|The powder and the poison|
by Lisa Girion||16 Dec 2018|
|Edition Changes - Page 22 - 1886 words - ID 1052113512 - Photo: Yes - Type: International - Size: 984.00cm2|
Johnson & Johnson is accused of knowing asbestos lurked in its Baby Powder. Lisa Girion reports.
Darlene Coker knew she was dying.
She just wanted to know why.
She knew that her cancer, mesothelioma, arose in the delicate membrane surrounding her lungs and other organs. She knew it was as rare as it was deadly, a signature of exposure to asbestos. And she knew it afflicted mostly men who inhaled asbestos dust in mines and industries that used the carcinogen before its risks were understood.
Coker, 52, had raised two daughters and was running a massage school in Lumberton, Texas. How had she been exposed to asbestos? "She wanted answers," her daughter, Cady Evans, said.
Fighting for every breath and in crippling pain, Coker hired Herschel Hobson, a personal-injury lawyer.
He homed in on a suspect: the Johnson's Baby Powder that Coker had used on her infant children and sprinkled on herself all her life.
Hobson knew that mined talc could be contaminated with asbestos. Coker sued Johnson & Johnson, alleging that "poisonous talc" in the company's beloved product was her killer.
J&J denied the claim. Its baby powder was asbestos-free, it said. As the case proceeded, J&J was able to avoid handing over talc test results and other internal company records Hobson had requested to make the case against Baby Powder.
Coker had no choice but to drop her lawsuit. "When you are the plaintiff, you have the burden of proof," he said. "We didn't have it."
That was in 1999. Two decades later, the material Coker and her lawyer sought is emerging as J&J has been compelled to share thousands of pages of company memos, internal reports and other confidential documents with lawyers for some of the 11,700 plaintiffs now claiming that the talc caused their cancers - including thousands of women with ovarian cancer.
A Reuters examination of many of those documents, as well as deposition and trial testimony, shows that from at least 1971 to the early 2000s, the company's raw talc and finished powders sometimes tested positive for small amounts of asbestos, and that company executives, mine managers, scientists, doctors and lawyers fretted over the problem and how to address it while failing to disclose it to regulators or the public.
The documents also depict successful efforts to influence US regulators' plans to limit asbestos in cosmetic talc products and scientific research on the health effects of talc.
Much of the content is reported here for the first time.
The earliest mentions of tainted J&J talc that Reuters found come from 1957 and 1958 reports by a consulting lab. They describe contaminants in talc from J&J's Italian supplier as fibrous and "acicular", or needle-like, tremolite.
That's one of the six minerals that in their naturally occurring fibrous form are classified as asbestos.
At various times from then into the early 2000s, reports by scientists at J&J, outside labs and J&J's supplier yielded similar findings.
The reports identify contaminants in talc and finished powder products as asbestos or describe them in terms typically applied to asbestos.
In 1976, as the US Food and Drug Administration was weighing limits on asbestos in cosmetic talc products, J&J assured the regulator that no asbestos was "detected in any sample" of talc between December 1972 and October 1973. It did not tell the agency that at least three tests by three labs had found asbestos in its talc - in one case at "rather high" levels.
Most internal J&J asbestos test reports Reuters reviewed do not find asbestos. However, while J&J's testing methods improved over time, they have always had limitations that allow trace contaminants to go undetected - and only a tiny fraction of the company's talc is tested.
The World Health Organisation and other authorities recognise no safe level of exposure to asbestos.
While most people exposed never develop cancer, for some, even small amounts of asbestos are enough to trigger the disease years later.
Many plaintiffs allege that the amounts they inhaled when they dusted themselves with tainted talcum powder were enough.
The evidence of what J&J knew has surfaced after people who suspected that talc caused their cancers hired lawyers experienced in litigation involving workers exposed to asbestos. Some of the lawyers knew that talc producers tested for asbestos, and they began demanding J&J's testing documentation. What J&J produced has allowed lawyers to refine their argument: The culprit wasn't necessarily talc itself, but also asbestos in the talc. In two cases earlier this year - in New Jersey and California - juries awarded big sums to plaintiffs who, like Coker, blamed asbestos-tainted J&J talc products for their mesothelioma. A third verdict, in St Louis, was a watershed, broadening J&J's potential liability. The 22 plaintiffs were the first to succeed with a claim that asbestos-tainted Johnson's Baby Powder and Shower to Shower talc, a brand the company sold in 2012, caused ovarian cancer, which is more common than mesothelioma.
The jury awarded them $US4.69 billion in damages.
Most of the talc cases have been brought by women with ovarian cancer who say they regularly used J&J talc products as a perineal antiperspirant and deodorant.
At the same time, at least three juries have rejected claims that Johnson's Baby Powder was tainted with asbestos or caused plaintiffs' mesothelioma. Others have failed to reach verdicts, resulting in mistrials.
J&J has said it will appeal the recent verdicts against it. It has maintained that its talc is safe. It has blamed its losses on juror confusion, "junk" science, unfair court rules and overzealous lawyers.
