BARDEN v. BRENNTAG

 SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-0047-20
A-0048-20
A-0049-20
A-0050-20
ROSLYN BARDEN, individually and as
Executrix and Executrix Ad Prosequendum
of the Estate of DOUGLAS BARDEN,
ESTATE OF DOUGLAS BARDEN,
DARLENE PASTORE ETHERIDGE,
individually and as Executrix and
Executrix Ad Prosequendum of the Estate
of DAVID CHARLES ETHERIDGE,
ESTATE OF DAVID CHARLES
ETHERIDGE, D'ANGELA M. MCNEILL-
GEORGE, and ELIZABETH RONNING,
individually and as Executrix and
Executrix Ad Prosequendum of the Estate
of WILLIAM RONNING, and the
ESTATE OF WILLIAM RONNING,
Plaintiffs-Respondents,
v.
BRENNTAG NORTH AMERICA, INC.,
individually and as Successor-in-Interest
to MINERAL PIGMENT SOLUTIONS,
INC., as Successor-in-Interest to
WHITTAKER CLARK & DANIELS,
INC., BRENNTAG SPECIALTIES, INC.,

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-0047-20
f/k/a/ MINERAL PIGMENT
SOLUTIONS, INC., as Successor-in-
Interest to WHITTAKER, CLARK &
DANIELS, INC., CYPRUS AMAX
MINERALS COMPANY, individually and
as Successor-in-Interest to AMERICAN
TALC COMPANY, METROPOLITAN
TALC COMPANY, INC, CHARLES
MATHIEU, INC., RESOURCE
PROCESSORS, INC., SIERRA TALC
COMPANY, UNITED TALC
COMPANY, IMERYS TALC AMERICA,
INC., f/k/a LUZENAC AMERICA, INC.,
individually and as Successor-in-Interest
to WINDSOR MINERALS, INC.,
AMERICAN TALC COMPANY,
METROPOLITAN TALC COMPANY,
INC., CHARLES MATHIEU, INC.,
RESOURCE PROCESSORS, INC.,
IMERYS U.S.A., INC., IMERYS TALC
VERMONT, INC., WHITTAKER CLARK
& DANIELS, INC., individually and as
Successor-in-Interest to AMERICAN
TALC COMPANY, METROPOLITAN
TALC COMPANY, INC., CHARLES
MATHIEU, INC., and RESOURCE
PROCESSORS, INC., UNION CARBIDE
CORPORATION,
Defendants,
and
JOHNSON & JOHNSON, JOHNSON &
JOHNSON CONSUMER, INC., f/k/a
JOHNSON & JOHNSON CONSUMER
COMPANIES, INC.,
3 A-0047-20
Defendants-Appellants.
_____________________________________
Argued September 27, 2023 – Decided October 3, 2023
Before Judges Haas, Gooden Brown and Puglisi.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket Nos. L-1809-17,
L-0932-17, L-7049-16, and L-6040-17.
Peter G. Verniero argued the cause for appellants
(McCarter & English, LLP, and Sills Cummis & Gross,
PC, attorneys; Peter G. Verniero, John C. Garde, and
Michael S. Carucci, on the briefs).
Denyse Clancy (Kazan, McClain, Satterley &
Greenwood) of the California bar, admitted pro hac
vice, argued the cause for respondents (Szaferman,
Lakind, Blumstein & Blader, PC, and Cohen, Placitella
& Roth, PC, Denyse Clancy, and Chris J. Panatier
(Simon Greenstone Panatier, PC) of the Texas,
California, and Pennsylvania bars, admitted pro hac
vice, attorneys; Moshe Maimon, Denyse Clancy,
Christopher Placitella, Chris J. Panatier, and Robert E.
Lytle, on the brief).

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
PER CURIAM
In these consolidated appeals, Johnson & Johnson (J&J) and Johnson &
Johnson Consumer, Inc. (J&JCI) (collectively defendants) appeal from
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judgments dated July 24, 2020, which awarded plaintiffs1 compensatory
damages totaling $37,300,000 and punitive damages totaling $186,500,000. For
the reasons that follow, we reverse and remand the matter to the trial court for a
new trial.
I.
We begin by briefly summarizing the procedural history most pertinent to
the issues raised on appeal.
Plaintiffs filed complaints alleging that defendants were involved in
mining and processing asbestos-containing products, including Johnson's Baby
Powder (JBP) and Shower to Shower (STS), which were sold and caused them
to develop mesothelioma following their long-term use of these products.2 On
February 1, 2019, the trial court issued a sua sponte order consolidating the four
cases for trial.
By the time of trial, the only remaining claims against defendants were
under the New Jersey Products Liability Act (PLA), N.J.S.A. 2A:58C-1 to -11,
1 The four primary plaintiffs were D'Angela M. McNeill George, David Charles
Etheridge, Douglas Barden, and William Ronning. Etheridge, Barden, and
Ronning passed away during the course of the proceedings and their estates were
substituted as plaintiffs.
