In S tephen Lanzo, III and Kendra Lanzo v. Cyprus, Johnson & Johnson et. al. DOCKET NO. A-5711-17, DOCKET NO. A-5717-17, Superior Court Of New Jersey Appellate Division (April 28, 2021) Johnson & Johnson Consumer Inc. (JJCI) and Imerys Talc America, Inc. (Imerys) appealed a judgment of April 23, 2018, which notified plaintiff Stephen Lanzo III and his wife Kendra Lanzo $ 117 million in damages and other decisions imposed by the trial during the trial.
The plaintiff sued Cyprus Amax Minerals Company (Cyprus Amax) and Cyprus Minerals Company (collectively Cyprus), Johnson & Johnson (J&J), JJCI, Imerys and Whittaker Clark & Daniels, Inc. (Whittaker), claiming that they were responsible for Lanzo's contracting mesothelioma.
The plaintiff claimed that Lanzo contracted mesothelioma from his time use of Johnson Baby Powder (JBP) and J & J & # 39 ;s Shower to Shower talk (SS). J&J and JJCI produced, marketed and sold JBP and SS with J & J's own talk or talk delivered by other respondents. The plaintiff claimed that the products contained asbestos. In the complaint, Lanzo claimed a claim for the loss of his wife's services, society and consortium.
During the trial, J&J, JJCI, Imerys and Cyprus moved Amax to lawyer's expert Jacqueline Moline, MD, from testifying that non-asbestos-cleaving fragments of certain minerals can cause mesothelioma. The judge limited the scope of Moline's testimony, but allowed her to testify about "non-asbestos cleavage fragments from a medical point of view."
The jury ruled against JJCI and Imerys, finding that Lanzo had been exposed to asbestos and that such exposure was a significant factor in causing his mesothelioma. The jury awarded JJCI seventy percent liability for damages and thirty percent to Imerys.
Daubert and the Experts' Review
The Court stated that when adopting the more relaxed approach to expert testimony, "it saw the Court's function as a gatekeeper – deciding what is reliable enough to be addressed and what to do. excluded. It is not credibility rules that are the jury province, but rather legal decisions about the reliability of the expert's methodology.
The Board of Appeal concluded that the trial court erred in failing to perform the necessary gatekeeping function with respect to testimony from expert Moline because the court did not conduct a Rule 104 hearing to test her theory and did not perform any analysis of whether Daubert factors had been met. The Court thus erred in allowing Moline to testify that there was no difference between asbestos-shaped fibers and non-asbestos-forming fission fragments with the same dimensions and chemical composition in terms of their ability to cause disease.
After concluding that the Court erred in allowing expert testimony that non-asbestos minerals could cause mesothelioma, a careful examination of the protocol, the Board of Appeal was convinced that the judge's erroneous decision could clearly give an unfair result, and therefore required new trials.
Perhaps anticipating that the defendant would claim that only non-asbestos-shaped amphiboles were present in some of the talc used in JBP, the plaintiff's attorney argued in his introductory statement that non-asbestos-shaped fibers could cause asbestos-related illness. The plaintiff's council told the jury that:
”[J&J] met with other companies that sold talc and they chose to call asbestos something else. I guess the theory is that if you do not call it asbestos, it can not cause asbestos-related disease. You see [J&J] and the other talk companies claimed that these minerals come in different forms, they grow in the soil in different forms. To the right you see something very fibrous, you see all the fibers. On the left it is rocky, it is thick and it is not fibrous. And they argued and they argued that there is a difference when it comes to. . . the ability to cause disease. . . about whether the only fiber that enters the lungs, that enters the lung sac, that attacks the cells grew up one way or grew up another. . . . The defendants will urge everyone to adopt these other definitions. And our experts will say that it does not matter what you call something . The cells in our body do not know the difference in where they grew up. . . whether they grew up as a fiber or as a stone. It's the same mineral. It's the same chemistry. These are the same dimensions. It causes the same diseases. . . . [Webber is] will explain to us that it does not matter what you call it, it does matter if it can be inhaled or not and it does matter if it can penetrate all the way where the cancer begins. That's the important thing. [(Emphasis added).]
If the jury accepted the experts' unconfirmed views, it could certainly be considered that it did not matter, in terms of the ability to cause disease, whether Longo correctly identified the structures he found in the bundles of vintage samples or whether these structures were asbestos-shaped or non-asbestos.
Based on testimony from the plaintiff's experts and the plaintiff's introductory and concluding remarks, the jury could have concluded that the term "asbestos" in the judge's question referred to non-asbestos form as well as asbestos mineral, an unfair and inappropriate conclusion.
Therefore, the court did not carry out its doorman and wrongly allowed the "experts" to testify to their untested opinion that non-asbestos minerals can cause mesothelioma. Therefore, the judgment was reversed and a new trial was requested for both defendants.
When the jury allowed a negative conclusion to be drawn that Imery's talc was contaminated with asbestos, it would be difficult, if not impossible, for the jury not to make the same discovery as for JJCI. The trial court therefore erred in failing to break the claims against JJCI and Imerys.
The trial court erred in allowing the jury instructions to incorrectly limit consideration of alternative causes of Mr. Lanzo's illness; and there was insufficient evidence to support the jury's judgments.
Making a judgment of $ 117 into nothing but wallpaper was the result of overuse of experts to give opinions for which they were not qualified; combined with unfounded introductory and concluding statements from the plaintiff's lawyer, resulted in remorse as the trial court allowed the plaintiff's counsel and their experts to deceive the jury. The defense protected the minutes and the Board of Appeal had no choice but to reverse and cover its decision with a statement of more than 50 pages, even though the decision was based on a single mistake regarding excessive testimony from experts. Regardless of which insurance company or insurance company insured, the defendants can breathe a sigh of relief until the new trial and they will be prepared to effectively defend the accusation.
© 2021 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to serving as an insurance consultant specializing in insurance coverage, insurance claims handling, infidelity and insurance fraud almost [insurersandinsurersalike
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