A four-day trial that saw a woman suing talc powder supplier Whittaker, Clarke & Daniels for the beauty powder she claimed had asbestos in it causing her to develop mesothelioma settled on April 26 for an undisclosed amount to the plaintiff.
Leah Kagan the attorney for plaintiff Linda Zimmerman would not divulge the amount of the settlement by email.
"Settlements are confidential," she told the Southern California Record.
Whittaker, Clarke & Daniels, based in New Jersey, supplied talc for the beauty powder products Zimmerman used for 40 years. They included Johnson & Johnson baby powder, Jean Nate, Chanel Number Five and Avon Unforgettable. Zimmerman contended asbestos in the talc powder caused her to develop mesothelioma, a fatal cancer of the linings of the lungs.
Zimmerman allegedly breathed the asbestos fibers using the products causing her mesothelioma. However, defense attorney Viiu S. Khare contended the woman contracted the disease because she lived as a young girl near a factory using asbestos to make insulation products in Illinois.
Asbestos has a latency period. It can take 40 years after exposure for symptoms to develop.
Zimmerman’s condition is terminal. She has a life expectancy of perhaps 15 months, according to her attorneys.
During the four-day run of the trial Los Angeles Superior Court Judge David Cunningham as well as attorneys and jurors wore masks because of the COVID-19 pandemic. Members of the jury were seated socially distanced apart from each other in audience seats rather than in the jury box.
The trial was streamed live on Courtroom View Network.
On April 23, the last day of testimony, microscope researcher William Longo of the Georgia-based Materials Analytical Services (MAS) lab, appeared as a witness for Zimmerman He told the jury the talc powder Zimmerman used as a beauty aid contained asbestos.
Longo has been a frequent witness for plaintiffs in past talc powder trials alleging asbestos contamination.
Kagan sought to refute a contention defense attorneys were expected to use, that Longo had said at one time there was no asbestos in cosmetic talc powder.
In 2002, Longo reportedly said asbestos in talc was an “urban legend.”
“I was dead wrong,” Longo said on the stand. “At the time that was my opinion. I would say today, it’s an urban legend there is no asbestos in cosmetic talc.”
Longo indicated testing methods and information available 20 years ago were not as good in spotting smaller concentrations of asbestos. He added that a scientist has to be willing to change an opinion based on new evidence and developing technology.
Longo said asbestos is a magnesium silicate mineral with six related minerals including the two most commonly found in cosmetic talc powder, tremolite and anthrophylite asbestos. Fibers are long and thin, Longo said. They come in single fibers, bundles and clusters.
Kagan sought to neutralize a statement by Khare during opening arguments that the defense would produce a biologist on the witness stand to testify, whereas the plaintiff attorney would not.
“Do you have to consult a biologist (to determine asbestos in powder)?” Kagan asked Longo.
“No,” Longo said.
Longo said spotting asbestos by high-powered microscope involved studying a mineral’s chemical makeup and crystal structure. He said the method of testing for asbestos contamination in talc powder employed by Whittaker called X-ray diffraction or XRD, was not sensitive enough to spot smaller amounts of asbestos.
“It (XRD) is not good enough for cosmetic talc,” Longo said.
Longo said XRD can’t tell you if a substance is fibrous like a high-power microscope can, for example the transmission electron microscope (TEM).
In the early 1970s, officials of the Food and Drug Administration (FDA) hinted they might attempt to regulate the testing of talc powder.
“What happened?” Kagan asked.
“They (powder suppliers) came up with another proposal,” Longo said. “They would self-regulate using XRD, and submit the (testing) results to the FDA.”
The FDA does not regulate talc powder to this day.
Kagan produced an inter-company document from Whittaker in 1973 to company officials. The note warned the FDA might attempt to regulate cosmetic talc and advised company officials to avoid answering questions from customers asking if the talc was free of asbestos.
Longo said asbestos had been found in talc mines in Italy, Vermont, North Carolina and China.
He said his MAS lab had been audited by agencies including the Environmental Protection Agency (EPA), the International Standards Organization (ISO) and the FDA. They had found no major errors in the lab’s testing, he said.
Kagan exhibited a graphic showing that Whittaker from 1975 through 2003 supplied 5 million pounds of Italian, Australian and Chinese talc for Chanel Number Five, 8.85 million pounds for Jean Nate (1975-1981), and 3.4 million pounds for Avon (1975-1978).