2 Etheridge's, Barden's and Ronning's respective spouses also filed claims for
loss of consortium.
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premised upon a failure to warn and design defect theories. In addition,
McNeill-George presented a claim for defective manufacturing. Beginning on
June 29, 2019, and lasting for approximately thirty-three non-consecutive days,
the trial court conducted the liability and compensatory damages phase of the
jury trial.3
On July 11, 2019, the trial court granted plaintiffs' motion in limine to
preclude comments by defense counsel aimed at prejudicing the jury against
plaintiffs' counsel. During the course of the trial, the court reiterated the terms
of this order to defense counsel.
On July 15, 2019, the trial court denied defendants' motion in limine to
exclude expert opinion from James Webber, Ph.D., and also denied defendants'
request for an N.J.R.E. 104 hearing. Ten days later, the court denied defendants'
motion in limine to exclude expert testimony from Jacqueline M. Moline, M.D.
The court also denied defendants' request for an N.J.R.E. 104 hearing.
On August 5, 2019, the trial court denied defendants' motion to exclude
expert testimony from William E. Longo, Ph.D. and their request for a N.J.R.E.
104 hearing. On that same date, the court denied defendants' motions to strike
3 The parties did not include the transcripts of the trial court's jury voir dire. As
a result, the total number of trial days is unclear from the record on appeal.
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Webber's and Moline's expert opinions. The court later denied defendants'
motion to strike Longo's expert opinion.
In response to remarks defense counsel made during closing arguments,
the trial court struck defense counsel's entire summation for violating its prior
rulings concerning the conduct of the attorneys. The court denied defendants'
motion for a mistrial.
On September 11, 2019, the jury returned verdicts in favor of plaintiffs
and awarded them compensatory damages in varying amounts.4 The trial court
then excused the jury, having determined that the punitive damages phase of the
trial would proceed before a new jury panel.5 On February 9, 2020, the jury
rendered verdicts awarding punitive damages to plaintiffs. The court denied
defendants' motion for a new punitive damages trial. Later, the court reduced
the amount of the punitive damages awards. These appeals followed.
On appeal, defendants allege that the trial court erred during the
evidentiary trial when it: allowed plaintiffs' experts to testify that non -
4 The trial court later calculated prejudgment interest, which was added to each
award.
5 The punitive damages phase of the trial lasted approximately sixteen non-
consecutive days. Again, the total number of trial days is unclear from the
appellate record.
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asbestiform versions of the six asbestiform minerals, called "cleavage
fragments," could cause mesothelioma; sua sponte consolidated the trials of the
four groups of plaintiffs; struck defendants' entire closing argument; and made
cumulative errors as to the admission of evidence that enticed the jury to accept
plaintiffs' allegations that defendants' products contained asbestos and caused
plaintiffs' mesothelioma. As to the punitive damages phase of the proceedings,
defendants contend that the court erred when it: empaneled a new jury to decide
punitive damages; denied defendants' motion for a new punitive damages trial;
and failed to conduct an appropriate post-trial review of the punitive damages
awards.
II.
Defendants' primary argument is that the trial court erred by admitting
expert testimony from Webber, Moline, and Longo. Specifically, defendants
allege that the court abused its discretion when it denied their motions seeking
N.J.R.E. 104 hearings because the testimony of Webber, Moline, and Longo was
unreliable, not supported by generally accepted methodologies, and unsupported
by the facts in the record. Additionally, defendants contend that the court failed
to make sufficient findings under In re Accutane Litigation, 234 N.J. 340, 388
(2018), to justify its decision to admit the experts' opinions. Defendants rely on
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our decision in Lanzo v. Cyprus Amax Minerals Co., 467 N.J. Super. 476, 504-
18 (App. Div. 2021) to further support these arguments.
Having considered defendants' contentions on this point in light of the
record and the applicable law, we agree that the trial court misapplied the well-
established judicial gatekeeping procedures required by our courts and that the
error was not harmless in regard to the testimony of Webber, Moline, and Longo.
Therefore, we reverse and remand for a new trial.
A. STANDARD OF REVIEW AND THE TRIAL COURT'S GATEKEEPER
ROLE IN THE ADMISSION OF EXPERT TESTIMONY
A reviewing court will apply an abuse of discretion standard of review
when "assessing whether a trial court has properly admitted or excluded expert
scientific testimony in a civil case." Accutane, 234 N.J. at 348, 392. On appeal,
the trial court's ruling should be reversed only if it was "so wide off the mark
that a manifest denial of justice resulted." Green v. N.J. Mfrs. Ins. Co., 160 N.J.
480, 492 (1999). Notably, harmless error should be disregarded and, instead,
only errors "clearly capable of producing an unjust result" will cause the reversal
of a jury verdict. Velazquez v. City of Camden, 447 N.J. Super. 224, 232 (App.
