DAVID FISHBAIN, ETC. VS. COLGATE-PALMOLIVE COMPANY (L-5633-13, MIDDLESEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 29, 2019
• Docket: A-1786-15T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1786-15T2

DAVID FISHBAIN, individually and as executor ad prosequendum of the ESTATE OF LINDA FISHBAIN,

Plaintiff-Appellant/ Cross-Respondent,

v.

COLGATE-PALMOLIVE COMPANY; THE SCOTTS COMPANY, LLC; UNION CARBIDE CORPORATION; UNIVERSAL RAZOR INDUSTRIES, individually and as successor-in-interest to and d/b/a The Shulton Group and/or Shulton, Inc.; BRENNTAG NORTH AMERICA, as a successor-in-interest to Mineral Pigment Solutions, Inc., as a successor-in-interest to Whittaker, Clark & Daniels, Inc.; BRENNTAG SPECIALTIES, INC. f/k/a Mineral Pigment Solutions, Inc., as a successor-in-interest to Whittaker, Clark & Daniels, Inc.,

Defendants,

and SHULTON, INC., individually and as successor to The Shulton Group and/or Shulton, Inc.; THE PROCTOR & GAMBLE COMPANY, as successor- in-interest to the Shulton Group and/or Shulton Inc.; WHITTAKER, CLARK & DANIELS, INC.; and WYETH HOLDINGS CORPORATION, f/k/a American Cyanamid Company, individually and as successor-in- interest to The Shulton Group and/or Shulton, Inc.,

Defendants-Respondents/ Cross-Appellants. _________________________________

Argued October 3, 2018 – Decided August 29, 2019

Before Judges Fuentes, Vernoia and Moynihan.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5633-13.

Amber R. Long argued the cause for appellant/cross- respondent (Szaferman, Lakind, Blumstein & Blader, PC, and Levy Konigsberg, LLP, attorneys; Robert E. Lytle, Jeffrey P. Blumstein, and Moshe Maimon, on the briefs).

Alan I. Dunst argued the cause for respondent/cross- appellant Whittaker, Clark & Daniels, Inc. (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Richard J. Mirra, of counsel; Richard J. Mirra, Anita S. Cohen, Aime C. Kalac, and Kathryn F. Suchman, on the briefs).

A-1786-15T2 2 Henry L. Miller, III, argued the cause for respondents/ cross-appellants Shulton, Inc., The Proctor & Gamble Company and Wyeth Holdings Corporation (Goldberg Segalla LLP, and John D. Cosmich (Cosmich Simmons & Brown, PLLC) of the Mississippi bar, admitted pro hac vice, attorneys; Henry L. Miller, III, Anita Hotchkiss, John D. Cosmich, and LaKeysha Greer Isaac (Cosmich Simmons & Brown, PLLC) of the Mississippi bar, admitted pro hac vice, on the briefs).

PER CURIAM

Plaintiff David Fishbain, individually and as executor and executor ad

prosequendum of the Estate of Linda Fishbain, appeals from a final judgment

entered following a jury verdict rendered in favor of defendants Shulton, Inc.

(Shulton), The Proctor & Gamble Company, Wyeth Holdings Corporation

(Wyeth),1 and Whittaker, Clark and Daniels, Inc. (WCD). More particularly,

plaintiff challenges an order granting defendants' motion to exclude evidence

concerning vintage samples of the products plaintiff alleges caused personal

injuries to, and the death of, Linda Fishbain, the court's allowance of alleged

hearsay testimony from a WCD representative and the court's decision

permitting defense counsel to reference and show the jury a 1986 letter from the

1 Plaintiff filed suit against Shulton individually and as successor to Shulton, Inc., which is also variously referred to as The Shulton Group, but the record reflects that Shulton's correct name is Shulton, Inc. Plaintiff filed suit against The Proctor and Gamble Company and Wyeth as successors-in-interest to Shulton, Inc. A-1786-15T2 3 Food and Drug Administration (FDA) during opening arguments. Defendants

cross-appeal, arguing that if plaintiff's appeal is successful and the matter is

remanded for trial, there are numerous errors in the court's pretrial and trial

rulings that should be reversed. Based on our review of the record in light of

the applicable legal principles, we affirm the jury verdict and the court 's final

judgment and dismiss defendants' cross-appeals as moot.2

I.

On April 3, 2013, Linda Fishbain was diagnosed with epithelioid

malignant mesothelioma. She and her husband, plaintiff David Fishbain, 3 filed

a complaint asserting strict liability, failure to warn, product liability claims, and

a loss of consortium claim against defendants Shulton, The Proctor & Gamble

Company, WCD, Wyeth and other defendants alleging Linda Fishbain's

exposure to asbestos in various consumer talc products—to which she was

2 Shulton and WCD cross-appeal from various orders of the trial court. It is unnecessary to address the cross-appeals because we affirm the final judgment dismissing plaintiff's complaint. 3 We recognize Linda Fishbain was a plaintiff when the complaint was filed, that she passed away during the trial and that David Fishbain prosecutes the appeal on his own behalf and as executor ad prosequendum of Linda Fishbain's estate. Our reference to David Fishbain as the singular plaintiff is for purposes of clarity and consistency only and is not intended as any disrespect to Linda Fishbain.

A-1786-15T2 4 exposed from 1964, when she was nine years old, through the late 1970s —

caused her to develop mesothelioma. 4 In general terms, the complaint alleged

WCD supplied asbestos-contaminated talc to Shulton, Shulton incorporated the

talc into its consumer talc products, and Linda Fishbain used and was exposed

to the asbestos-contaminated products, which caused the mesothelioma that

resulted in her death.

The Rule 104 Hearing: The Alleged Vintage Samples

Prior to trial, defendants moved to preclude plaintiff's liability expert,

Sean Fitzgerald, from testifying. Defendants challenged the scientific reliability

of the testing methodology used by Fitzgerald to arrive at his opinion that the

various Shulton talc products Linda Fishbain either used or was exposed

contained asbestos. This included the purported vintage Shulton samples, as

well as ore samples from the source mines of the talc used in Shulton's products.

Defendants also argued that even if the court determined Fitzgerald's testing

methodology was scientifically reliable, plaintiff should be barred from

introducing at trial the purported vintage samples of talc products—Cashmere

Bouquet, Desert Flower and Old Spice, which had been purchased in 2012 on

4 The complaint and first amended complaint included claims against other defendants that are not pertinent to the disposition of this appeal. A-1786-15T2 5 the website eBay—and Fitzgerald's testimony concerning his testing of the

samples, because they were not sufficiently authenticated under N.J.R.E. 901.