"Attorneys out for personal financial gain are distorting historical documents and intentionally creating confusion," Ernie Knewitz, J&J's vice-president of global media relations, wrote in a response to Reuters' findings.
"Thousands of independent tests prove our talc does not contain asbestos or cause cancer."
J&J declined to comment further.
Asbestos, like many environmental carcinogens, has a long latency period. Diagnosis usually comes years after initial exposure - 20 years or longer for mesothelioma. J&J talc products today may be safe, but the talc at issue in thousands of lawsuits was sold and used over the past 60 years.
In 1886, Robert Wood Johnson enlisted his younger brothers in an eponymous start-up. Johnson's Baby Powder grew out of a line of home remedies. Soon, mothers began applying their talc to infants' diaper-chafed skin. The Johnsons added a fragrance that would become one of the most recognisable in the world, sifted the talc into tin boxes and, in 1893, began selling it as Johnson's Baby Powder.
In the late 1950s, J&J discovered that talc from its chief source mine for the US market in the Italian Alps contained tremolite. That's one of six minerals that occur in nature as crystalline fibres known as asbestos.
Some of them, including tremolite, also occur as unremarkable "nonasbestiform" rocks. Both forms often occur together and in talc deposits. J&J's worry at the time was that contaminants made the company's powder abrasive. In terms of health risk, regulators since the early 1970s have treated small fibre-shaped particles of both forms the same.
In 1964, J&J's Windsor MineralsInc subsidiary bought a cluster of talc mines in Vermont. In 1967, J&J found traces of tremolite and another mineral that can occur as asbestos in the Vermont talc, according to a table attached to a November 1, 1967, memo by William Ashton, the executive in charge of J&J's talc supply for decades.
J&J continued to search for sources of clean talc. But in an April 1969 memo to a company doctor, Ashton said it was "normal" to find tremolite in many US talc deposits.
He suggested J&J rethink its approach. "How bad is tremolite medically, and how much of it can safely be in a talc base we might develop?" Ashton wrote.
Since pulmonary disease, including cancer, appeared to be on the rise, "it would seem to be prudent to limit any possible content of tremolite ... to an absolute minimum", came the reply from another physician executive.
The doctor told Ashton that J&J was receiving safety questions from paediatricians. Even Robert Wood Johnson II, the founder's son, had expressed "concern over the possibility of the adverse effects on the lungs of babies or mothers".
"We have replied," the doctor wrote, that "we would not regard the usage of our powders as presenting any hazard." Such assurances would be impossible, he added, "if we do include tremolite in more than unavoidable trace amounts".
The memo is the earliest J&J document reviewed by Reuters that discusses tremolite as more than a itchy nuisance. The doctor urged Ashton to consult with company lawyers because "it is not inconceivable that we could become involved in litigation".
Before law school, Herschel Hobson worked at a rubber plant.
There, his job included ensuring that asbestos in talc the workers were exposed to didn't exceed OSHA limits. That's why he zeroed in on Johnson's Baby Powder after he took on Darlene Coker as a client in 1997. The lawsuit Coker and her husband filed that year against J&J in Beaumont, Texas, is the earliest Reuters found alleging Johnson's Baby Powder caused cancer.
Hobson asked J&J for any related research, records and documents.
J&J objected. Hobson's "fishing expedition" would not turn up any relevant evidence, it asserted. In fact, among the thousands of documents Hobson's request could have turned up was a letter J&J lawyers had received only weeks earlier from a geologist confirming that she had found asbestos in the company's baby powder, identified in her 1991 published study as tremolite "asbestos" needles.
Hobson agreed to postpone his discovery demands until he got the pathology report on Coker's lungs.
Before then, J&J asked the judge to dismiss the case, arguing that Coker had "no evidence" the baby powder caused mesothelioma. Ten days later, the pathology report landed: Coker's lung tissue contained tens of thousands of "long fibres" of four types of asbestos "consistent with exposure to talc containing chrysotile and tremolite contamination".
The judge turned down Hobson's request to resume discovery.
Without evidence from J&J, Hobson advised Coker to drop the suit.
Hobson is still practising law.
When Reuters told him about the evidence that had emerged, he said: "They knew what the problems were, and they hid it." J&J's records would have made a "100 per cent difference" in Coker's case. "Maybe there would have been 20 years' less exposure" for other people.
Bicks, the J&J lawyer, said Coker dropped her case because "the discovery established that J&J talc had nothing to do with plaintiff's disease".
Coker never learned why she had mesothelioma. She did beat the odds, though. Most patients die within a year of diagnosis. Coker held on long enough to see her two grandchildren. She died in 2009, 12 years after her diagnosis, at 63.
Coker's daughter, Crystal Deckard, was five when her sister, Cady, was born in 1971. Deckard remembers seeing the white bottle of Johnson's Baby Powder on the changing table.
"When Mom was given this death sentence, she was the same age as I am right now," Deckard said. "I have it in the back of my mind all the time.
Could it happen to us? Me? My sister?" Reuters Most of the talc cases have been brought by women with ovarian cancer who say they regularly used J&J talc products.
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