Appellate Court Finds Testimony on Non-Asbestiform Cleavage Fragments Inadmissible in Cosmetic Talc Case

On April 28, 2021, the New Jersey Appellate Division determined that the trial court erred in allowing plaintiffs’ expert testimony that non-asbestiform cleavage fragments could cause mesothelioma. In Lanzo v. Cyprus Amax Minerals Company, Dockets Nos. A-5711-17 and A-5717-17, defendants Johnson & Johnson Consumer Inc. (JJCI) and its talc supplier Imerys Talc America, Inc. (Imerys) successfully appealed a $117 million award in compensatory and punitive damages to plaintiffs Stephen Lanzo III and his wife, Kendra Lanzo. Mr. Lanzo alleged he developed mesothelioma as a result of his long-term use of Johnson’s Baby Powder and Johnson & Johnson’s “Shower to Shower” powder.

The Appellate Division found the trial court abused its discretion by permitting plaintiffs’ experts, James S. Webber, Ph.D., and Jacqueline Moline, M.D., to testify during the trial that non-asbestiform cleavage fragments and elongate particle minerals could cause mesothelioma. As a result, the Appellate Division, relying on the Supreme Court’s decision in In Re Accutane Litigation (Accutane), 234 N.J. 340 (2018), ordered new trials. Emphasizing the court’s gatekeeping role in evaluating the admissibility of expert testimony, the three-judge panel stated that a court must review an expert’s reliance material to determine whether it is derived from “sound and well-founded methodology that is support by some expert consensus in the appropriate field” particularly in cases of “novel theories of causation.”  Id. at 350.

At trial, Dr. Webber and Dr. Moline opined that non-asbestiform cleavage fragments can cause mesothelioma, but failed to provide any data to support that opinion. In fact, Plaintiffs’ experts admitted no studies had been performed to demonstrate that non-asbestiform fragments can cause mesothelioma. Additionally, the Appellate Division found that neither expert could demonstrate that their sources would be relied upon by other experts to establish causation. Accordingly, the Appellate Division ruled that the trial court failed to assess the methodology and underlying data used by the experts and mistakenly exercised its discretion in permitting Drs. Webber and Moline to testify regarding non-asbestiform cleavage fragments.

The Lanzo decision will likely govern future talc litigation as it will require trial judges to play a more proactive role in adjudging both the methodology used by experts to arrive at their opinions as well as the underlying data used to form those opinions.

Hoagland, Longo, Moran, Dunst & Doukas successfully defended Whittaker, Clark & Daniels in this matter. Prior to trial, Whittaker was granted summary judgment and the claims against it dismissed with prejudice. If you have a question about this decision, talc asbestos litigation or other environmental matters, please contact Daniel R. Kuszmerski or Kristi Luzzetti at (732) 545-4717.