Johnson & Johnson knew for decades that the talc used to make its best-selling baby powder was contaminated with cancer-causing asbestos, a Houston-based doctor told jurors during the first week of testimony in a trial brought against the company by a 77-year-old man dying of mesothelioma.
Dr. Steven Haber, a pulmonologist and internal medicine doctor, is the only witness so far to take the stand in the case of Jerry B. Newtown and Patsy Newton v. Johnson & Johnson et el. The case, before 68th District Judge Martin Hoffman, is expected to last the rest of the month.
This is the first talc case to go to trial in Texas, plaintiff’s lawyers said and it’s the first J&J baby powder trial in the state. J&J is facing thousands of lawsuits from plaintiffs who allege their cancers were caused by the company’s talc-based baby powder. The company has denied its baby powder ever contained asbestos.
J&J has long argued that plaintiff lawyers “cherry-pick” quotes from internal documents to support their claims. The company has published documents the lawyers cite, pointed out Gibson, Dunn & Crutcher’s Collin Cox, who is representing J&J.
Haber, a plaintiff witness, testified for about 14 hours over Thursday and Friday. His testimony included a review of internal Johnson & Johnson documents that indicated tests on their talc confirmed the presence of asbestos, while externally the company told government regulators its talc was free of asbestos.
“And doctors like myself, we were kept in the dark,” Haber said under questioning by plaintiff’s lawyer Sam Iola of Dean Omar Branham Shirley.
J&J also purposefully relied on testing methods that didn’t detect asbestos, Haber said, when more sophisticated testing was available.
“Not finding it by a weaker test does not mean that it’s absent,” Haber said.
In 2022, J&J announced it was discontinuing talc-based baby powder and would use cornstarch instead. The company said the switch was “to help simplify our product offerings, deliver sustainable innovation, and meet the needs of our consumers, customers and evolving global trends.”
“Our position on the safety of our cosmetic talc remains unchanged,” the company said in 2022. “We stand firmly behind the decades of independent scientific analysis by medical experts around the world that confirms talc-based JOHNSON’S® Baby Powder is safe, does not contain asbestos, and does not cause cancer.”
Newton was diagnosed with mesothelioma in 2019. He said his only asbestos exposure was J&J’s baby powder, which he used since he was a teenager until about the year 2000.
Haber, who is not treating Newton, offered his opinion that J&J’s baby powder caused the mesothelioma.
“I reviewed his medical care … his mesothelioma was caused by his cumulative exposures to asbestos, that asbestos in Johnson & Johnson’s talc was a significant cause of his mesothelioma,” Haber said, and added that J&J’s talc was also the singular cause of Newton’s mesothelioma.
Cox argued in multiple objections that portions of Haber’s testimony opining on J&J’s documents were improper. Haber was offered as an expert in pulmonology internal medicine and the causation of asbestos-related diseases.
“His job is a lung specialist,” Cox said in one objection. “He is now being asked, ‘What did Johnson & Johnson think?’ That is not proper expert testimony.”
The judge instructed Iola to lay the foundation and allowed Haber’s testimony to continue.
In cross-examination, Cox challenged Haber’s testimony and reports he relied on, including one by the late Seymour Lewin, a chemist at New York University. Lewin, after being commissioned by the Food and Drug Administration, found asbestos in more than half of 11 baby powder samples. However, he later wrote a letter to the editor of The Wall Street Journal stating that he had found no evidence of asbestos in nine of the samples and that the other two were inconclusive.
Under direct examination, Haber tried to dispel an assumption that miners and millers have worse exposure than consumers or “end users.” Many studies, he said, show that the people who use the end product were at higher risk of contracting mesothelioma and other cancers because miners and millers are protected by masks and other industrial hygiene measures. Further, many of the study’s subjects were young, healthy men, Haber said.
Cox pointed to a study that followed miners and millers up to 40 years after their work and found no evidence of mesothelioma.
Haber countered that the latency period in the study wasn’t long enough. Mesothelioma can take as much as 60 years after exposure to develop, he said.
Law firm King & Spalding is also representing J&J.
The Dallas case is DC-19-09317, Jerry B. Newton and Patsy Newton v. Johnson & Johnson et el.