An appellate court in New Jersey has reversed the first significant talc verdict for a plaintiff. In Stephen Lanzo, III and Kendra Lanzo v. Cyprus Amax Minerals Company, et al., MID- L-7385-16, the Appellate Division found that the Hon. Ana Viscomi failed to provide the necessary gatekeeper function by permitting testimony from plaintiffs’ experts about the ability of certain fibers to cause mesothelioma. In a detailed, 70-page decision authored by Judge Yannotti, the Appellate Division ordered the case remanded to the trial court for new and separate trials against Johnson & Johnson Consumer Inc. (“JJCI”) and Imerys Talc America, Inc. (“Imerys”). It remains to be seen when these cases will be retried given that asbestos trials are currently stayed in New Jersey due to the pandemic.

Procedural History

Plaintiffs alleged that Mr. Lanzo contracted mesothelioma from his use of Johnson Baby Powder and J&J Shower to Shower talc (both of which were manufactured by JJCI) because these products were contaminated with asbestos. Several companies that allegedly supplied talc to JJCI that was used to create these products were also sued in this case, including Imerys.

Plaintiffs offered Dr. James S. Webber, Ph.D., and Jaqueline Moline, M.D., as causation witnesses and also Dr. William Longo, Ph.D., not as a causation witness but rather as a witness in the field of “testing for asbestos.” Defendants offered Dr. Matthew Spencer Sanchez as a geologist and mineralogist.

The Appellate Division noted that Judge Viscomi denied motions filed by Imerys and JJCI to bar expert testimony from Dr. James S. Webber, Ph.D., and Jaqueline Moline, M.D., from testifying that non-asbestos cleavage fragments of certain minerals can cause mesothelioma. The Judge did, however, limit the scope of Dr. Moline’s testimony but allowed her to testify regarding “non-asbestiform cleavage fragments from a medical point of view.” [1]

Toward the end of the evidentiary portion of the trial, upon the plaintiffs’ request, the Judge provided the jury with an adverse inference instruction against Imerys as a sanction for its alleged failure to produce certain talc samples and test data in discovery and its destruction of certain talc samples. Realizing that an adverse instruction against Imerys might taint the jury against JJCI, JCCI moved to sever the claims against it from the claims against Imerys, but this motion was denied. The judge did instruct the jury the JJCI was not involved in the wrongful conduct.

The jury, finding that exposure to Johnson’s Baby Powder and/or Shower to Shower was a substantial factor in causing Mr. Lanzo’s mesothelioma, awarded him $30 million in compensatory damages and $7 million to Ms. Lanzo for loss of consortium. The jury assigned seventy percent responsibility for the compensatory damage awards to JJCI and thirty percent to Imerys. Judge Viscomi had reserved a decision on JJCI and Imerys’ motions to dismiss punitive damages (filed before trial) and promptly denied the motions. The jury awarded the plaintiffs punitive damages of $55 million against JJCI and $25 million against Imerys. The final judgment was entered on April 28, 2018, subsequent to Judge Viscomi’s denial of JJCI and Imerys’ motions for JNOV, a new trial, or remitter. This appeal of the $117 million judgment followed.

The Appellate Court’s decision focused primarily on JJCI and Imerys’ arguments that the Court erred by admitting unreliable expert testimony and erred by not allowing separate trials after ruling that it would provide the jury with an adverse inference instruction against Imerys.

The Trial Court Failed to Perform Its “Gate-Keeping” Function

The Appellate Division, following a comprehensive and illuminating discussion of the New Jersey Supreme Court’s groundbreaking In Re Accutane, 234 N.J. 340 (2018) decision, held that it was improper for the trial court to have admitted Drs. Webber and Moline’s testimony that non-asbestiform cleavage fragments could cause mesothelioma. The Appellate Division found that the trial court did not conduct a Rule 104 hearing and did not assess the methodology, or underlying data, used by the two experts in forming their opinions.

The Appellate Division applied In Re Accutane, holding that it applied retroactively (the case was decided 2 months after the Lanzo trial concluded) because In Re Accutane reinforced, and did not redefine, the New Jersey court principles regarding expert testimony and the role of the trial judge as a gatekeeper under the Daubert standard. The trial judge, as gatekeeper, has the important role of distinguishing scientifically sound reasoning from that of a self-validating expert. It must disallow an expert from expressing personal beliefs and prevent the jury from hearing “unsound science through the compelling voice of an expert.”[2] Judge Yannotti noted that the New Jersey Supreme Court envisioned that the trial court, acting as a “spigot,” is to permit novel expert testimony in areas of evolving medical causation when the expert is adhering to the norms accepted by fellow members of the scientific community, but the trial court must focus on principles and methodology, not the conclusions which are generated.[3] The New Jersey Supreme Court explained that when a proponent fails to demonstrate "the soundness of a methodology, both in terms of its approach to reasoning and 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."[4]

Dr. Webber opined that cleavage, or non-asbestiform fragments, have the same potential to cause disease as asbestiform fibers with like aerodynamic dimensions. He claimed that when an amphibole rock is cracked, three possible types of particles can break off. The first type would not have a health impact. The second type is an asbestiform particle that has the properties of commercially valuable asbestos. The third is a cleavage fragment that may be as long and thin as an asbestiform fiber but "may not have been formed under the same conditions that produced the asbestiform fiber."[5] However, Dr. Webber opined that it did not matter whether a fiber was asbestiform or non-asbestiform because "[i]f it has the right morphological characteristics and mineralogical and chemical characteristics, it has the potential to cause disease."[6]