Shulton manufactured the Desert Flower and Old Spice products. 5 The

Colgate Palmolive Company (Colgate Palmolive) manufactured Cashmere

Bouquet.6 Plaintiff claimed the vintage Shulton samples, which were

purportedly produced in the 1960s and 1970s during the time Linda Fishbain

alleged she either used or was exposed to them, were properly authenticated.

Plaintiff contended that, consequently, the samples should be admitted at trial

and Fitzgerald should be permitted to testify about the results of his testing of

the products for asbestos.

Plaintiff offered Fitzgerald as an expert in geology, microscopy and

asbestos analysis. The court conducted a N.J.R.E. 104(a) hearing and issued a

detailed written statement of reasons rejecting defendants' claim that

Fitzgerald's opinions were not based on a scientific methodology of the type

reasonably relied on by experts in the fields of Fitzgerald's expertise. However,

5 The Old Spice samples consisted of Old Spice Talcum for Men and Old Spice Traveler Set products. 6 We do not address Fitzgerald's testing of the purported samples of Cashmere Bouquet because plaintiff settled his claims against Colgate Palmolive during trial.

A-1786-15T2 6 pertinent to this appeal, the court barred the admission of three purported vintage

samples of Shulton products: Old Spice Talcum for Men, Old Spice Traveler Set

and Desert Flower. The court found these samples were not properly

authenticated under N.J.R.E. 901 because plaintiff failed to present competent

evidence establishing an unbroken chain of custody of the samples during the

over-forty-year period between their alleged production in the 1960s and 1970s

and their 2012 purchase on eBay.

The court explained that plaintiff attempted to authenticate the three

purported vintage samples by relying on the affidavit of Leah Kagan, an attorney

with plaintiff's counsel's law firm, who in turn relied in part on the affidavit of

Eileen Bouvier, a paralegal at Early, Lucarelli, Sweeney & Melsenkothen.

Bouvier's affidavit in part incorporated three prior affidavits she filed in another

matter. In her affidavit, Bouvier explained that she purchased the three samples

on eBay in 2012 from three different sellers in connection with another matter. 7

The court noted that Bouvier said she purchased the Old Spice Traveler

Set sample from an individual in Texas known to Bouvier only as "baylorfan82"

who provided the following information about the purported sample in an

7 The other matter was identified as Kaenzig v. Charles B. Chrystal Co., No. A- 2512-13 (App. Div. Mar. 27, 2015). A-1786-15T2 7 electronic transmission: "The only thing that I can tell you is that I found it

when cleaning out my father's house. I think he bought it at a Globe store, which

isn't in business anymore." Kagan further attested to conducting research that

showed "Globe Discount City" was in business from 1960 through 1977 and did

not sell used products. The court noted that Kagan also asserted that a picture

of an Old Spice Traveler Set in a Shulton catalog from the period "1960s-1973"

"matches" the purported sample provided by baylorfan82.

The court also addressed the purported vintage sample of Old Spice

Talcum for Men, noting that Bouvier received an electronic transmission from

an individual, known to Bouvier only as "ladunkerly@[]," who sold the product

to her. The transmission stated: "I was helping my mom do some downsizing

and it was in my dad's linen closet. I am assuming that one of us kids gave it to

him for Christmas or Father['s] Day or something." The court further noted that

Bouvier did not provide any information concerning her purchase of the Desert

Flower sample.

The court explained that Bouvier detailed her examination of each of the

samples when she received them, indicated that each was intact and had not been

tampered with following receipt, and further described what was done with each

sample after she received them. Kagan's affidavit included as an attachment the

A-1786-15T2 8 certification of Steven Compton, PhD, a research scientist who participated in

an analysis of the samples, who stated the samples were in their original

packaging and that the Desert Flower sample was in a container with parchment

paper attached that he had to tear open to access the talcum powder. The court

noted the evidence submitted from three experts that tampering with the talcum

powder in the samples to achieve the consistent test results obtained by

Fitzgerald would be impossible.

The court reasoned that plaintiff presented only two expert witnesses at

the N.J.R.E. 104 hearing, Fitzgerald and Dr. James Weber, and that neither of

these witnesses provided competent evidence supporting the authenticity of the

samples during the over-forty-year period following Linda Fishbain's alleged

use and exposure to similar products and Bouvier's receipt of them. 8 The court

noted Weber's testimony that "he had no way of knowing" whether the product

that left the Shulton production facility over forty years earlier "was the same

product he tested" in the samples obtained by Bouvier. The court rejected

plaintiff's reliance on Kagan's and Bouvier's representations concerning the

samples because they did not "have any personal knowledge" and their

8 The court did not base its finding on the chain of custody on what occurred following Bouvier's receipt of the samples. A-1786-15T2 9 representations concerning the samples "merely pass[ed] along hearsay upon

hearsay." The court concluded that plaintiff failed to present sufficient evidence

of an unbroken chain of custody authenticating the samples and barred their

admission at trial and Fitzgerald's testimony concerning his testing of them.

The court also barred the evidence and testimony under N.J.R.E. 403,

finding that plaintiff offered no reliable evidence concerning the identification

of the sellers of the samples and that defendants would therefore be d eprived of

their right to cross-examine the sellers at trial. Stated differently, the prejudicial

effect of these questionable samples far outweighed their minimal probative

value. As the court explained: "At a minimum, the testimony of the respective

sellers of the [samples] would be required" at trial. Plaintiff, however, never

identified the sellers of the samples, beyond the two email addresses included in

the electronic transmissions related to the Old Spice Traveler Set and Old Spice

Talcum for Men samples, and never called the sellers as witnesses at trial .

The court entered an order barring admission of the three purported

Shulton vintage samples at trial and testimony concerning Fitzgerald's testing of

them. The matter then proceeded to trial.

A-1786-15T2 10 The Trial

The trial occurred over nineteen days. The evidence showed that Linda

Fishbain was born in 1955 in Somerset County, where she lived in a number of

different locations with her family until they moved to Florida in 1969. She

lived with her parents until 1980, when she married plaintiff.

While living in New Jersey, Linda Fishbain and her family visited their

relatives about twelve times per year in nearby Manville, where a manufacturing

plant owned by Johns Manville produced asbestos-containing products. Linda

Fishbain testified that three of her childhood friends died of mesothelioma, and

her mother testified that two of her close friends from the grammar school they

attended in Manville died of the disease. 9

In the different homes in which Linda Fishbain lived with her family prior

to her marriage in 1980, she shared a bathroom either with her entire family or

her siblings, a sister and two brothers. At age nine or ten, in the mid-1960s,

Linda Fishbain began using talcum powder on a daily basis following showers

or baths. She first used Cashmere Bouquet, began using Desert Flower when

she was eleven or twelve, and started using Friendship Garden between ages

9 Linda Fishbain's videotaped discovery and bene esse depositions were played for the jury.

A-1786-15T2 11 eleven and thirteen. Her father used Old Spice talcum powder after his showers.

