On the second day of trial accusing talc powder supplier Whittaker, Clarke & Daniels of causing a woman to develop mesothelioma, Dr. Theresa S. Emory, a Mayo Clinic pathologist, told a jury Linda Zimmerman breathed way above background levels of asbestos in the beauty powder she used.
Background is the amount of asbestos people would normally breathe in from ambient air and is not considered a threat.
Zimmerman’s attorney Leah Kagan asked Emory if a person could be exposed to asbestos above background levels from the use of cosmetic talc.
“Yes,” Emory answered.
“Has this been shown in published (scientific) literature?” Kagan asked.
“Yes it has,” Emory responded.
The trial is being streamed live on Courtroom View Network.
Zimmerman was diagnosed in 2018 and is terminally ill from mesothelioma, a rare and fatal disease caused by a cancerous growth in the linings of the lungs.
A mother of two grown sons and a grandmother of four children, Zimmerman sued Whittaker, Clarke & Daniels, accusing the company of supplying the toxic talc powder she used in beauty products for over 40 years. They include Johnson & Johnson baby powder, and beauty powders Avon Unforgettable, Jean Nate and Chanel Number Five.
Attorneys for Whittaker claim Zimmerman likely got the disease because she lived near a factory in Bloomington, Ill. where her step father worked during the time she was growing up, a company that used asbestos in the production of insulation materials. They contended the step father could have brought asbestos fibers home with him on his clothing and in his hair.
Judge David Cunningham as well as attorneys and jurors wore masks because of the COVID-19 epidemic. Jury members sat farther apart from each other in audience seating rather than in the jury box.
During Wednesday’s hearing Emory said background levels of asbestos (in the air) register at .00005 fibers per cubic centimeter. Use of asbestos-laden cosmetic talc powder for one minute would result in 1.9 fibers per centimeter. As a result, Emory estimated that because of Zimmerman’s use of the beauty products she had inhaled 38,000 times above background levels during a one-minute period.
“My opinion is she used it (powder) five to eight minutes (per application),” Emory said “She used it for longer than the information in the studies, so there was more powder in the air.”
“Is it enough to cause mesothelioma?” Kagan asked.
“Yes,” Emory answered.
“Are these low-dose exposures?”
“No, that’s a lot of asbestos in my opinion.”
Emory said she gets paid $500 per hour for her court appearances.
She was asked what caused Zimmerman’s mesothelioma.
“Her mesothelioma was caused by exposure through the use of cosmetic talc,” Emory said.
Emory added that testing conducted by scientists including Dr. William Longo a microscope researcher had found asbestos in samples of talc powder mined in Italy and North Carolina. Chinese talc tested positive in 18 out of 18 samples.
Two containers of beauty powder taken from Zimmerman were also found to contain asbestos, Emory testified. The products contained no warning about possible asbestos contamination.
Zimmerman in a questionnaire filled out at the time of medical treatment did not identify cosmetic talc as the source of her illness, but did list the asbestos factory in Illinois as a suspected cause of exposure. Emory was asked if Zimmerman would have been expected to list cosmetic talc on the questionaire as a possible cause.
“No," Emory said. “It wasn’t public knowledge. It wasn’t on the bottle (product warning). She wouldn’t have known; she wasn’t a scientist. She was a consumer.”
Viiu S. Khare the attorney for Whittaker objected, calling such information “speculative.”
“Overruled!” Cunningham called.
“I don’t know how a consumer would know,” Emory added.
Emory said tremolite and anthophyllite asbestos found in Zimmerman’s lymph nodes had come from the use of cosmetic talc.
She agreed that Zimmerman’s living near an asbestos factory in Illinois years ago could be a contributing factor to her developing mesothelioma, but indicated that asbestos-contaminated cosmetic talc was the main culprit. Emory also agreed that Zimmerman's sons had worked on cars in their garage installing auto brakes. Some brakes contain asbestos.
Under cross examination Khare questioned Emory’s professional qualifications.
“You are not a thoracic surgeon (chest)?” she asked.
“Correct,” Emory said.
“You’re not a treating physican?”
“Correct.”
“You have not spoken with family members (Zimmerman’s)?”
“True.”
Emory also agreed she had not written a textbook on talc.
Khare referred to the questionnaire where Zimmerman listed the Illinois factory near her former home as a suspected point of exposure.
“Her step father worked there (factory),” Khare said.
“He did,” Emory agreed.
“You have not seen an attribution in the medical records to cosmetic talc?”
“That is correct,” Emory said.
Emory added that Zimmerman was seldom in close proximity to her step father, who would come home from work through a basement.
“She wasn’t around him," Emory said. "I could not see that through him (step father) she was directly exposed."
Khare called to strike the comment off the court transcript. Cunningham agreed.
“You agree that if someone is around asbestos and gets it on their hair and clothing, they can bring it home?” Khare asked.
“Yes,” Emory said.
Emory disputed a statement from Khare that a majority of mesothelioma sufferers were exposed to asbestos because of their work in industry jobs.
“Not all talc has been found to have asbestos in it,” Khare said.
“That is correct,” Emory responded.