New Jersey Talc Verdicts Overturned On Appeal For Daubert-Less Expert Opinions

Husch Blackwell LLP

A New Jersey appeals court recently overturned talc verdicts totaling $117 million in damages against Johnson & Johnson Consumer Inc. (JJCI) and Imerys Talc America, Inc. (Imerys) after finding expert testimony was Daubert-less, thus improper and warranted new trials.

The Case

On December 23, 2016, Plaintiffs Stephen Lanzo III and his wife filed a complaint against multiple defendants, including JJCI and Imerys, claiming that Mr. Lanzo was exposed to asbestos and contracted mesothelioma from his long-term use of Johnson & Johnson’s talcum powder products.

At trial, JJCI and Imerys filed a motion to preclude plaintiffs’ experts, James S. Webber, Ph.D. and Jacqueline Moline, M.D. from testifying that non-asbestiform cleavage fragments of certain minerals can cause mesothelioma. Superior Court Judge Ana C. Viscomi denied the motion for Webber and limited the scope of Moline’s testimony, but allowed her to testify regarding “non-asbestiform cleavage fragments from a medical point of view.”

The jury returned a verdict against JJCI and Imerys finding that Mr. Lanzo’s exposure to asbestos from the talcum powder products was a substantial factor in causing his mesothelioma. The jury awarded Mr. Lanzo $30 million in compensatory damages for his disability, impairment, loss of the enjoyment of life, and pain and suffering, and $7 million to Ms. Lanzo for the loss of Mr. Lanzo’s services, society, and consortium. The jury also awarded plaintiffs punitive damages totaling $80 million.

The Appeal

On appeal, the three-judge appellate panel held that the Daubert principles regarding expert testimony did not support admission of the expert opinions offered by Webber and Moline. Namely, the opinions and theories were not tested, not subject to peer review and publication, and were not generally accepted in the scientific community. The panel further held that the trial court did not perform “its required gatekeeping function” by failing to conduct a proper analysis to determine whether the expert opinions met the Daubert standards and failing to assess the methodology or the underlying data used by the two experts to form their opinions.  Instead, the trial court merely stated “[t]he issue of cleavage fragments [was] an area that’s highly contested between plaintiff[s’] experts and defense expert” and “the definition of asbestos, the asbestiform versus the non-asbestiform habit” was “one of the central issues in these talc cases . . . .”

The appellate panel concluded that the trial court mistakenly exercised its discretion by erroneously permitting Webber and Moline to testify concerning their untested opinion that non-asbestiform amphiboles can cause mesothelioma. The court amounted the testimony to “unverified” opinions that, if they were accepted as true by the jury, were “clearly capable of producing an unjust result”. Therefore, the panel reversed the judgment and remanded the matter for new trials for both defendants.

A Win for Defendants

The panel’s decision to overturn the multi-million talc verdicts is a huge win for defendants battling junk science in toxic tort litigation. It is also a key indicator to the plaintiffs’ bar that unsupported theories masked as “expert opinions” will no longer be tolerated or admitted in New Jersey if they do not meet the standards employed by Daubert.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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