Her sister, Isabele D'Achille, also used talcum powder every day,

including at different times Cashmere Bouquet, Desert Flower and Friendship

Garden. Linda Fishbain said the bathroom window was usually closed when she

and her sister applied the talcum powder and that the air in the bathroom would

become very dusty. She also was present in the bathroom when her mother

applied talcum powder.

Linda Fishbain denied using Old Spice talcum powder or being present

when her father used it, but said she helped clean the family's bathrooms each

week and recalled the floors were full of talcum powder, which was difficult to

remove. She took the bath rugs outside to shake them, producing "[a] lot of

dust." She did not keep any of the talcum powder products that she had used

while in her family's homes and none were ever tested for asbestos

contamination.

Linda Fishbain told her doctors about her potential exposure to asbestos

from growing up near, and visiting her relatives by, the Manville asbestos plant,

but did not mention her exposure to talcum powder. She first learned that

cosmetic talcum powder might contain asbestos a few months prior to her

deposition.

A-1786-15T2 12 Linda Fishbain was diagnosed with epithelioid malignant mesothelioma

in April 2013. She thereafter underwent various treatments including

chemotherapy, a pneumonectomy, radiation and a clinical vaccination trial for

mesothelioma, and passed away on October 5, 2015, at age sixty.

Mesothelioma is a cancer of the mesothelial cells and is known as a "signal

tumor" because of its strong association with asbestos, which is a naturally

occurring mineral. There are six asbestos minerals that fall into two groups:

chrysotile, a serpentine rock where the silicate forms into "tight little scroll[s],"

which is the most common type of asbestos used in products; and five

asbestiform varieties of amphiboles, including tremolite, anthophyllite,

actinolite, crocidolite and amosite, which crystallize into long, thin fibers.

Although amphiboles can be found adjacent to talc deposits, they are usually in

a non-asbestiform habit. Asbestos fibers are microscopic and may remain

airborne for hours or days. Inhalation of the fibers can cause mesothelioma.

Asbestos and talc can form in the same bands of rock. Talc is a sheet

silicate, which stays "platey" or flat. Cosmetic talc is ninety-five percent pure

talc with the remaining five percent consisting of associated minerals such as

chlorite, quartz, and dolomite. The types of asbestos most likely to be found in

talc are chrysotile, tremolite, and anthophyllite.

A-1786-15T2 13 WCD distributed products to various industries, including cosmetic talc

to Shulton, which manufactured Old Spice, Friendship Garden, and Desert

Flower talcum powder products. 10 William Ward, Shulton's corporate

representative, testified his review of Shulton archives revealed no reference to

WCD or its testing of talc or any certification that the talc WCD sold to Shulton

was asbestos-free. Ward explained that there were different packaging formats

for Friendship Garden and Desert Flower products sold by Shulton throughout

the 1960s and 1970s, and that they changed periodically.

The jury was shown the video recording of the deposition of Wilfred

Kaenzig and read an excerpt from his trial testimony in another case. 11 Kaenzig

began working for Shulton in August 1963. He testified that in 1966 Shulton

acquired a plant in Mays Landing, where it manufactured colognes and talcum

powder items such as Old Spice, Desert Flower, and Friendship Garden.

Kaenzig testified that during the time he worked at the Mays Landing plant,

WCD supplied ninety-nine percent of the talc used by Shulton. Kaenzig never

10 In 1971, American Cyanamid acquired Shulton, which became a subsidiary. American Cyanamid was later sold to Wyeth, and in 1990, the Old Spice product line was sold to The Proctor & Gamble Company. 11 Kaenzig v. Charles B. Chrystal Co., No. A-2512-13 (App. Div. Mar. 27, 2015). A-1786-15T2 14 saw any asbestos warning labels on the bags of raw talc WCD sent to Shulton.

He did not know where WCD obtained the talc or who supplied Shulton with

raw talc before 1966.

According to Kaenzig, in the late 1970s, Shulton received complaints

about a white powder residue on some of its "pack-out items" and recalled a

light dusting of white powder throughout the plant. In the late 1970s, Shulton

moved its talc operation to Memphis, Tennessee: Kaenzig did not know the

identities of the suppliers of talc to Shulton after that time. He never saw

warnings about asbestos on Old Spice or Desert Flower products and said no

one ever warned him of the health hazards associated with talc.

Theodore Hubbard testified as WCD's corporate representative in

response to a notice in lieu of subpoena served by plaintiff and explained that

WCD sold the following grades of cosmetic talc to Shulton: 141 from a mine in

Alpine, Alabama; 2450 and 643 from the Hitchcock Mine in North Carolina;

and 1615 from a mine in Val Chisone, Italy.

Hubbard, who began working at WCD in 1978, testified the company

started testing for possible asbestos contamination in August 1971, when it

learned of the FDA's interest in the possible presence of asbestos in talc. He

explained that in an October 6, 1971 letter, the FDA stated it "generally agreed

A-1786-15T2 15 that most talcum powders of major manufacturers [we]re relatively free of

asbestos," but that it was "working on the details of a laboratory procedure for

the analysis of asbestos in talcum powders."

Hubbard said WCD initially outsourced the testing of talc to other

laboratories because it lacked the in-house capabilities, and the testing

methodology used by those laboratories in 1971 was adopted in 1976 by the

Cosmetic Toiletry and Fragrance Association (CTFA), a trade association for

companies selling cosmetics, and later recommended by the FDA.

Hubbard said WCD began its testing program for talc because WCD had

an obligation to ensure it did not supply cosmetic companies with defective

products. Hubbard reviewed the results of hundreds of X-ray diffraction tests

of WCD's talc and reported that probably four were positive for asbestos. He

testified WCD never sold contaminated talc to Shulton or any other customer

for use in cosmetic products. WCD received pre-shipment samples of cosmetic

talc, and if the tests revealed asbestos, the shipments were canceled.

Hubbard stated that after testing began in 1971, WCD never warned

Shulton about the potential danger of asbestos contamination in talc because it

never found asbestos in any product sold to Shulton. He also explained that the

FDA never required that a warning be placed on talcum powder products sold

A-1786-15T2 16 to the public. He confirmed that in a 1986 letter the FDA denied a consumer's

petition for a requirement that asbestos warning labels be placed on cosmetic

talc products. He explained the letter noted the significant improvement in the

quality of cosmetic talc in the late 1970s, and that even if asbestos was present,

"the levels were so low that no health hazard existed."