Judge Yannotti, in holding that Dr. Webber’s testimony should have been precluded, noted that Dr. Webber testified at trial that he had not conducted, and was not aware of, any studies showing that non-asbestiform cleavage fragments can cause mesothelioma. The conclusory statement in his expert report in which he opined the same was unsupported by any authority. The Appellate Division held that the four studies to which Dr. Webber cited to at trial to support this proposition did not support his testimony and provided no basis for his contention. Moreover, Dr. Webber did not demonstrate that any of the studies he relied upon would be reasonably relied on by other experts in his field to reach the issue of causation.

Dr. Moline similarly argued that it was “generally accepted in the medical literature” that non-asbestiform amphiboles cause mesothelioma and that the 2006 EPA Region 9 Response had stated that there was no distinction between fibers and cleavage fragments with the same size, shape, and chemical composition.[7]

The Appellate Division, holding that Dr. Moline’s testimony also should have been precluded, noted that Dr. Moline generally stated that her opinion was supported by published literature and studies but did not identify this literature during her testimony. The only authority she cited, noted above, was the 2006 EPA Region 9 Response. Moreover, the defendants impeached Dr. Moline with testimony she had previously provided in which she claimed that she did not have enough information to opine whether non-asbestiform minerals were cariogenic. In response, she claimed that she had since reviewed additional studies, which has changed her opinion but could not identify these studies. Then, she admitted that she was unaware of any studies that specifically looked into that question about whether mesothelioma can be caused by non-asbestiform particles.

Judge Yannotti stressed that under In Re Accutane, the trial court’s gatekeeping role is sacrosanct and the trial judge must meaningfully assess the reasonableness of the methodology and underlying data for each expert’s opinion. However, the Appellate Division held that the trial court did not perform its role adequately.

It Was Not a Harmless Error to Permit Dr. Webber and Dr. Moline’s Testimony that Non-Asbestiform Cleavage Fragments Could Cause Mesothelioma

The next step was determining whether admitting Dr. Webber and Dr. Moline’s testimony as to non-asbestiform particles causing disease was a harmless error. The Appellate Division held that it was not harmless because the jury could have easily determined from Drs. Webber and Moline’s testimony that regardless of whether the fibers were asbestiform or non-asbestiform, these fibers could have been a substantial factor in causing mesothelioma.

Notably, the court admitted that neither Dr. Webber nor Dr. Moline opined that non-asbestiform cleavage fragments were detected in Johnson’s baby powder. Rather, it was Dr. Longo who addressed this issue. During direct examination, Dr. Longo denied that he found any cleavage fragments in the samples. However, during cross, he admitted that cleavage fragments can resemble asbestos fibers and that the method by which he analyzes fibers, TEM, cannot detect whether a single fiber is asbestiform or non-asbestiform. Thus, Longo could not distinguish between asbestiform and non-asbestiform fibers.

Dr. Sanchez, the defense expert, noted that Dr. Longo’s findings were consistent with non-asbestiform amphiboles rather than asbestiform. Most importantly, Dr. Sanchez admitted that there were non-asbestiform amphiboles present in Johnson’s baby powder.

Plaintiffs likely anticipated that JJCI and Imerys would argue that only non-asbestiform fibers would be found in the products, so counsel for the plaintiffs argued during both opening and closing statements that non-asbestiform fibers could cause asbestos-related disease. Logically, then, the jury, if it accepted Dr. Webber’s and Dr. Moline’s opinions, could certainly believe that it did not matter, in terms of the ability to cause disease, whether the structures Longo found in the talc samples were asbestiform or non-asbestiform. Judge Yannotti found it “most concerning” because Sanchez admitted that there were non-asbestiform amphiboles in some Johnson Baby Powder samples.[8]

The Court Should Have Severed the Trials

Although the Appellate Division agreed with the Court’s decision to apply an adverse inference jury instruction against Imerys for spoliation of evidence, the Appellate Division held that it was improper for the trial court to have denied JJCI’s motion to sever the trials. The court agreed with JJCI, that once the jury was permitted to draw an adverse inference that Imerys’ talc was contaminated with asbestos, it would be “difficult, if not impossible” for the jury not to make the same finding as to JJCI, despite the trial’s courts warning to the jury that JJCI was not also subject to the adverse instruction.[9] The Appellate Division, therefore, ordered the case remanded for separate trials.

Conclusion

Plaintiffs were hoisted by their own petard. By relying in their opening and closing arguments on their experts’ testimony that non-asbestos cleavage fragments could cause mesothelioma, they could not logically argue that it was a harmless error to permit this testimony given that the jury could easily conclude that “asbestos” on the verdict sheet could refer to both non-asbestiform and asbestiform minerals.

This groundbreaking decision will certainly impact talc trials going forward. The Appellate Division has made it unequivocally clear that the standards the New Jersey Supreme Court elucidated in the In Re Accutane decision apply to asbestos trials and that trial courts should take their role as gatekeepers seriously. The Appellate Division has effectively noted that a trial judge must evaluate each expert and each aspect of his or her testimony to ensure that the expert’s opinion is properly supported.

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