A small group of highly paid experts, one of whom recently testified his firm has made $30 million offering mostly pro-plaintiff testimony, are the key ingredient for more than 10,000 lawsuits claiming talcum powder is laced with deadly asbestos, forming the tip of an inverted pyramid upon which the rest of the cases depend.
Without these experts, as a plaintiff in Philadelphia learned earlier this month, the lawsuits tend to collapse.
On Feb. 7 Philadelphia Court of Common Pleas Judge Kenneth Powell dismissed a lawsuit by the late Sally Brandt against Colgate-Palmolive after he excluded the opinions of three experts who contend Colgate’s Cashmere Bouquet talcum powder contains breathable asbestos fibers.
Without those experts – including a New York scientist who once entered the witness protection program after allegedly getting involved in money laundering for the mob – plaintiffs can’t make the necessary connection between talcum powder and their disease.
A trial in California shows what happens when judges let those experts in. Now in its seventh week, Leavitt v. Johnson & Johnson has featured some of the same witnesses and evidence other courts have rejected, including tests on talc from decades-old bottles that lawyers purchased on eBay.
Plaintiff Terry Leavitt’s experts have testified not only that Johnson & Johnson’s Baby Powder contains asbestos, but that it is the only plausible cause of her mesothelioma, despite the fact Leavitt grew up near at least two asbestos factories and like everyone else has been exposed to ambient asbestos throughout her life.
Johnson & Johnson’s lawyers have challenged every element of Leavitt’s case and adamantly deny that Johnson’s Baby Powder contains asbestos. But given the decades-long incubation period for developing cancer, hazy memories and conflicting documents from the 1970s and 1980s, talc cases are tough to defend.
If judges allow in evidence that talcum powder at some point contained asbestos, plaintiffs can then put on experts who say that same asbestos is the cause of their illness. Since there is no known safe level of exposure to asbestos, plaintiff experts are free to say any exposure at all can cause disease, even though numerous studies have shown people breathe in a significant amount of asbestos every day and don’t contract cancer from it.
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