Fitzgerald, who was qualified as plaintiff's expert in geology, microscopy,

and asbestos analysis, testified that from 1955 to 1980, WCD's grades of talc

141, 1615, 643 and 2450, and Shulton's Desert Flower, Friendship Garden, and

Old Spice talcum powder products were "regularly and consistently

contaminated with asbestos." In forming his opinion, Fitzgerald relied on: (1)

articles about asbestos and those grades of talc that WCD obtained from the

three mines and were used in Shulton's products; (2) historical testing of talc

from the three source mines; and (3) his own testing of raw talc ore samples.

According to Fitzgerald, the geology of the three source mines and the

historical testing confirmed asbestos contamination in the grades of talc supplied

by WCD for use in Shulton's Old Spice, Friendship Garden and Desert Flower

talcum powder products. For example, in 1972, ES Laboratories tested talc for

WCD and found chrysotile and anthophyllite. In 1973, tests performed for WCD

on talc from the source mines in Alabama, North Carolina and Italy showed

A-1786-15T2 17 chrysotile and tremolite. A 1977 test of grade 1615 talc from the Val Chisone

mine in Italy detected tremolite. In 1982, at WCD's request, New York

University conducted a test of grade 1615 talc from the Val Chisone mine and

found it was two percent tremolite and 0.5 percent chrysotile.

Fitzgerald said that his tests of talc grades 141 from the Alabama mine

and 1615 from the Italian mine also showed asbestos contamination. He tested

the talc using the glove box method, defined by the Environmental Protection

Agency (EPA) as a "sealed test chamber" for fiber generation and air sampling.

Fitzgerald explained that, by "simulating the product use," the aerosolization of

the raw talc confirmed the presence of asbestos inside the glove box and yielded

results that were consistent with his review of the geology and historical tests. 12

Fitzgerald confirmed the presence of asbestos using other methods such

as diffraction and testified that the results of the follow-up tests revealed the

presence of chrysotile and anthophyllite in both grades of the talc ore. He also

tested rocks he collected from the mine in North Carolina, and detected the

presence of "magnesium, silicon, calcium and iron consistent with the chemical

formula for the amphibole tremolite." He opined that one hundred percent of

12 The jury watched a video of the aerosolization of talc inside the glove box. The record does not include the video. The video, however, is not an issue on appeal. A-1786-15T2 18 the talc from the North Carolina mine was contaminated with asbestos, even

though some tests failed to detect any contamination.

Fitzgerald conceded the FDA had approved only bulk testing of talc, and

acknowledged that the EPA criticized the indirect method of breaking apart

complex structures because it led to higher counts than the direct method.

Fitzgerald further acknowledged that other historical studies did not detect

tremolite or chrysotile in the source mines. In support of his opinions, Fitzgerald

relied on the deposition testimony of Hubbard and Kaenzig that WCD provided

Shulton with the raw talc from the three source mines for Shulton's use in its

Old Spice, Desert Flower and Friendship Garden products. He did not know

who supplied the raw talc to Shulton before 1966.

Dr. Jacqueline Moline, plaintiff's expert in occupational and

environmental medicine, and asbestos and asbestos disease, testified the

presence of asbestos in cosmetic talc has been confirmed and scientific

communities generally agree there is no safe level of exposure. She explained

that exposure to asbestos could cause mesothelioma, but recognized the vast

majority of individuals who had occupational or environmental exposure to

asbestos did not develop mesothelioma. According to Moline, a person could

develop mesothelioma after exposure to a very low dose of asbestos, although a

A-1786-15T2 19 longer exposure made it more likely.

Moline said Linda Fishbain breathed in asbestos fibers that escaped into

the air in the confined space of the bathrooms shared with her family members

and that asbestos fibers also could have gotten into the ducts and other parts of

the house, causing continuous exposure. She noted that vacuuming or sweeping

asbestos-covered floors could make the problem worse by bringing the asbestos

back into the air. Moline did not know whether Linda Fishbain was significantly

exposed to asbestos growing up near the Manville plant, explaining she had no

idea about wind patterns or actual exposure. She also testified that asbestos

could linger in the air for hours, "if not days," and that the typical latency period

from exposure to development of the disease was "30, 40, 50" years. In Moline's

opinion, Linda Fishbain's use of and exposure to Shulton's and WCD's talc

products were substantial factors in causing her mesothelioma.

Moline had no personal knowledge that the Shulton products actually

contained asbestos or whether WCD supplied Shulton with asbestos-

contaminated talc. Based on the information provided to her, she assumed WCD

supplied the talc to Shulton for its talcum powder products and that "the talcum

powder products that [Linda Fishbain] was exposed to contained asbestos." She

conceded that if either of those assumptions was incorrect, her conclusion that

A-1786-15T2 20 Shulton and WCD caused the mesothelioma was invalid. When Moline prepared

her expert report, she also offered the opinion that Linda Fishbain's exposure to

Scotts' lawn care products and Colgate-Palmolive's Cashmere Bouquet talcum

powder were substantial contributing factors causing her mesothelioma.

Mark Taragin, M.D., an internist with a master's degree in public health,

testified as defendants' expert in the fields of epidemiology and the assessment

of diseases from exposure to asbestos. He reviewed medical records,

depositions and expert reports and concluded Linda Fishbain's use of cosmetic

talcum powder was not a substantial contributing factor in causing her

mesothelioma.

Taragin said there was no scientific literature or epidemiological study

suggesting the use of or exposure to cosmetic talcum products caused

mesothelioma, or studies indicating that miners and millers of cosmetic talc had

an increased risk of developing the disease. Taragin viewed the lack of such

studies as "critical information" because "the highest exposure is going to be

people mining the substance." He referred to the 1986 FDA letter regarding the

agency's views that: (1) "[t]he risk from a worse case estimate of exposure to

asbestos from cosmetic talc will be less than the risk from environmental

background levels of exposure to asbestos (non-occupational exposure over a

A-1786-15T2 21 lifetime)"; and (2) no health hazard existed even when asbestos was present

because the levels of asbestos were so low.

Taragin said thirty to fifty percent of women in the 1960s and 1970s used

cosmetic talc and that, given that rate of use, he "wouldn't be at all surprised to

find that a woman with mesothelioma or any cancer is going to have a frequent

use of cosmetic talc because that's what was common." In Taragin's opinion,

"[Linda] Fishbain's [fourteen] years in the vicinity of Johns Manville was a

substantial contributing factor towards her mesothelioma." He also considered

it significant that Linda Fishbain and her family visited an uncle who lived in

Manville, noting that approximately twelve visits a year over fourteen years

meant she spent the equivalent of four months in Manville.

