Dan Siegal reporting for Law 360.
A 61-year-old woman who says asbestos in talcum powder products made by Johnson & Johnson and Colgate-Palmolive caused her mesothelioma gave tearful testimony Monday to a California jury about her decades of talc use and the pain caused by her terminal cancer.
At the beginning of the third week of trial in Alameda County Superior Court, Patricia Schmitz told the Oakland jury about the multiple rounds of chemotherapy and immunotherapy she underwent to treat the mesothelioma, a cancer of the cells lining certain organs, in her case the lungs and heart.
Schmitz described the different treatments she underwent since starting last August, saying it seemed as though every side effect that could happen was going to happen to her.
Schmitz said she is undergoing another round of chemotherapy and that it has left her weak and unable to place her grandchildren on her lap or play with them the same way she once could.
“I’ve always been a very strong woman, so I’m constantly surprised what I can’t do from one day to the next,” Schmitz said.
Wiping away tears, Schmitz added that she has been told that mesothelioma is incurable, and “on the average people don’t live very long with this disease.” When Satterley asked if she would keep fighting, she said she was going to try her best.
“I’m going to give it my best shot. Until last week I would have said, oh, absolutely,” she said. “Last week was the first time where … I said, it’s just going to be easier to die. But three days later I said I didn’t mean it anymore, so I’m going to keep fighting.”
Earlier in her testimony, the lifelong Alameda, California, resident told the jury about her family and background before describing her use of talcum powder products, saying it started in childhood when she would use J&J’s baby powder on her younger siblings.
Schmitz said that once she got older, she didn’t want to use a “baby” product, and so at around 13 years old she started buying and using Colgate-Palmolive’s scented talc product Cashmere Bouquet. Schmitz said she used the product after she bathed for decades, stopping when she was around 50 years old.
Schmitz said that if there had been warnings on the talc products saying that breathing in the powder could increase her risk of cancer, she would not have used them.
The defendants did not cross-examine Schmitz, and after she concluded, the jury saw videotaped deposition testimony from former J&J market research employee Michael Roslowsky.
During opening statements on April 23, the jury was told that Schmitz will likely not live past this summer and that what will kill her is a “needless cancer, easily preventable.”
Schmitz wouldn’t have been exposed to the asbestos in her talc products but for a yearslong campaign by J&J to “keep the public from knowing there was asbestos in talc and in baby powder,” Her attorney said.
Alexander Calfo of King & Spalding LLP, representing J&J, told the jury during his opening that in the same way that not every person with lung cancer smoked cigarettes, not every case of mesothelioma is caused by asbestos. Schmitz had no medical “asbestos markers,” such as pleural plaques or the scarring called asbestosis, Calfo said.
On the second day of opening statements, Gary Sharp of Foley & Mansfield, representing Colgate-Palmolive, told the Oakland jury that Colgate-Palmolive never sourced its talc from mines in Vermont — where J&J got its talc for decades — and said that the mines in Italy and Montana it did use had been tested and were found to contain pure talc, with no asbestos.
Sharp noted that Colgate-Palmolive stopped producing Cashmere Bouquet itself in 1985, outsourcing its production to other companies, and in 1995 it sold the brand altogether.