Div. 2016) (quoting R. 2:10-2). 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, 467 N.J. Super. at 517-18.
9 A-0047-20
Expert testimony is governed by N.J.R.E. 702, which states that "[i]f
scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise." There are three prerequisites to
determine whether expert testimony is admissible, namely:
(1) the intended testimony must concern a subject
matter that is beyond the ken of the average juror; (2)
the field testified to must be at a state of the art such
that an expert's testimony could be sufficiently reliable;
and (3) the witness must have sufficient expertise to
offer the intended testimony.
[Accutane, 234 N.J. at 348 (quoting State v. Kelly, 97
N.J. 178, 223 (1984) (Handler, J., concurring in part
and dissenting in part).]
Importantly, the Accutane Court touched on an important distinction when
a court is charged with determining whether to admit expert testimony: a trial
court is tasked with making legal determinations about the reliability of an
expert's methodology, which is not to be confused with a credibility
determination in the province of the jury. Id. at 388. As a result, the Accutane
Court "clarif[ied] and reinforce[d] the proper role for the trial court as the
gatekeeper of expert witness testimony." Id. at 389. It instructed the trial courts
"to assess both the methodology used by the expert to arrive at an opinion and
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the underlying data used in the formation of the opinion." Id. at 396-97. This
"rigorous" role is critical because the court's gatekeeping function prevents the
jury from exposure to unsound science that is labeled expert or scientific. Id. at
390.
When engaging in this analysis, 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. Id. at 390, 396-97. To aid in the evaluation of
an expert's methodology, the Accutane Court encouraged trial courts to
incorporate the Daubert6 factors, which are both helpful and non-exhaustive. Id.
at 398.
In general, several of the pertinent Daubert factors include:
1) Whether the scientific theory can be, or at any
time has been, tested;
2) Whether the scientific theory has been
subjected to peer review and publication, noting that
publication is one form of peer review but is not a "sine
qua non";
3) Whether there is any known or potential rate
of error and whether there exist any standards for
6 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-95 (1993). Recently,
in State v. Olenowski, 253 N.J. 133, 151-52 (2023), our Court adopted the
Daubert principles in criminal cases.
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maintaining or controlling the technique's operation;
and
4) Whether there does exist a general acceptance
in the scientific community about the scientific theory.
[Ibid.]
Thus, under the standard set forth in Accutane, the party seeking to admit the
testimony must show that the expert "applies his or her scientifically recognized
methodology in a way that others in the field practice the methodology." Id. at
399-400. Notably, an expert should not selectively choose from the scientific
landscape. Id. at 400.
The Court has also provided guidance for evaluating expert testimony in
Rubanick v. Witco Chemical Corp., 125 N.J. 421, 449 (1991), when it held that
"a scientific theory of causation that has not yet reached general acceptance may
be found to be sufficiently reliable if it is based on a sound, adequately-founded
scientific methodology involving data and information of the type reasonably
relied on by experts in the scientific field." It emphasized that "[t]he critical
determination is whether comparable experts accept the soundness of the
methodology, including the reasonableness of relying on this type of underlying
data and information." Id. at 451.
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Overall, the proposed expert's testimony should be excluded when it does
not satisfy our Court's standards for a sound methodology and the reasonable
reliance on the type of data and information used by other experts in the field.
Accutane, 234 N.J. at 400. When an expert's opinion lacks the requisite
foundation, it is an inadmissible net opinion or a bare opinion that has no support
in factual evidence or similar data. Pomerantz Paper Corp. v. New Cmty. Corp.,
207 N.J. 344, 372 (2011).
B. DEFENDANTS' CHALLENGE TO WEBBER'S TESTIMONY
Defendants claim that Webber provided unreliable opinions that non-
asbestiform cleavage fragments cause cancer. Specifically, defendants contend
that the court erred when it allowed Webber to testify that asbestos can include
non-asbestiform minerals and all fibers and, also, that non-asbestiform cleavage
fragments can cause cancer. Defendants allege that the court should have held
an N.J.R.E. 104 hearing, Webber's opinions were unreliable, and his statements
on these topics were unreliable net opinions unsupported by data or a sound
methodology.
i. Webber's testimony at trial
After hearing oral argument on defendants' motion to exclude Webber's
testimony and request for an N.J.R.E. 104 hearing, the court denied defendants'
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motion without analysis and stated that defendants' concerns could be addressed
during cross-examination. During oral argument, plaintiffs' counsel noted that
Webber had testified before the same court in other matters and that Webber's
testimony would be "exactly" what he had done in Lanzo in terms of giving an
opinion as to whether there is asbestos in JBP.