Taragin explained that the documentation in Linda Fishbain's medical

records "jive[d] with the literature as to why she would have mesothelioma." He

referred to a 1997 article by Michael Berry of the Department of Health stating

that women who lived in Somerset County, excluding Manville and Johns

Manville employees, were at twice the risk of the comparison group of

developing mesothelioma. Another study by the State of New Jersey identified

cancer clusters from 1979 through 2001 and found that women who lived in the

vicinity of Manville had a "15 fold" increase in their risk of developing

A-1786-15T2 22 mesothelioma. Excluding people who lived in Manville and worked at the plant,

Taragin determined that women who lived in the same areas as Linda Fishbain

had an increased "12 fold risk." He said there was no known safe level of

exposure to asbestos, but that some literature suggested exposure at an early age

placed people more at risk for developing mesothelioma.

Taragin acknowledged on cross-examination that the FDA also

recognized in its 1986 letter that asbestos inhalation over extended periods was

hazardous to humans, that the agency was aware that "some cosmetic talc

produced in the 1960's and 1970's did contain asbestiform minerals," and that

the agency found significant improvement in the quality of cosmetic talc in the

latter part of the 1970s. He acknowledged that he could not say with medical

certainty that Linda Fishbain's fourteen years in the vicinity of the Johns

Manville plant were a substantial contributing factor in causing her

mesothelioma, but only a possibility.

Alan Segrave testified as defendants' expert in geology, mineralogy and

microscopy "with an emphasis on the testing of asbestos-containing materials

and talc, and the methodology associated with it." He managed the asbestos

laboratory for Bureau Veritas North America, "the world leader in testing,

inspection and certification in many different industries," and had thirty years

A-1786-15T2 23 of experience in testing materials for asbestos.

Segrave opined that the test data from 1971 through 1994 and the results

of Fitzgerald's testing of the talc ore samples did not support the conclusion that

Linda Fishbain was exposed to asbestos-contaminated talc. Segrave believed

the scientific literature was consistent with his opinion that the three mines that

supplied talc to Shulton were not regularly and consistently contaminated with

asbestos. He relied on published literature by geologists who had studied the

deposits in those mines and on epidemiological studies on miners of talc who

did not develop any increased incidence of disease. He also relied on 309 x-ray

diffraction charts from WCD's testing of talc samples between 1971 and 1990,

which included four reports of tremolite or anthophyllite, and the follow-up tests

at his laboratory that found only one sample of grade 2450 from North Carolina

was positive for tremolite and the other three samples were inconclusive.

Instead, he mostly found the "accessory minerals" often associated with good

quality talc such as chlorite, quartz, and dolomite.

Segrave tested one of the rocks collected by Fitzgerald at the North

Carolina mine and determined it contained hornblende, a non-asbestiform

amphibole mineral that contained aluminum. Segrave believed Fitzgerald 's

failure to detect aluminum led him to misidentify the mineral as tremolite and

A-1786-15T2 24 noted that most amphiboles found were non-asbestiform and that it was very

rare to find asbestiform amphiboles.

Segrave believed Fitzgerald's testing of the raw talc samples was flawed

because a glove box was "not a recognized space to conduct a test for

releasability." He also observed that Fitzgerald tested raw talc, not end products,

explaining that end products such as talcum powder contained additives that

could inhibit the release of asbestos. Even accepting Fitzgerald's methodology,

Segrave said the results of the glove box testing fell below the Asbestos Hazard

Emergency Response Act (AHERA), 15 U.S.C. §§ 2641 to 2656, clearance

criteria and, in his opinion, Fitzgerald's glove box study was not "representative

of a real world exposure or release of asbestos." Segrave concluded that

Fitzgerald did not follow an acceptable protocol for a release study, that he used

a hybrid of methods, that his results could not be reproduced, and that his testing

failed to prove Linda Fishbain had been exposed to asbestos-contaminated talc.

The jury returned a verdict in defendants' favor finding plaintiff failed to

prove: (1) either Shulton or WCD manufactured, sold or distributed a talc

product that was not reasonably fit, suitable and safe for its intended and

foreseeable use because it lacked a warning or because it was defectively

designed; (2) Linda Fishbain used or was exposed to a talc product

A-1786-15T2 25 manufactured, sold or distributed by either defendant that was not reasonably

fit, suitable and safe for its intended and foreseeable use because it lacked a

warning; and (3) Linda Fishbain's use of or exposure to a talc product

manufactured, sold or distributed by either defendant that was not reasonably

fit, suitable and safe for its intended and foreseeable use because of a lack of

warning or a defective design was a substantial factor in causing her

mesothelioma. The jury also determined defendants proved that at the time the

talc products left their control, the danger that they could cause an asbestos-

related disease was not known or knowable and that no practical and technically

feasible alternative design existed that would have prevented Linda Fishbain's

injuries without substantially impairing the reasonably anticipated or intended

essential functions of the talc products. Plaintiff appealed and, as noted,

defendants cross-appealed.

II.

Plaintiff first argues the court erred by barring admission of the three

putative vintage Shulton samples and Fitzgerald's testimony concerning his

testing of the samples. 13 We are not persuaded.

13 The court also barred Fitzgerald from testifying concerning his testing of "vintage Colgate Palmolive samples" consisting of three containers of various

A-1786-15T2 26 "[A] trial court's evidentiary rulings are entitled to deference absent a

showing of an abuse of discretion, i.e., there has been a clear error of judgment."

State v. Nantambu, 221 N.J. 390, 402 (2015) (alteration in original) (quoting

State v. Harris, 209 N.J. 431, 439 (2012)). Under this standard, the trial court's

decision to allow evidence should not be overturned "unless it can be shown that

the trial court palpably abused its discretion, that is, that its finding was so wide

[of] the mark that a manifest denial of justice resulted." State v. Lykes, 192 N.J.

519, 534 (2007) (alteration in original) (quoting Verdicchio v. Ricca, 179 N.J.

1, 34 (2004)). If the trial court does not determine the admissibility of evidence

under the correct legal standard, however, its decision is not afforded any

deference and we review the issue de novo. State v. Reddish, 181 N.J. 553, 609

(2004).

Here, plaintiff challenges the court's determination barring admission of

the three purported vintage Shulton samples and Fitzgerald's testimony about

them because plaintiff failed to authenticate the samples. See N.J.R.E. 901.

"The requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a finding that the

sizes of purported "Colgate Cashmere Bouquet brand talcum powder," and two other talcum powder samples, Talc Ore Grade 1615 and Talc Ore Grade 141. Plaintiff does not challenge the court's order barring that testimony on appeal. A-1786-15T2 27 matter is what its proponent claims." Ibid. This rule of evidence "does not

require absolute certainty or conclusive proof." State v. Mays, 321 N.J. Super.

619, 628 (App. Div. 1999). "The proponent of the evidence is only required to

make a prima facie showing of authenticity." Ibid. After such a showing is

made, the evidence is admissible and the jury decides the ultimate question of

authenticity. Ibid.

"A party introducing tangible evidence has the burden of laying a proper

foundation for its admission." State v. Brunson, 132 N.J. 377, 393 (1993).

