New Evidence Leads to Vacated Final Judgment in Favor of Fertilizer Company Superior Court of New Jersey, Appellate Division, February 26, 2018

NEW JERSEY — In an unpublished opinion issued by the New Jersey Superior Court, Appellate Division, the plaintiff successfully overturned the entry of summary judgment on the basis of discovery of new evidence. The plaintiff filed suit in 2012, alleging that his application of two bags of Scotts Turf Builder fertilizer twice a year, from 1967 to 1980, caused him to develop mesothelioma. He passed shortly after filing the lawsuit and his wife was substituted as executrix of the estate. The plaintiff alleged that Scotts Turf Builder was manufactured from vermiculite ore, and that from 1966 until 1980, two-thirds of that ore was mined in Libby, Montana. The parties did not dispute that the vermiculite ore mined in Libby contained amphibole asbestos. During discovery, Scotts responded that it did not possess any samples of fertilizer which contained vermiculite sourced from Libby.

Scotts subsequently filed motions in limine to bar the plaintiff’s experts as well as a motion for summary judgment. The motions in limine were granted because the plaintiff’s experts opinions were based on documents pertaining to W.R. Grace’s vermiculite insulation mined in Libby, not Scott’s fertilizer. The motion for summary judgment was granted under the Sholtis standard, finding that the lack of expert opinion regarding the release of asbestos fibers during application meant that there was no evidence that the plaintiff’s decedent was exposed to asbestos on a regular and frequent basis when he applied Scotts Turf Builder to his lawn. Orders granting the motions in limine and motion for summary judgment were granted on January 10, 2014. Due to the subsequent consolidation of all asbestos cases with another judge, final judgment was not entered until July 10, 2015.

Subsequently, the plaintiff’s counsel learned in another case that Scotts actually possessed 26 samples of fertilizer from the relevant time period. Scotts rediscovered these samples in the spring of 2014, after they had been categorized and stored by their attorneys in 2006. On July 19, 2015, the plaintiff filed a motion under Rule 4:50-1 to vacate the January 2014 orders, arguing that the samples constituted new evidence and that Scotts made misrepresentations in discovery in the first matter. On August 21, 2015, the trial court denied the motion on procedural grounds, finding that the January 2014 orders were interlocutory and therefore not appealable. The appellate court held that because the appeal was filed within days of final judgment, the appeal was timely. The appellate court also agreed with the trial court that Scotts had a duty to disclose its possession of the vintage samples. The appellate court therefore vacated the final judgment, and left to the discretion of the trial court to determine whether the plaintiff should be given additional time to file a motion addressing the effect of the discovery violation on the in limine and summary judgment orders.

Read the full decision here.


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