At trial, Webber testified that the geological definition of "asbestos" is a
particle that contains long thin fibers that are flexible and have high tensile
strength. However, Webber stated that a fiber that lacks high tensile strength
and good flexibility can still be asbestos, be dangerous, and cause mesothelioma,
but it would not be as commercially useful. For example, he claimed that
"tremolite fibers" are asbestos.
Webber further explained that the definition of "regulated asbestos" is
long, thin, individual fibers with an aspect ratio of 3:1 or greater and with
substantially parallel sides. Fibers that meet the definition of regulated asbestos
have been related to asbestos disease. Later in his testimony, Webber stated that
"non-talc needles," elongated particles with parallel sides, are considered fibers
by the regulated asbestos definition.
When asked about cleavage fragments, Webber testified that they could
form by breaking an amphibole rock. Occasionally, an amphibole rock could
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break into elongated particles that could meet the definition of a fiber if the
particles have an aspect ratio of greater than 3:1 and parallel sides. Webber
explained that these particles would be counted as asbestos fibers because there
would be no way to differentiate whether the particle came from a crushed
amphibole rock or a fiber of asbestos.
Webber explained that he was aware of arguments about the
hazardousness, toxicity, or dangerousness of the cleavage fragment fibers. He
stated that a cleavage fragment lacks the properties associated with a geologist's
definition of asbestiform. Also, a cleavage fragment would not meet the
definition of asbestos or be hazardous in instances where a cleavage fragment
formed a chunk and lacked the problematic aspect ratio. However, when a
cleavage fragment forms a fiber, it would be considered hazardous from an
environmental health perspective because it has an aspect ratio of greater than
3:1 and essentially parallel sides. Moreover, although most cleavage fragmen ts
would not be small enough to reach the alveoli part of the lungs, Webber stated
that a cleavage fragment that was a fiber could reach the alveoli and be
hazardous.
To reach his conclusions, Webber generally relied upon "Surface Charge
Measurements of Amphibole Cleavage Fragments and Fibers" published by the
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Bureau of Mines in 1980 (the Surface Charge Article). Webber did not discuss
the details of the publication, the parameters of the study, or any of the scientific
analysis. Without specifying, Webber stated that there is "some evidence" in
the literature that the surface charge of a particle is a bio-activator that can cause
the mesothelium or alveoli to react and lead to cancer. Webber cited only to the
abstract of the publication to support his conclusion that the surface charge of
asbestos fibers was the same as those of elongated cleavage fragments with the
same aspect ratio.
Next, Webber generally cited to a United States Geological Survey
entitled "Mineralogy and Morphology of Amphiboles Observed in Soils and
Rocks in El Dorado Hills, California" dated 2006 (the 2006 Geological Survey).
A small portion of the discussion section of the survey was read to the jury, and
this passage stated that the definition of asbestos can vary based on the source
of the particles and the purpose of the particles in an industry. Without
discussing the details of the publication or any studies contained therein,
Webber concluded that when a person is trying to define asbestos in
environmental terms, an analyst must look at the aspects of fibers that are
pertinent to human health.
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Next, over defendants' objections, Webber relied upon a United States
Environmental Protection Agency (EPA) Region 9 report dated April 20, 2006,
entitled "Response to the November 2005 National Stone, Sand, & Gravel
Association Report Prepared by the R.J. Lee Group, Inc. 'Evaluation of EPA's
Analytical Data from the El Dorado Hills Asbestos Evaluation Project'" (the
2006 EPA Region 9 Response) when forming his conclusions that the EPA made
no distinction between fibers and cleavage fragments of comparable chemical
composition, size, and shape. To support this conclusion, Webber merely read
the same sentence from the publication to the jury and stated that he agreed with
it. Further, to validate his notion that cleavage fragments could impact human
health, Webber selected a few other sentences from the report that stated the
cleavage fragment hypothesis needed to be studied further before experts could
conclude that such particles are benign.
Again over defendants' objections, Webber next relied upon a 2009 article
by Gregory Meeker from the United States Geological Survey (the Meeker
article) as the basis for his conclusion that using the term "asbestiform" to
differentiate a hazardous from a non-hazardous substance has no foundational
basis in medical sciences. During cross-examination, Webber admitted that: he
did not perform any exposure analysis or research to see if there were any trace
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amounts of asbestos in JBP; there was no scientific study published in peer
review literature that concludes that JBP or STS increases a person's risk of
mesothelioma; and there have never been any published papers or studies that
have concluded that cleavage fragments have the same health effects as asbestos
or increase a person's risk for mesothelioma.