Generally, that "foundation should include a showing of an uninterrupted chain

of custody." State v. Mosner, 407 N.J. Super. 40, 62 (App. Div. 2009). Evidence

will usually be admitted "if the court finds 'in reasonable probability that the

evidence has not been changed in important respects or is in substantially the

same condition as when'" the relevant event occurred. Ibid. (citations omitted).

However, the "determination of whether the [proponent] sufficiently established

the chain of custody is within the discretion of the trial court," ibid., and that

"determination will not be overturned in the absence of a clearly mistaken

exercise thereof," State v. Brown, 99 N.J. Super. 22, 27 (App. Div. 1968).

We discern no abuse of discretion in the court's decision barring admission

of the three putative Shulton samples and Fitzgerald's testimony about them. An

A-1786-15T2 28 abuse of discretion occurs "when a decision is 'made without a rational

explanation, inexplicably departed from established policies, or rested on an

impermissible basis.'" US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467-68

(2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).

The court's determination plaintiff failed to demonstrate an uninterrupted

chain of custody of the samples is supported by the lack of any compe tent

evidence establishing an uninterrupted chain of custody during the

approximately forty-year period that elapsed from the samples' alleged

production and distribution in the 1960s or 1970s until they were purchased by

Bouvier in 2012. Plaintiff relies on email transmissions from two individuals

describing assumptions and speculation concerning their respective families'

possessions of the two Old Spice samples, but the individuals are unknown, their

representations are not certified and cannot be verified, and defendants had no

ability to challenge the representations. Moreover, even if the statements

contained in the emails are true, they do not establish an uninterrupted chain of

custody from the date of production of the samples until their delivery to

Bouvier. Indeed, the emails contain only assumptions concerning the manner in

which the samples were obtained and do not include any information or

competent evidence concerning the condition of the samples when they came

A-1786-15T2 29 into each family's possession, the length of the custody of each sample or the

circumstances surrounding possession of the samples. In addition, other than

Bouvier's statement that she purchased the Desert Flower sample on eBay,

plaintiff's proffer concerning that sample is untethered to any evidence

establishing its chain of custody prior to Bouvier's purchase.

The court did not abuse its discretion by barring admission of the samples

and Fitzgerald's testimony. Plaintiff simply, but undeniably, failed to present

any competent evidence establishing the uninterrupted chain of custody of the

samples necessary to authenticate the samples under Rule 901 for the

approximately forty-year period prior to Bouvier's purchases. See Brunson, 132

N.J. at 393; Brown, 99 N.J. Super. at 27.

We are also unpersuaded by plaintiff's claim the court abused its

discretion by finding the samples were not properly authenticated because there

was circumstantial evidence establishing authentication. Plaintiff argues the

circumstances include Bouvier's observations of the condition of the packaging

of the samples when she received them, a defense expert's testimony he had

never seen evidence removed and replaced from a sample prior to testing,

Fitzgerald and Weber's testimony at the N.J.R.E. 104 hearing that it would be

difficult to replace the original talcum powder in the samples with powder

A-1786-15T2 30 containing the concentrations of asbestos Fitzgerald reported finding, and

Bouvier and Compton's representations that the Desert Flower sample included

parchment paper that had to be torn to obtain access to the talcum powder.

In the first instance, one of the circumstances ignored by plaintiff, but

properly recognized by the court, is the lack of any evidence concerning the

chain of custody of the samples prior to Bouvier's purchase of them. In other

words, in its assessment of whether plaintiff established a reasonable probability

that the samples had not been changed in important respects or were in

substantially the same condition as when they were first produced forty years

earlier, see Mosner, 407 N.J. Super. at 62, the court properly recognized and

relied on an important circumstance plaintiff ignores—the absence of any

evidence showing the custody and condition of the samples during that forty-

year period.

Moreover, the record lacks any evidence concerning Bouvier's or

Compton's knowledge of the samples, including the Desert Flower sample, when

they were first produced and, thus, their observation of parchment paper

covering the powder did not establish the condition of the sample forty years

earlier or at any time other than when it was in their possession, and could not

establish whether the condition of the sample was the same or had changed over

A-1786-15T2 31 that period. None of plaintiff's witnesses certified the talcum powder contained

in the samples was the same talcum powder that was included forty years earlier

when the sample containers were produced, and plaintiff's witness, Weber,

testified "he had no way of knowing" whether the product that left the Shulton

production facility over forty years earlier "was the same product" in the samples

obtained by Bouvier that he examined. Fitzgerald similarly testified he did not

know when the samples were produced, the names of the original purchasers,

how many people had used the samples and where they had been stored before

Bouvier purchased them on eBay.

Based on that record, we discern no abuse of discretion in the court 's

finding that plaintiff failed to sustain his burden under Rule 901 to demonstrate

a reasonable probability that the samples were in the same condition as they

were when they left Shulton's production facility forty years earlier. See

Brunson, 132 N.J. at 393 (finding the party offering evidence has the burden to

establish authentication under N.J.R.E. 901). The court's determination was

amply supported by a record devoid of competent evidence demonstrating any

of the circumstances surrounding the possession of the putative samples during

the four decades prior to Bouvier's receipt of the samples from the anonymous

A-1786-15T2 32 sellers. We therefore affirm the court's order barring admission of the samples

and Fitzgerald's testimony about them at trial.

III.

Plaintiff also challenges the admission of portions of Hubbard's testimony

that he provided in his capacity as WCD's corporate representative. Plaintiff

claims Hubbard impermissibly offered testimony concerning information that

predated the commencement of his employment with WCD in 1978, and that the

testimony constituted inadmissible hearsay because it could only have been

based on what he was told by others.

WCD, joined by Shulton, argues the challenged testimony was properly

admitted because Hubbard was designated as WCD's corporate representative

and produced in response to a notice in lieu of subpoena plaintiff issued pursuant

to Rule 1:9-1. WCD argues that because Rule 1:9-1 allows the subpoena of a

corporate representative that is "deposable on its behalf, under [Rule] 4:14-2,"

the designated representative "is not limited to that witness's own personal

knowledge" and therefore Hubbard could properly testify based on what he

learned from others in the corporation.

Defendants' briefs are bereft of any citation to legal authority supporting

the notion that the trial testimony of a corporate designee subpoenaed under

A-1786-15T2 33 Rule 1:9-1 is exempt from the Rules of Evidence and the fundamental

requirement that a witness testify solely to matters within his or her personal

knowledge. N.J.R.E. 602. Rule 1:9-1's reference to Rule 4:14-2 does not expand

the scope of a witness's permissible testimony at trial or create an exception to

Rule 602's prohibition against testimony concerning "a matter unless evidence

is introduced sufficient to support a finding that the witness has personal

knowledge of the matter." N.J.R.E. 602. Rule 1:9-1 defines only the means for

securing the presence at trial of a corporate designee deposable under Rule 4:14-

2—by subpoena or a notice in lieu thereof. Rule 1:9-1 does not define the

permissible scope of the designee's testimony once he or she takes the witness

stand at trial.

