In Barden v. Johnson & Johnson, et al., Case Nos. A-0047, 48, 49 & 50 – 20 (NJ App, October 3, 2023), the NJ Appellate Court pulverized a multimillion-dollar verdict for cancer patients alleging that tainted Johnson & Johnson’s talcum powder caused their illnesses, cementing the Garden State’s reputation as an emerging standard-bearer for expert witness testimony
After being denied in its second attempt to resolve talc lawsuits through a bankruptcy ploy, Johnson & Johnson is doubling down on another tactic it has used to negate some of the 30,000-plus claims it faces.
Here, a New Jersey appeals court vanquished a $223 million jury award to four plaintiffs who claimed asbestos in the company’s iconic baby powder caused their cancer. The Superior Court ruled that a lower court should not have allowed jurors to hear the testimony of three scientific experts. The hefty award was initially set in 2020 at $750 million before a judge reduced it, citing state limits on punitive damages.
During the 33-day trial, the court denied three of defendants’ motions in limine to exclude three experts and refused to conduct the NJ equivalent of a Rule 104 hearing. On appeal, defendants allege that the trial court erred during the evidentiary trial when it allowed plaintiffs’ experts to testify that non- asbestiform versions of the six asbestiform minerals, called “cleavage fragments,” could cause mesothelioma.
Specifically, defendants alleged that the court abused its discretion when it denied their motions seeking N.J.R.E. 104 hearings because the testimony of the experts, Webber, Moline, and Longo, was unreliable, not supported by generally accepted methodologies, and unsupported by the facts in the record. NJ applies the Daubert factors.
Recognizing that a trial court’s failure to perform its gatekeeping function by allowing experts to testify concerning untested opinions is error clearly capable of producing an unjust result, the appellate court reversed and remanded for a new trial.
“The trial court misapplied the well-established judicial gatekeeping procedures required by our courts and the error was not harmless in regard to the testimony,” the court wrote. “Therefore, we reverse and remand for a new trial.”