In addition, Webber admitted that: the Occupational Safety and Health
Administration (OSHA) concluded that there was not enough substantial
evidence to conclude that non-asbestiform versions of tremolite, anthophyllite,
and actinolite present the same health effects as asbestos; and OSHA concluded
that cleavage fragments do not have similar health effects as asbestos. Finally,
when confronted with his prior publication from 2004 where he stated that not
all particles with 3:1 aspect ratios are asbestos fibers, Webber explained that his
prior statement was not "well-advised."
ii. The Lanzo court's analysis of Webber's prior testimony
In Lanzo, we agreed with J&JCI and Imerys Talc America, Inc., the
defendants in that case, that the trial court erred by abusing its discretion, and
that the error was not harmless, when it allowed the jury to hear Webber's
opinion that non-asbestiform minerals that are similar in size to asbestiform
minerals can cause mesothelioma. Lanzo, 467 N.J. Super. at 503. During that
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trial, the court did not hold an N.J.R.E. 104 hearing to perform the analysis
required by Accutane, failed to assess Webber's methodology, and did not
consider Webber's underlying data. Id. at 507.
In front of the Lanzo jury, Webber stated that cleavage fragments had the
same potential to cause disease as asbestos fibers with similar aerodynamic
dimensions and, also, that he was not aware of any studies showing that non-
asbestiform cleavage fragments can cause mesothelioma. Id. at 508-09.
Further, Webber failed to cite to any authority for his claims that cleavage
fragments present the same risk as asbestos fibers because of their identical
chemical composition and bio-durability. Ibid.
We further took issue with the sources that Webber relied upon. Id. at
509. First, we held that a study by the pathologist Victor Roggli was insufficient
to support the conclusion that non-asbestiform tremolite causes mesothelioma
because the study did not distinguish between asbestiform and non-asbestiform
fibers. Ibid. Second, we found that Webber's decision to cite a single quote
from a paper entitled "Differentiating Non-Asbestiform Amphibole and
Amphibole Asbestos by Size Characteristics" published in the December 2008
Journal of Occupational and Environmental Hygiene co-authored by Dr. Martin
Harper and the National Institute of Occupational Safety and Health (NIOSH)
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was insufficient to explain the scientific basis for Webber's opinion that non-
asbestiform amphibole particles could meet the definition for a fiber. Ibid.
Moreover, a later NIOSH publication clarified that the inclusion of non-
asbestiform minerals in the definition of airborne asbestos fibers was based on
inconclusive evidence. Id. at 509-10.
Third, we ruled that Webber's reliance on the 2009 Meeker article was
flawed. Id. at 510. In particular, the 2009 Meeker article's claim that using the
term asbestiform to differentiate between hazardous and non-hazardous
substances had no basis in the medical science. Ibid. Meeker failed to report a
scientific study and the article was not peer reviewed. Ibid. Finally, we held
that Webber's reliance on the 2006 EPA Region 9 Response was problematic
because the publication claimed that the EPA made no distinction between fibers
and cleavage fragments of the same chemical composition, size, and shape. Ibid.
Notably, the EPA publication did not cite to any studies and Webber failed to
discuss any details in his testimony. Ibid.
As to Webber's testimony specifically, we explained that his opinion that
non-asbestiform cleavage fragments could cause mesothelioma was untested
and he failed to show that his theory was generally accepted in the scientific
community. Id. at 511. Further, we ruled that the trial court erred because it
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failed to establish that Webber's methodology involved data and information of
the type reasonably relied upon by experts in the field, failed to assess Webber's
methodology, and failed to consider the underlying data that Webber used to
form his opinion. Ibid.
iii. In the present case, the trial court erred by admitting Webber's
expert testimony and the admission of this testimony was not harmless
error
Here, as in Lanzo, the trial court failed to perform its gatekeeping role in
assessing the underlying reasonableness of Webber's methodology and
underlying data in forming his opinion. When 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, without
explanation or discussion, that the sources he relied upon were similarly relied
upon by other unspecified experts.
Tellingly, when discussing the Surface Charge article, Webber did not
discuss the details of the study or the parameters under which surface charges
were evaluated. Webber only briefly referenced one sentence from the abstract
to support his conclusion that cleavage fragments could cause cancer. Similarly,
when discussing the 2006 Geological Survey, Webber extrapolated his idea that
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when studying asbestos in the environment, an analyst should look at the effects
of asbestos on human health. There was no support in Webber's testimony that
the 2006 Geological Survey made this connection or explained how he reached
his conclusion.
Significantly, two of Webber's sources in the present case were explicitly
criticized in Lanzo: the 2009 Meeker article; and the 2006 EPA Region 9
Response. In Lanzo, we stated that the 2009 Meeker article did not report the
results of a scientific study, was not peer reviewed, made controversial claims,
and did not support the proposition that non-asbestiform minerals can cause
cancer. Id. at 510-11. Further, we explained that the 2006 EPA Region 9
Response provided no details of any studies, made no distinctions between
asbestiform fibers and cleavage fragments; and did not state that exposure to
cleavage fragments caused mesothelioma. Ibid. Webber's testimony as to these
two sources is similarly faulty in the present case.
As to the trial court's gatekeeping function, it failed to hold an N.J.R.E.