Hubbard's testimony is also not otherwise exempt from the Rules of

Evidence simply because he necessarily had to obtain information from others

to testify as WCD's corporate representative. "A person who has no knowledge

of a fact except what another has told him [or her]" may not testify as to the fact

because of a lack of the personal knowledge required under Rule 602. Neno v.

Clinton, 167 N.J. 573, 585 (2001) (alteration in original) (quoting McCormick

on Evidence § 10 (5th ed. 1999)). That is because a statement founded on

A-1786-15T2 34 hearsay lacks "'personal knowledge' of the substance of the statement, but only

knowledge of the fact that the statement was made." Id. at 585-86.

Rule 4:14-2 allows a corporate representative to testify at a deposition "as

to matters known or reasonably available to the organization," even if those

matters are outside of the witness's personal knowledge. R. 4:14-2(c). But our

Rules of Evidence permit the admission of hearsay testimony at trial only under

limited circumstances, N.J.R.E. 801 to 808, and otherwise make no provision

for the admission at trial of hearsay from a witness designated as a deposable

corporate representative pursuant to Rule 4:14-2, other than, for example, by

allowing admission of the hearsay testimony under exceptions to the hearsay

rule, such as a statement by a party-opponent, N.J.R.E. 803(b), a statement

against the corporation's interest, N.J.R.E. 803(c)(25), 14 or by a representative

discussing admissible business records, N.J.S.A. 803(c)(6). 15 Indeed, Hubbard

14 Under N.J.R.E. 803(b) and 803(c)(25), plaintiff may have been entitled to present testimony from Hubbard that would otherwise constitute hearsay, but WCD was not. See, e.g., Spencer v. Bristol-Myers Squibb Co., 156 N.J. 455, 460-64 (1998) (affirming the trial court's admission of statements of a corporate representative as statements of a party-opponent under Rule 803(b)). 15 Rule 4:16-1(c) provides that any party may utilize the deposition testimony of a witness, "whether or not a party," against any other party that was present or represented at the taking of the deposition "if the court finds that the appearance of the witness cannot be obtained," but does not authorize the

A-1786-15T2 35 testified throughout his direct examination by plaintiff's counsel, and during

cross-examination by the various defense counsel, about the contents of what

appear to be business records, many of which were created prior to the

commencement of his employment. Plaintiff does not challenge the admission

of that testimony on appeal.

Plaintiff challenges portions of Hubbard's testimony during WCD's

counsel's cross-examination. We first consider whether the court erred by

admitting the challenged testimony, and then determine whether the court 's

alleged errors were clearly capable of producing an unjust result. R. 2:10-2.

Although we accord deference to the court's evidentiary rulings absent an

abuse of discretion, Nantambu, 221 N.J. at 402, we review a trial court's rulings

de novo where the court does not determine the admissibility of evidence under

the correct legal standard, Reddish, 181 N.J. at 609. We apply those standards

here.

Plaintiff first asserts the court erred by allowing Hubbard to respond to a

question about why WCD entered into a talc testing program in 1971. Hubbard

admission of hearsay testimony included in a deposition to which a proper objection is made. In any event, defendants did not seek admission of Hubbard's deposition testimony, plaintiff challenges only the admission of Hubbard's trial testimony, and Rule 4:16-1(c) is inapplicable here because Hubbard testified at trial. A-1786-15T2 36 began his response by stating that it was his understanding that the director of

WCD's laboratory at the time "had seen an article." Plaintiff's counsel objected,

and WCD's counsel, in obvious recognition of the hearsay nature of Hubbard's

response, said he was not interested in what the WCD laboratory director had

said, but instead wanted Hubbard to testify as to "what [he knew] as" WCD's

corporate representative. Plaintiff's counsel again objected on hearsay grounds

and, following a sidebar discussion, the court sustained the objection and said,

"Let's develop the background."

In response to WCD's counsel's questions, Hubbard explained that he

obtained his knowledge of the reasons WCD began testing talc for asbestos in

1971 by reviewing various corporate records, and he "also spoke[] to other

individuals who worked at" WCD. Hubbard was then asked if he "obtained an

understanding as to why" WCD began testing talc for asbestos in 1971.

Plaintiff's counsel objected based on hearsay, and the court overruled the

objection. Hubbard then indicated that he obtained his understanding based on

his review of certain records and his "personal knowledge from the people who

work[ed] there at the time." Plaintiff's counsel again objected, but the court

overruled the objection. Ultimately, the court permitted Hubbard to testify that

WCD instituted a testing program for asbestos in talc in 1971 in response to "the

A-1786-15T2 37 interest of the FDA," which was detailed in newspaper articles that were in

WCD's "clipping file."

We agree with plaintiff that the court erred in permitting Hubbard's

testimony explaining his understanding as to why WCD entered into a talc

testing program in 1971. His response was clearly not based on his personal

knowledge—he was not employed by WCD in 1971 when the testing began—

was founded on what others told him, and does not fall within any exceptions to

the hearsay rule. Defendants' assertion the testimony was admissible based on

Hubbard's status as the corporate representative finds no support in our Rules of

Evidence.

Plaintiff also objected to Hubbard's testimony that it was "always [his]

understanding" that WCD first learned of the potential risk of asbestos

contamination of talc when the "articles appeared in the newspaper . . . and the

FDA took an interest." The court overruled the objection, supporting its

determination by stating "It's cross." We again agree the court erred. Based on

the context of the questioning, Hubbard's testimony constituted inadmissible

hearsay because he was not employed by WCD in 1971, his "understanding"

was therefore necessarily based on what he learned from others, and WCD fails

to demonstrate the testimony is otherwise admissible under any exception to the

A-1786-15T2 38 hearsay rule. See Neno, 167 N.J. at 584-85 (explaining that a witness cannot

indirectly incorporate hearsay into a statement of opinion or understanding).

The court similarly erred by permitting Hubbard to testify, over plaintiff's

objection, that WCD never made a decision about the methods used by their

outside labs to test talc based on cost, and that WCD sent letters to certain of its

talc suppliers in 1972 concerning the results of talc testing. In both instances,

Hubbard testified solely about events occurring prior to his employment based

on what he learned from others, and none of the testimony falls within an

exception to the hearsay rule.

