been written on its hazards.
Kagan said Whittaker officials knew there was asbestos in their powder and decided to ignore it.
“Whittaker manufactured and ground up raw talc, and sold it to cosmetic companies,” Kagan said. “Whittaker knew its talc had asbestos.”
Kagan accused the company of following the advice of a consultant to “blend” the talc with other substances so that its asbestos levels would be below detection limits.
She said the company’s testing of the talc using X-ray technology was not sensitive enough to spot smaller amounts, even though more powerful microscope testing was available.
Kagan displayed a graphic that read, “The company admits non-detection (of asbestos) does not mean there is no asbestos.”
In May of 2018, Zimmerman reported neck, shoulder and rib pain. Mesothelioma was confirmed by the Mayo Clinic and reviewed by the UCLA Medical Center.
Kagan described Zimmerman’s 10-hour surgery to remove diseased tissue as “excruciating,” how her lungs had to be drained of fluid and chemotherapy and radiation used.
Kagan said Zimmerman will not appear as a witness in the courtroom because of the coronavirus pandemic and her immune system, which has been weakened by the disease.
“We ask for compensation, accountability and justice,” Kagan told the jury.
For the defense, Viiu S. Khare, a Los Angeles-based attorney for Berks, Crane, Robinson & Seal said cosmetic talc powder did not cause Zimmerman’s mesothelioma. Instead she said Zimmerman’s exposure to the deadly mineral likely came from a Union Asbestos Rubber Co. factory in Bloomington, Ill., near where Zimmerman as a young girl had lived for 11 years.
Zimmerman’s step-father worked at the factory, which made insulation products with asbestos, Khare explained.
“He (stepfather) gets asbestos on his clothing, hair and skin, which pollutes his car,” Khare said. “He comes home and takes off his clothes, (asbestos) fibers scatter. She (Zimmerman) washes the clothes, it gets in the air, she breathes it, and that’s another exposure.”
Khare said Dr. William Longo, a noted microscope researcher who will appear as a witness for the plaintiff, had tested Union Asbestos Rubber products including thermal insulation that revealed amosite asbestos.
“Take-home and environmental exposure (from the factory) is what caused the mesothelioma,” Khare said.
She added that talc is soft and silky, a mineral that is layered, not hard and spiky like asbestos fibers.
“Talc in and of itself does not cause mesothelioma,” Khare contended.
Khare said Whittaker started testing of its talc in the 1970s and sent the mineral out to independent labs to test. No detectable levels of asbestos were found, she noted. In addition, Khare said studies of miners and millers who dug and processed cosmetic talc had shown no signs of increased risk for mesothelioma.
“This is what the evidence will show,” Khare predicted.
Khare asked the jury to consider if the witnesses for the plaintiff had a financial stake in the litigation.
“The witnesses are all paid,” she said. “We are presenting the only geologist. The plaintiff is not. Ask yourself, why? Examine anything the witnesses tell you. The evidence the plaintiffs have is flawed and you need to ask, what is more likely true?”
Called by Kagan as the first witness for the plaintiff, Dr. Theresa S. Emory a pathologist at the Mayo Clinic, described asbestos fibers as tiny, sharp and indestructible.
She testified the fibers are small enough they can get past the body’s defense system including nose hairs and hair-like projections in the throat called “cilia,” to enter cells at the lungs and damage their DNA causing cancer.
“The disease (mesothelioma) crushes the lung tissues and suffocates (lungs),” Emory said.
Emory said the disease has a latency period, taking a minimum of 10 years before symptoms develop and as long as up to 40 years,
“Has asbestos been found in cosmetic talc?” Kagan asked.
“Yes,” Emory said.
Emory cited several studies conducted from 1972 through 2014 that found asbestos in talc mined in Italy and North Carolina, used by companies such as Johnson & Johnson. She added that researchers concluded women who had been found to have asbestos in their system and who were not working in the asbestos industry acquired the toxic from the use of cosmetic talc.