104 hearing and made no legal determinations of reliability about Webber's
methodology. Rather, the court allowed the jury to hear unsound science labeled
as expert and scientific when it allowed the jury to make credibility
determinations, contrary to the explicit instructions in Accutane.
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Further, an application of the Daubert factors does not support the
admission of Webber's testimony as his theories were untested, not subject to
peer-review, and not generally accepted in the scientific community.
Importantly, Webber did not explain the standards he applied to reach his
conclusions and instead set forth bare conclusion in the form of an unsupported
opinion. For the court's part, it did not assess Webber's methodology or
underlying data used to form his opinion. Therefore, the court mistakenly
exercised its discretion when it admitted Webber's testimony.
The trial court's error in admitting the testimony was harmful error
because it was "so wide off the mark that a manifest denial of justice resulted."
Green, 160 N.J. at 492. Webber theorized that cleavage fragments could cause
mesothelioma without support and the testimony bolstered plaintiffs' claims that
their illnesses were linked to particles that could have been present in talcum
powder. Although Webber did not opine that cleavage fragments were in JBP
or STS, he linked the existence of cleavage fragments to mesothelioma.
Moreover, the jury heard testimony from Longo, another of plaintiffs'
experts, that the tool he used to identify fibers7 could not distinguish between
7 Longo testified he used a transmission electron microscope (TEM) to conduct
his analysis.
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whether a fiber was asbestiform or non-asbestiform. As a result, the implication
is that all fibers could cause mesothelioma if either asbestiform fiber particles
or fiber-shaped non-asbestiform cleavage fragments can cause cancer. Thus, the
jury heard unsupported theories that cleavage fragments could cause cancer and
we are satisfied this error was "clearly capable of producing an unjust result."
Velazquez, 447 N.J. Super. at 232. As a result, the jury verdict must be
overturned and a new trial held.
C. DEFENDANTS' CHALLENGE TO MOLINE'S TESTIMONY
Defendants also allege that the trial court should have precluded or
stricken Moline's expert testimony. Specifically, defendants contend that the
court erred when it allowed Moline to testify that non-asbestiform cleavage
fragments and asbestiform fibers have the same health effects and, also, that
defendants' products caused plaintiffs' mesothelioma.
i. Moline's testimony at trial
After hearing oral argument, the trial court denied defendants' motion
seeking an N.J.R.E. 104 hearing and to exclude Moline's testimony regarding
cleavage fragments. It held that Moline's testimony was not cumulative and
confined her testimony to the parameters of her expert report regarding cleavage
fragments. The court noted that Moline had "apparently cited to literature and
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different agencies" with regard to her opinions on cleavage fragments.
Moreover, without further analysis, the court stated generally that there "are
geological definitions that defendants point to and they have their experts in that
regard, and there is a body of agencies and opinions relative . . . toward the
discussion of what does it all mean, in terms of medicine and . . . the effect on
the body."
At the outset of her testimony, Moline explained that asbestos is a fiber
and that there are six regulated types of asbestos. She stated that she relied on
a 2019 article from the Finnish Institute of Occupational Health entitled
"Asbestos risk management guidelines for mines" (the 2019 Finnish article).
She generally explained that the article supported her definition of asbestos as
being any particle that has a minimum "length-to-thickness ratio" of 3:1.
Moreover, she claimed without specificity that from an occupational medicine
and public health point of view, fibers that are longer than they are wide are
hazardous, cause cancer, and lead to pulmonary diseases.
Moline stated that she relied on a 2014 article by "Gordon, Fitzgerald, and
Millette" entitled "Asbestos in commercial cosmetic talcum powder as a cause
of mesothelioma in woman" (the 2014 Gordon article) to support her conclusion
25 A-0047-20
that exposure to talc, including defendants' talc, can cause mesothelioma.
However, she did not discuss the details of the study, the data, or the results.
Later in her testimony, Moline again relied generally on the 2019 Finnish
article when she concluded that all types of asbestos could cause mesothelioma.
Without explaining the scientific basis for her theory, she stated that asbestos
fibers that meet the size criteria pose a health risk regardless of how they are
characterized by a geologist or mineralogist.
When discussing whether defendants' products caused plaintiffs'
mesothelioma, Moline stated that she had reviewed "papers" showing that
asbestos can become airborne when using talcum powders. She again briefly
referred to the 2014 Gordon article, an untitled paper by "Rohl," and an unnamed
study by "Mattenklott." At no point in Moline's testimony did she explain the
details or specifics of the Rohl and Mattenklott studies. Rather, she would
generally refer to these three papers throughout her testimony without
describing the specific parameters of the studies to support her conclusion that
billions of particles of asbestos can become airborne when small amounts of
talcum powder were used.
On cross-examination, Moline admitted that she had never concluded that
talcum powder caused mesothelioma prior to being hired by plaintiffs' attorneys.
