Show Me the Study: New Jersey Appellate Division Reverses Verdict in Talcum Powder Tort Case Because Causation Testimony of Plaintiffs’ Experts Had No Scientific Basis
Whether in environmental litigation (as we reported here) or in tort cases, expert testimony is often required to explain complex scientific concepts and, crucially, to establish a causal connection between exposure to a given substance and an adverse health or environmental effect. In its recent decision in Lanzo v. Cyprus Amax Minerals Company, the New Jersey Appellate Division reminded litigants of the importance of the court’s “gatekeeping” function when it tossed out a nine-figure judgment because the trial court had admitted testimony from the plaintiffs’ experts that lacked a proper scientific basis. The appellate court also held that the trial court had erred when it denied the motion for a separate trial of one defendant who was likely harmed by an adverse inference instruction that was required because of another defendant’s spoliation of important evidence.
The plaintiffs, a husband and wife, had sued Johnson & Johnson Consumer Inc. (JJCI), Imerys Talc America, Inc. (Imerys), and a large number of other defendants in 2016, alleging that the husband had contracted mesothelioma from his use of JJCI’s talcum powder products. Imerys had acquired a business that supplied talc to JJCI in 2011. The key issues in the case were whether the talc used by JJCI contained asbestos, which is known to cause mesothelioma, and whether certain other minerals found in the talc could also cause mesothelioma.
Two of the plaintiffs’ experts testified that “non-asbestiform” minerals that are similar in size to asbestiform minerals can cause mesothelioma. This was crucial testimony, as the parties disputed whether the talc used by JJCI contained any asbestiform minerals. Neither expert, however, had conducted any studies, analysis, or research that provided a scientific basis for those opinions. Admitting their testimony on non-asbestiform, said the Appellate Division, was reversible error under the standard articulated in the New Jersey Supreme Court’s opinion in In re Accutane Litigation, which “distilled” the factors set forth in the U.S. Supreme Court’s 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.
Rather than “general acceptance” in the relevant scientific community, Accutane requires that expert opinions on causation be based on “a sound, adequately-founded scientific methodology” involving data and information of the type that experts in that field use. Even testimony based on “novel” theories of causation may be admitted, but it must still satisfy this same standard. Merely citing another scientist’s conclusion or opinion is not enough; the reports or articles upon which the expert relies must themselves be based on sound methodology and data.
The Appellate Division painstakingly reviewed the testimony of both experts and found that neither expert met this standard. One expert relied on four published authorities in support of his opinion that non-asbestiform minerals can cause mesothelioma, but each fell short: one did not distinguish asbestiform and non-asbestiform fibers; the second stated an unsupported opinion and was later “clarified” in a way that undermined that opinion; and the third and fourth did not cite any scientific studies. The authorities cited by the second expert suffered from the same weaknesses.
The court also held that the trial court had erred in denying JJCI’s motion for a separate trial after granting the plaintiffs’ motion for an adverse inference instruction against Imerys for spoliation of evidence. Imerys had discarded talc samples over a number of years, and though there was no evidence that it had done so intentionally, its failure to preserve the samples, even when it was aware of talc asbestos litigation going back to the 1970s, warranted a jury instruction that it could infer that the missing evidence may have helped the plaintiffs’ case and harmed Imerys’s defense. Even though the trial court instructed the jury that any such inference it might draw should be limited to Imerys and not extend to any other defendant, the prejudicial effect on JJCI was obvious and unavoidable; it would be “difficult, if not impossible” for a juror who inferred that the talc supplied to JJCI by Imerys and its predecessors contained asbestos to avoid making the same finding as to the talc that JJCI used in its products.
Lanzo reminds lawyers and litigants of the high stakes involved in the presentation of expert testimony and of the importance of ensuring that an expert rely on more than supposition and speculation – and more than other scientists’ supposition and speculation – in formulating opinions about causation. Expert opinions cannot simply rely on others’ opinions or articles when those sources also lack a proper scientific methodological basis. The decision also highlights the need to bifurcate trial if one defendant’s conduct (e.g., discarding samples) leads to an adverse inference that may significantly harm other defendants in the case.
The Appellate Division’s decision and reversal of the trial court rulings on scientific opinions and evidence in this complex case apply to more than products liability suits. Lanzo provides important guidance to environmental and other practitioners about the challenges and dangers that may be lurking in expert testimony and the underlying scientific evidence that may (or may not) support it. While some liability statutes do not require proof of causation in the traditional sense, plaintiffs often must rely on expert testimony to establish a connection or nexus between a polluting activity and an environmental impact. Environmental litigators, like products liability litigators, must heed the lessons of Lanzo. With respect to both their own experts and their adversary’s experts, practitioners should conduct thorough examinations of the methods of both the experts and any sources on which the experts have relied.