Thought Leadership

In April 2018, a Middlesex County jury returned a verdict against Johnson & Johnson Consumer, Inc. and Imerys Talc America, Inc., finding that the plaintiff, Stephen Lanzo, was exposed to asbestos from Johnson’s baby powder and Shower to Shower powder and that this exposure caused his mesothelioma. The jury awarded $30 million in compensatory damages to Stephen Lanzo, $7 million to Kendra Lanzo for loss of consortium, and subsequently entered punitive damages awards of $55 million against Johnson & Johnson and $25 million against Imerys, for a total verdict of $117 million.

Both defendants appealed, arguing that the trial judge erred by admitting unreliable expert testimony. Johnson & Johnson also appealed the trial court’s denial of their motion to sever the plaintiffs’ claims against them from the claims against Imerys based on an adverse inference jury charge against Imerys. The Appellate Division agreed with the defendants, reversing the trial court judgment and remanding the matter to the Law Division for a new trial. On the adverse inference issue, the Appellate Division held that the new trials should be conducted separately in order to avoid any potential prejudice to Johnson & Johnson caused by the adverse inference charge against Imerys.

Expert – Gatekeeper Role

Both defendants challenged the expert opinions expressed by two of the plaintiffs’ expert witnesses, Dr. Jacqueline Moline and Dr. James Webber, that non-asbestiform cleavage fragments from certain minerals could cause mesothelioma. The trial judge denied the defendants’ request for a Rule 104 hearing. The defendants contended that by permitting these experts to testify, the trial judge misapplied the well-established gatekeeping procedures required to be handled by the trial court and as required by In re Accutane Litigation (Accutane), 234 N.J. 340, 388 (2018). The Appellate Division noted that the Supreme Court decision in Accutane essentially reconciled New Jersey Rules of Evidence with the longstanding Federal evidence standard expressed in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

An expert’s opinion on causation may be admitted when it is “based on sound, adequately founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field.” Accutane, at 349-350. The trial court is required to assess the soundness of the preferred methodology and the underlying data used to formulate the opinion in evaluating the qualifications of the expert and the conclusions. When a proponent fails to demonstrate “the soundness of a methodology, both in terms of its approach to reasoning and to its use of data, from the perspective of others within the relevant scientific community, the gatekeeper should exclude the proposed expert testimony on the basis that it is unreliable.” Lanzo v. Johnson & Johnson, (slip op. p. 34-35).

Here, both Drs. Moline and Webber testified that non-asbestiform cleavage fragments can cause mesothelioma. The trial judge only noted that “the issue of cleavage fragments was an area that’s highly contested between plaintiff’s experts and defense experts,” but the judge did not evaluate the issues in context. Lanzo, (slip op. p. 41). The trial judge also denied the defendants’ motion for a Rule 104 hearing on the experts’ opinions on this issue.

The Appellate Division found that the trial court did not assess the methodology or the underlying data used by these experts, noting that Dr. Webber had not conducted any studies and was not aware of any studies showing that non-asbestiform cleavage fragments could cause mesothelioma. Dr. Moline had previously testified that non-asbestiform cleavage fragments could not cause mesothelioma. At trial in this case, she testified that she had changed her opinion on this issue over time. However, she did not express any scientific basis for the change in her opinion.

The Appellate Division determined that the trial judge did not perform the required gatekeeping function by failing to evaluate the methodology or the data and information that formed the basis for the expert conclusions put forth by Drs. Webber and Moline. The Appellate Division also determined that those errors were clearly capable of producing an unjust result, which required a new trial.

Adverse Inference

In their discovery responses, Imerys certified that it did not have and was not aware of any historical talc samples or testing documents. At trial, however, Imerys’ representative confirmed that Imerys had, at one time, been in possession of historical talc samples and testing documents, but they had discarded the talc samples and documents.

The trial court determined that discarding these items was not intentional, however, recognized that spoliation does not require intent. The court noted that the purpose of an adverse inference charge is to level the playing field where evidence has been hidden or destroyed. To accomplish this levelling, the trial court included a jury charge that stated, “You may infer that the missing evidence may have been helpful to the plaintiffs’ case to the detriment of defendant Imerys.” The trial court also specifically charged that Johnson & Johnson was not involved in the spoliation conduct and that the adverse inference should not be drawn as to any other defendant in the case.

The Appellate Division noted that New Jersey court rules permit separate trials in order to prevent prejudice. R. 4:29-2 & R. 4:38-2(a). Severance may be appropriate “where a significant portion of the evidence to be adduced at trial is admissible only as to one defendant thereby causing prejudice to other defendants.” State v. Mance, 300 N.J. Super. 37, 53 (App. Div. 1997).

The Appellate Division found that, once the jury was permitted to draw an adverse inference that Imerys’ talc was contaminated with asbestos, it would likely be impossible for the jury to make a different finding as to Johnson & Johnson. The Appellate Division held that the trial court erred in failing to sever the claims against Imerys from the claims against Johnson & Johnson and remanded the matter to the trial court for separate trials against each defendant.

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