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Moreover, she admitted that she issued her opinion that defendants' products
caused plaintiffs' mesothelioma prior to interviewing or examining Barden and
Etheridge and, also, without interviewing or examining McNeill-George and
Ronning.
ii. The Lanzo court's analysis of Moline's prior trial testimony
In Lanzo, we concluded that Moline's expert testimony that non-
asbestiform minerals can cause mesothelioma suffered from similar defects as
Webber's opinions at trial. Lanzo, 467 N.J. Super at 511-12. We held that the
trial court failed to assess Moline's methodology and the underlying data that
she used to form her opinions. Id. at 513. Accordingly, we reversed and
remanded for a new trial because the court failed to perform its gatekeeping
function. Ibid.
For example, Moline relied on the 2006 EPA Region 9 Response when
she concluded that there was no difference between asbestiform fibers and non -
asbestiform cleavage fragments with the same dimensions and chemical
compositions in terms of their ability to cause disease. Id. at 512. Moline failed
to support her claims that there had been published literature and, also, studies
to form the basis for her conclusions that non-asbestiform amphiboles cause
mesothelioma. Ibid. Moreover, although she claimed that she reviewed
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additional studies and found information to support her statement that non -
asbestiform minerals were carcinogenic, she failed to identify these studies. Id.
at 512-13.
Moline's expert report stated, without support, that the EPA, Centers for
Disease Control (CDC), and American Thoracic Society rejected the notion that
there is biological significance to labeling anthophyllite or tremolite as either
non-asbestiform or cleavage fragments. Id. at 512. She also failed to cite her
sources for her claim that miners and millers of talc in New York had
mesothelioma caused by talc containing approximately 50% non-asbestiform
anthophyllite and tremolite. Ibid.
iii. In the present case, the trial court erred by admitting Moline's
expert testimony and the admission of this testimony was not harmless
error
Again, as in Lanzo, the trial court failed to perform its gatekeeping role in
assessing the underlying reasonableness of Moline's methodology and
underlying data in forming her opinion. Moline failed to identify the data she
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. For example, she repeatedly
cited to studies by Rohl and Mattenklott which may have had the effect of
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bolstering her statements to the jury as being more reliable despite Moline
failing to discuss any details of such studies.
Further, Moline failed to explain her methodology or data as it related to
her use of the 2019 Finnish article to support her claim that from a public health
point of view, fibers that are longer than they are wide are hazardous, cause
cancer, and lead to pulmonary diseases. Similarly, she failed to explain the link
between her theories about the causes of mesothelioma and the 2014 Gordon
article because she did not explain the article including the data relied upon and
the analysis.
As to the trial court's gatekeeping function, it again failed to hold an
N.J.R.E. 104 hearing and made no legal determinations of reliability about
Moline's methodology. The court also permitted the jury to make credibility
determinations as to the quality of the expert testimony instead of first
determining whether Moline's opinion was based on sound and adequately
founded scientific methodology.
For the same reasons stated above regarding the admission of Webber's
testimony, the trial court's failure to adequately perform its gatekeeping function
was harmful error because it was "so wide off the mark that a manifest denial of
justice resulted." Green, 160 N.J. at 492. Moline theorized that cleavage
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fragments could cause mesothelioma, but did not opine that cleavage fragments
were in JBP or STS. However, her testimony bolstered plaintiffs' claims that
they could have been exposed to substances that caused their mesothelioma.
What is more, the jury could associate Moline's statements with Longo's
testimony to conclude that all fibers could cause mesothelioma if either
asbestiform fiber particles or fiber-shaped non-asbestiform cleavage fragments
can cause cancer. Thus, via Moline's testimony, the jury heard unsupported
theories that cleavage fragments could cause cancer. Because this error was
"clearly capable of producing an unjust result," Velazquez, 447 N.J. Super. at
232, we reverse and remand for a new trial.
D. DEFENDANTS' CHALLENGE TO LONGO'S EXTRAPOLATION
TESTIMONY
Defendants also raise several arguments concerning the trial court's
admission of Longo's expert testimony. We will address defendants' contentions
concerning Longo's extrapolation testimony because that testimony represents
another occasion where the court failed to discharge its gatekeeping function as
required by Accutane.
i. The trial court's decision
After hearing oral argument, the trial court denied defendants' motion to
hold an N.J.R.E. 104 hearing and exclude Longo's trial testimony concerning his
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"exposure calculations" where he extrapolated the number of ten-ounce
containers of defendants' products that each plaintiff used in their lifetime. As
to Longo's extrapolation testimony, the court merely stated that it was
"something that Dr. Longo has done in this courtroom during the course of trials,
where he takes the testimony . . . of the plaintiff and he does an extrapolation ."
