On August 29, 2019, in a unanimous decision, the Appellate Court affirmed our client, Whittaker Clark & Daniels’ defense verdict in the first consumer cosmetic talc/asbestos end-product trial in New Jersey. This matter was tried, and argued on appeal, by Alan Dunst on behalf of WCD. It should be noted that unlike other asbestos cases, this one proceeded under the New Jersey Products Liability Act, which allowed the use of “state of the art” as a defense. At the conclusion of the 19 day trial, the jury found not only that the talc or talcum powder did not require a warning but also that the alleged danger of talc contamination with asbestos was not known or knowable at the time of sale and accordingly the product was fit, suitable and safe.
Plaintiff’s appeal hinged on three arguments: the admissibility of “vintage” samples of talc products purchased by plaintiffs’ lawyers on eBay; portions of WCD’s testimony constituting inadmissible hearsay; and admission of a 1986 letter signed by the Acting Associate Commissioner for Regulatory Affairs for the FDA. The Court held that Plaintiff simply, but undeniably, failed to present any competent evidence establishing the uninterrupted chain of custody of the samples necessary to authenticate them. Thereby agreeing with the trial court that the eBay talc products were inadmissible. As for the testimony, the Court found that most of it was rooted in the documents being relied on, and to the extent any of it was based on hearsay, it was harmless error to allow it. Lastly, since the trial court did not hold a Rule 104 hearing, it was found to be hearsay, but based on the years of the letter when compared to Plaintiff’s use of the product, the Court found it to be harmless error.