Talc verdicts have recently dominated legal headlines, but in a win for defendants, a $117 million verdict was erased. On April 28, 2021, the New Jersey Appellate Division found that plaintiff's experts Jacqueline Moline M.D. and James S. Webber Ph.D. were improperly allowed to testify that nonasbestiform minerals can cause mesothelioma in Lanzo v. Cyprus Amax Minerals Company, et al. The appellate court reversed the trial court and remanded the case for new trials.
The expert testimony at issue relates to a critical issue in talc litigation―whether nonasbestiform minerals can cause mesothelioma. In Lanzo, the trial court denied defendants' motions to preclude plaintiff's experts' opinions and permitted plaintiff's experts to testify that nonasbestiform cleavage fragments can cause mesothelioma. The trial court did not hold a Rule 104 hearing or perform any analysis, nor did the trial court assess methodology or the underlying basis upon which the experts relied. Rather, the trial court set up a battle of the experts without performing its gatekeeping role because "'the asbestiform versus the non-asbestiform habit' was 'one of the central issues in these talc cases... .'"
However, the Appellate Court found this to be error―the trial court did not act as a gatekeeper, as required under the New Jersey Rules of Evidence and the New Jersey Supreme Court's decision in In re Accutane Litigation, 234 N.J. 340 (2018).
Under Accutane, to be admissible, an expert's causation testimony must be "based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field." Accutane at 349-50. The trial court is the gatekeeper of expert witness testimony and must determine what testimony is reliable enough to be admissible based upon legal determination of the expert's methodology. "Properly exercised, the gatekeeping function prevents the jury's exposure to unsound science through the compelling voice of an expert." Accutane, 234 N.J. at 389.
In Lanzo, Webber opined that there was no distinction between asbestiform and nonasbestiform fibers because "if it has the right morphological characteristics and mineralogical and chemical characteristics, it has the potential to cause disease." At trial, Webber admitted that he had not conducted and did not know of any studies showing that nonasbestiform cleavage fragments can cause mesothelioma.
The court found that the authorities Webber purportedly relied upon did not support his conclusion and that Webber did not demonstrate that these authorities would be reasonably relied upon by others in his field to reach a causation opinion. The court further found that Webber's opinion had not been tested, had not been the subject of peer review or publication, and had not been proven as generally accepted in the scientific community.
The court also found Moline's opinion to be similarly flawed. Moline had claimed there was published scientific literature demonstrating that nonasbestiform amphibole minerals can cause mesothelioma, claiming elevated rates of mesothelioma in case study groups where individuals were exposed to nonasbestiform minerals. However, her report lacked citations to specific publications in support of her statements.
This ruling is significant for defendants in talc and other toxic tort litigation because it reinforces the importance of the court as a gatekeeper to preclude unsubstantiated opinions and unsupported "science." This is critical in cases where the jury is asked to determine causation of the plaintiff's disease. Further, this decision lays the foundation for courts around the country to preclude similar unsubstantiated opinions and theories on whether nonasbestiform minerals in talc can cause mesothelioma.
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