The court stated that it had seen Longo use data on "some" J&J documents
previously. On the basis of those statements, the court concluded that there
would be no prejudice in allowing Longo to testify as to extrapolation because
"he's done it on other trials." Instead of analyzing the matter further in
accordance with the Accutane mandates, the court stated that any issues with
Longo's testimony on this subject could be resolved on cross-examination.
ii. Longo's testimony regarding extrapolation
Longo explained that he reviewed the deposition testimony of McNeill-
George, Etheridge, Barden, and Ronning. He believed that their description of
how they used J&J's products was fair because based on J&J's own studies, most
users of J&J's products used them after showering as plaintiffs had. Based on
J&J's own studies, people used about eight grams per application.
Based upon that ambiguous data, Longo estimated that McNeill-George
would have had 13,578 exposures to JBP and STS made with talc from the
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Vermont and Chinese mines and those exposures would have been substantial.
He opined that Etheridge would have had approximately 8,180 applications of
JBP, was exposed to substantial amounts of asbestos, and would have been
exposed to the Vermont and Chinese talc.
According to Longo's analysis, Barden used JBP for approximately 23,449
applications, was exposed to substantial amounts of asbestos by virtue of his use
of JBP, and that the talc came from the Italian and Vermont mines based on the
timing of his usage. Finally, Longo told the jury that Ronning had
approximately 6,787 applications of JBP with talc from the Vermont and
Chinese mines, which would have represented a substantial exposure.
On cross-examination, Longo explained that he counted the number of
applications, counted the amount of talcum powder used per person, and
provided a potential range of exposure when he concluded that it was more likely
than not that each plaintiff had substantial exposure to asbestos from defendants'
products. He based his extrapolation data on a sample from a bottle of
defendants' product that had been obtained on eBay. This bottle had the highest
concentration of asbestos of any of the sample bottles Longo examined. Longo
testified he used this unique sample bottle because the concentration of asbestos
32 A-0047-20
in it was similar to a published paper that had an analogous amount of asbestos
and he wanted to compare the two.
During cross-examination, defense counsel asked how Longo determined
whether someone experienced "substantial exposure" to asbestos and alleged his
testimony contradicted his expert testimony in other matters. In particular, in a
prior case, Longo testified about an individual's use of crocidolite filters used in
"Kent Micronite" brand cigarettes and, also, that same individual's possible
asbestos exposure from mixing cement with asbestos. At the time of that case,
Longo did not believe that the asbestos in the cement would cause significant
asbestos exposure. He admitted that the asbestos in the mixing cement was in
excess of the asbestos found in JBP, but explained that the exposure to the
asbestos in JBP was higher because it was being used as a hygiene product.
iii. The trial court erred by admitting Longo's extrapolation
testimony and the admission of this testimony was not harmless error
As set forth above, Longo estimated the number of exposures McNeill-
George, Etheridge, Barden, and Ronning each had to defendants' products based
upon: their deposition testimony about the number of times they used
defendants' products per day; J&J's own studies about the amount of talcum
powder a person used per application; and the length of time each plaintiff used
defendants' products as presented in their respective deposition testimony. In
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permitting this testimony without first conducting an N.J.R.E. 104 hearing and
subjecting Longo's claims to the standards set forth in Accutane and Daubert,
the trial court clearly erred in its judicial gatekeeping and abused its discretion.
There is insufficient evidence in the record to conclude that Longo's
extrapolation methodology was based on a sound, adequately founded scientific
methodology involving data reasonably relied upon by experts in the scientific
field. Further, it is unclear if Longo's extrapolation method had been tested,
subjected to peer review or publication, subjected to standards for controlling
the technique, or accepted in the scientific community.
Tellingly, the trial court's analysis of the extrapolation method only
consisted of recognizing that Longo had presented similar data in prior cases
and had used J&J's documents in his analysis. This meager "finding" plainly
did not comply with the strictures of Accutane and Daubert.
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. This error was clearly capable of producing an unjust result.
Therefore, the matter must be reversed and remanded for a new trial.
34 A-0047-20
E. CONCLUSION
In sum, the trial court erred when it admitted Webber's and Moline's
testimony about cleavage fragments, and Longo's extrapolation testimony.
These errors, taken singularly or collectively, were harmful and require the
reversal of the jury verdict. See Lanzo, 467 N.J. Super. at 517-18 (holding that
trial court's failure to perform its gatekeeping function by allowing experts to
testify concerning untested opinions is error clearly capable of producing unjust
result). Therefore, we reverse the July 24, 2020, orders of final judgment and
remand the matter for new trials.
In view of our decision, we need not address the other issues that
defendants have raised on appeal, including their contentions that the trial court
erred by: striking their closing argument; consolidating the four matters for
trial; committing other evidentiary and trial errors; empaneling a new jury for
the punitive damages phase of the trial; denying their motion for a new trial on
punitive damages; and failing to conduct an appropriate post-trial review of the
punitive damages awards.
Reversed and remanded to the trial court for further proceedings in
accordance with this opinion. We do not retain jurisdiction.