Docket No.: A-5711-17
Decided April 28, 2021
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
In a recent published decision, the Appellate Division overturned a jury verdict in the amount of $117 million, remanding for a new trial, for discovery errors made by the judge in including certain unreliable expert testimony.
In Lanzo, plaintiffs claimed Mr. Lanzo contracted mesothelioma from his long-term use of Johnson Baby Powder (JBP) and J&J’s Shower to Shower talcum powder (SS). J&J and Johnson & Johnson Consumer Inc. (JJCI) produced, marketed, and sold JBP and SS using J&J’s own talc or talc supplied by other defendants. Plaintiffs alleged the products contained asbestos. In the complaint, Ms. Lanzo asserted a claim for the loss of her spouse’s services, society, and consortium.
Prior to the trial, all other defendants were dismissed except JJCI and Imerys. A Rule 104 hearing was conducted for one of plaintiffs’ experts, but not others. The trial was conducted, and plaintiffs’ experts testified on a variety of subjects, from the history of asbestos causing mesothelioma in J&J products, and the reliability and extensiveness of locating asbestos in their products.
The trial judge had also found that Defendant Imerys had tampered and destroyed evidence that was unable to be used at trial and provided instruction to the jury to use a adverse inference against Imerys. JJCI sought to separate the trials, but the request was denied.
After the jury returned their verdict, Defendants appealed. They argued the Judge abused his discretion in allowing plaintiff’s experts to testify before the jury without a firm basis in science and evidence. Further, they argued the adverse inference was inappropriate and that the judge should have separated trials.
The Appellate Division found that for two of plaintiffs’ proposed experts, a large amount of their testimony was not backed up with sources, was not scientifically tested, nor was it peer reviewed. Therefore, the Appellate Division found that because a Rule 104 hearing was not conducted, the Judge abused his discretion as a gatekeeper and failed to keep out this unreliable testimony, warranting a new trial. Further, the failure to separate trials after the adverse inference was going to be used against Imerys, significantly prejudiced JJCI, and separate trials should have been used. The adverse inference itself, however, was appropriate for destroying evidence.
For personal injury matters, experts can make or break a case. In order to have an admissible expert report or testimony, and not an impermissible net opinion, the expert’s report and conclusions must be based on facts contained in the record and must fall within the scope of the expert’s criteria. An expert cannot opine on material outside of their expertise, and they cannot rely on facts not contained in the record. Their evidence must be grounded in scientific fact, must be tested, and usually must be peer reviewed. Perhaps what is more important is hiring an attorney that understands these requirements and has a variety of trusted experts to ensure that the expert reports used to prove your case are admissible that get the compensation you are entitled.
If you or someone you know has been injured in a product liability, slip and fall, motor vehicle accident, truck crash, wrongful death, or other premises related injury, you need to make sure you contact a personal injury attorney with experience today. Failing to consider these issues could result in your case be dismissed permanently. Do not hesitate to contact Hark & Hark today to discuss your personal injury.
For personal injury matters, you pay nothing upfront, and our fee is paid as a percentage of your recovery. At Hark & Hark, we represent clients in all towns in New Jersey, including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington, Haddon Heights, Pine Hill, Bellmawr, Haddon Township, Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.