254 A.3d 691
N.J. Super. Ct. App. Div.2021Background:
- Plaintiffs Stephen and Kendra Lanzo sued J&J/Johnson & Johnson Consumer Inc. (JJCI), Imerys (successor to talc suppliers), and others, claiming Mr. Lanzo contracted mesothelioma from long-term use of Johnson’s Baby Powder and Shower to Shower talc products.
- Pretrial rulings dismissed many common-law claims; PLA (Products Liability Act) design-defect and failure-to-warn claims proceeded against J&J/JJCI and Imerys; several defendants were later dismissed leaving JJCI and Imerys at trial.
- Plaintiffs’ experts (Longo, Webber, Moline) testified that asbestos (including amphibole fibers) was present in vintage talc samples and that non‑asbestiform cleavage fragments can cause mesothelioma; defense experts disputed those methodologies and findings.
- Trial court denied defendants’ motions to exclude Webber and Moline, denied severance, and—after finding Imerys failed to produce/preserved historic talc samples—gave the jury an adverse‑inference instruction against Imerys for spoliation.
- Jury verdict: plaintiffs awarded $37 million in compensatory damages (70% JJCI / 30% Imerys) and $80 million in punitive damages ($55M against JJCI; $25M against Imerys), total $117M; judges denied post‑trial relief; appeals followed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of experts’ opinion that non‑asbestiform cleavage fragments can cause mesothelioma | Webber/Moline: public‑health definitions support treating cleavage fragments like asbestiform fibers; authoritative agency pronouncements and some literature back the view | JJCI/Imerys: opinion is untested, not peer‑reviewed/supportive, contradicts scientific consensus and agency determinations; trial court failed gatekeeping under Accutane/Daubert | Court of Appeals: trial court abused discretion by admitting Webber and Moline without required methodology/data gatekeeping; exclusion error requires new trials. |
| Harmless‑error as to expert admission | Plaintiffs: jury verdict on exposure/causation shows error was harmless | Defendants: the experts’ untested opinions could have led jury to ignore asbestiform/non‑asbestiform distinction, critically affecting exposure/causation findings | Held: error was not harmless—experts’ testimony, Longo’s sample evidence, and plaintiffs’ arguments could have led to unjust result; reversal/remand required. |
| Imerys spoliation and adverse‑inference instruction | Plaintiffs: Imerys failed to disclose/preserve historic talc samples and TEM grids; sanction and adverse inference appropriate | Imerys: no duty to preserve samples; destruction was not intentional or reckless; instruction prejudicial/overbroad | Held: adverse‑inference instruction was justified—Imerys had duty to preserve relevant samples, plaintiffs were prejudiced; instruction upheld. |
| Severance after adverse‑inference charge | Plaintiffs: (opposed) single trial appropriate; evidence relevant to Imerys only | JJCI: instruction unfairly prejudiced JJCI because Imerys supplied most talc to JJCI; severance required to avoid spillover prejudice | Held: trial court erred by refusing severance—adverse inference as to Imerys was likely to (and did) prejudice JJCI; separate trials required. |
Key Cases Cited
- In re Accutane Litig., 234 N.J. 340 (N.J. 2018) (clarifies New Jersey gatekeeping for scientific expert testimony and adopts Daubert‑style factors)
- Daubert v. Merrell Dow Pharms., 509 U.S. 579 (U.S. 1993) (framework for assessing reliability of expert scientific testimony)
- Rubanick v. Witco Chem. Corp., 125 N.J. 421 (N.J. 1991) (expert opinion admissible when based on sound, reasonably relied‑upon scientific methodology)
- Rosenblit v. Zimmerman, 166 N.J. 391 (N.J. 2001) (spoliation doctrine and adverse‑inference remedy to level the playing field)
- Robertet Flavors, Inc. v. Tri‑Form Const., Inc., 203 N.J. 252 (N.J. 2010) (factors for sanctioning spoliation: make‑whole, punishment, deterrence; consider spoliator’s fault and prejudice)
- Jerista v. Murray, 185 N.J. 175 (N.J. 2005) (adverse‑inference instruction when spoliation is shown; recklessness standard discussed for certain instructions)
- Williams v. BASF Catalysts LLC, 765 F.3d 306 (3d Cir. 2014) (talc/asbestos context: defendants had duty to preserve evidence where asbestos litigation was actual or probable)
- Aetna Life & Cas. Co. v. Imet Mason Contractors, 309 N.J. Super. 358 (App. Div. 1998) (duty to preserve arises when litigation is pending or likely; relevance of destroyed evidence assessed)