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NJ Appellate Court Reverses $223.8 Million J&J Talc Verdict on Causation Grounds

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Court: The Superior Court of New Jersey, Appellate Division

Johnson & Johnson has successfully appealed a $223.8 million judgment against it following a trial involving allegations of asbestos-contaminated talcum powder in 2020.

Four plaintiffs filed suit against J&J alleging that certain talcum powder products manufactured by J&J and used by plaintiffs were contaminated with asbestos and caused plaintiffs to develop mesothelioma. In February 2019, the trial court consolidated the four cases, and the consolidated trial commenced in June 2019. Over the course of the trial, J&J filed motions in liminie to exclude testimony from plaintiffs’ experts James Webber, Ph.D.; Jacqueline Moline, M.D.; and William Longo, Ph.D., and requested an N.J.R.E 104 hearing for each. The trial court denied the motions and hearing requests. In September 2019, the jury returned verdicts in favor of plaintiffs and awarded compensatory damages totaling $37.2 million. In February 2020, a separate jury rendered verdicts awarding punitive damages totaling $750 million. The trial court denied J&J’s motion for a new punitive damages trial, but automatically reduced the punitive damage award to $186.5 million under state law.

On appeal, J&J argued that the trial court erred, inter alia, by admitting expert testimony from Webber, Moline, and Longo, and that it abused its discretion in denying the N.J.R.E 104 hearings because the expert testimony was unreliable, unsupported by general methodologies, and unsupported by the facts in the record. J&J further contended that the trial court failed to make sufficient findings to justify its decision to admit the opinions.

According to New Jersey law, trial courts are responsible for making legal determinations about the reliability of an expert’s methodology. When engaging in its gatekeeping function, “the court must determine whether comparable experts accept the soundness of the presented methodology and evaluate the reasonableness of relying on the type of data and information underlying the expert’s opinion.” In re Accutane Litigation, 234 N.J. 348, 390, 396-97 (2018). “[A] trial court’s failure to perform its gatekeeping function by allowing experts to testify concerning untested opinions is error clearly capable of producing an unjust result.” Lanzo v. Cypprus Amax Minerals Co., 467 N.J. Super. 476, 517-18.

Regarding Webber, J&J contended that the trial court erred when it allowed Webber to testify that asbestos can include non-asbestiform minerals and all fibers, and that non-asbestiform cleavage fragments can cause cancer. The appellate court agreed, noting “[w]hen citing to a limited number of publications, Webber failed to identify the data he used to form his opinion and did not discuss how the authorities he relied upon provided comparable data from other experts in the same field.” Rather, “he only generally stated . . . that the sources he relied upon were similarly relied upon by other unspecified experts.” The appellate court further noted that Webber’s testimony, in conjunction with testimony provided by Longo—whotestified that the tool he used to identify asbestos fibers could not distinguish whether a fiber was asbestiform or non-asbestiform—created an implication that all fibers could cause mesothelioma, which is an unsupported theory. As such, the appellate court found that the trial court failed in its gatekeeping function by allowing the jury to hear “unsound science labeled as expert and scientific.”

Regarding Moline, J&J contended that the court erred when it allowed Moline to testify that non-asbestiform cleavage fragments and asbestiform fibers have the same health effects, and that J&J products caused plaintiffs’ mesothelioma. The appellate court agreed, finding that Moline failed to identify the data used to develop her opinion, did not discuss how the authorities she relied upon provided comparable data from other experts in the same field, and in some instances failed to adequately identify her sources. Moreover, the appellate court noted that Moline’s testimony “bolstered plaintiffs’ claims that they could have been exposed to substance that caused their mesothelioma,” and that “the jury could associate Moline’s statements with Longo’s testimony to conclude that all fibers could cause mesothelioma,” which is an unsupported theory.

Regarding Longo, J&J argued that the trial court erred when it admitted Longo’s testimony regarding “exposure calculations,” which extrapolated the number of products that each plaintiff used in their lifetime (based on plaintiffs’ deposition testimony regarding application of J&J products, along with J&J’s own studies regarding the amount of talcum powder an average person uses per application). The appellate court agreedthat this was in error, stating that “it is unclear if Longo’s extrapolation method had been tested, subjected to peer review or publication, subjected to the standards for controlling the technique, or accepted in the scientific community.” The court also noted that the trial court’s admission of Longo’s extrapolation testimony was “harmful because it lent significant weight to plaintiffs’ assertions that defendants’ products were a substantial factor in causing plaintiffs’ mesothelioma.”

Ultimately, the appellate court ruled in favor of J&J, holding that the trial court “misapplied the well-established judicial gatekeeping procedures required by our courts” in assessing whether plaintiffs’ experts based their testimony on sound science “and that the error was not harmless in regard to the testimony of Webber, Moline, and Longo.”  As such, the appellate court reversed and remanded the matters for a new trial.

Read the full decision here.