We also consider whether the admission of those portions of Hubbard's

testimony to which plaintiff objected constitutes harmless error—that is, was it

clearly capable of producing an unjust result. R. 2:10-2; see Toto v. Ensuar, 196

N.J. 134, 144 (2008). We conclude it was not. Hubbard's extensive admissible

testimony, supported by numerous WCD records that were admitted in evidence,

otherwise showed no record of WCD testing for asbestos prior to 1971, the FDA

expressed concern about the presence of asbestos in 1971 and became actively

involved in developing a protocol for the reliable testing for asbestos at that time

and during the following years, and WCD began at least some testing of its talc

as early as 1971 and thereafter continued testing some of its talc and participated

A-1786-15T2 39 in CTFA's efforts to coordinate with the FDA to develop an acceptable testing

protocol. Thus, in our view, there was ample evidence, independent of

Hubbard's inadmissible hearsay testimony, establishing WCD's talc testing

history, its alleged knowledge of the possibility that its talc might contain

asbestos, and its use and consideration of various testing methods. As a result,

we are unable to conclude that Hubbard's hearsay testimony to which plaintiff

objected, that related to WCD's lack of testing prior to 1971 and the reasons

WCD began its testing in the early 1970s, was clearly capable of producing an

unjust result. R. 2:10-2; see, e.g., Rice v. Miller, 455 N.J. Super. 90, 107-08

(App. Div. 2018).

We also consider plaintiff's challenge to the admission of portions of

Hubbard's testimony to which no objection was made at trial. We generally do

not consider issues raised for the first time on appeal, see Zaman v. Felton, 219

N.J. 199, 226-27 (2014), and for that reason alone reject plaintiff's challenge to

the portions of Hubbard's testimony to which plaintiff chose not to object at trial.

Plaintiff's decision not to object deprived the trial court of an opportunity to

address the objection and prevented defendants from further developing the

record supporting admission of the testimony and from presenting other

evidence in place of the testimony plaintiff now contends was inadmissible. See

A-1786-15T2 40 State v. Witt, 223 N.J. 409, 419 (2015). Moreover, the record shows plaintiff

ably and consistently objected to other portions of Hubbard's testimony based

on hearsay grounds, and plaintiff's failure to do so with regard to the portions of

Hubbard's testimony about which he now complains bespeaks a conscious trial

strategy.

In any event, we consider whether the portions of Hubbard's testimony to

which plaintiff did not object constituted inadmissible hearsay and, if so,

whether its admission constituted plain error. R. 2:10-2. Plaintiff asserts

Hubbard provided inadmissible hearsay testimony concerning the reasons WCD

"start[ed] to test talc for the presence of asbestos in 1971, seven years before

Hubbard began his employment with the company." Hubbard testified that

WCD began testing because it wanted to determine "if there's a possibility" of

"a problem with the product," it had an obligation to make sure the product was

not "defective," and it did not want to sell a product that would "ruin [WCD's]

reputation." Plaintiff also claims Hubbard improperly offered hearsay testimony

that prior to Hubbard's employment with WCD, it would not have sold talc that

tested positive for asbestos, it would have destroyed any talc that tested positive

for asbestos and that it never sold Shulton any talc that tested positive for

asbestos.

A-1786-15T2 41 Based on our review of the record, Hubbard's testimony about the reasons

WCD began testing for asbestos and as to what WCD did or would have done

with talc that contained asbestos appears to constitute inadmissible hearsay

because it is untethered to Hubbard's personal knowledge. Again, Hubbard did

not become employed at WCD until 1978, and his knowledge concerning what

occurred before his employment necessarily was derived from others. We note

that plaintiff's failure to object deprived defendants of an opportunity to

establish that Hubbard's testimony was either based on admissible business

records or otherwise admissible under the exceptions to the hearsay rule. In any

event, even accepting Hubbard's testimony as inadmissible hearsay, which we

conclude it was based on the record, we are not convinced its admission was

clearly capable of producing an unjust result. R. 2:10-2.

Hubbard provided lengthy and detailed admissible testimony, to which no

objection was made at trial and no challenge is made on appeal, concerning

WCD's testing of talc for asbestos in the years prior to his employment. That

testimony consisted of his detailing of WCD records, which were admitted in

evidence, that he reviewed in his capacity as WCD's corporate representative.

In general terms, the records showed, and Hubbard explained, WCD's

interactions with the FDA during the 1970s; WCD's interactions with various

A-1786-15T2 42 testing laboratories that it used to test its talc during the 1970s; various tests of

WDC talc during the 1970s, including one in 1972 showing the presence of

tremolite and chrysotile; WCD's participation in CTFA meetings during the

1970s dedicated to addressing the testing of talc for asbestos; and the back-and-

forth between CTFA and the FDA in 1973 and thereafter concerning the

development of a reliable test for the presence of asbestos in talc.

That testimony, as well as the testimony of the other witnesses, including

plaintiff's experts, about similar subjects throughout the long trial provides the

context in which we determine that Hubbard's hearsay testimony was not clearly

capable of producing an unjust result. Indeed, we can properly infer from

plaintiff's failure to object "that in the context of the trial" the errors about which

he now complains were "actually of no moment." State v. Macon, 57 N.J. 325,

333 (1971). Moreover, the reasons Hubbard provided for WCD's decision to

test for asbestos and his testimony that WCD would have destroyed any cosmetic

talc in which it found asbestos was not clearly capable of producing an unjust

result because plaintiff's claim was founded, at least in part, on Linda Fishbain's

exposure to asbestos-contaminated talc in Shulton's products on a daily basis

beginning in 1965, six or seven years prior to any testing of the talc for asbestos.

Thus, Hubbard's testimony about the reasons testing commenced and that WCD

A-1786-15T2 43 would have destroyed talc that tested positive for asbestos is irrelevant to that

portion of plaintiff's claim founded on what occurred from 1965 through WCD's

testing in 1971.

Hubbard's testimony about the reasons the testing began was not capable

of producing an unjust result because there is otherwise evidence, in the form of

WCD records, that the testing commenced in 1971, after the FDA expressed

concern about the presence of asbestos in talc and the appropriate testing

methodology. Last, Hubbard's testimony about what WCD would have done if

a test showed asbestos in its talc was not clearly capable of producing an unjust

result because there was no evidence WCD actually tested all of the talc it sold

to Shulton after 1971, Hubbard never identified any cosmetic talc that WCD

actually destroyed in response to a test showing the presence of asbestos, and

Fitzgerald presented detailed testimony explaining that the source mines for

WCD talc, as well as Shulton products that Linda Fishbain allegedly used and

was exposed, were "regularly and consistently contaminated with asbestos" from

1955 to 1980.

We are also not convinced that the cumulative effect of Hubbard's hearsay

testimony, including that to which plaintiff did and did not object, was clearly

capable of producing an unjust result. For the reasons noted, plaintiff makes no

A-1786-15T2 44 showing that any of the testimony, when considered in the totality of the

evidence presented at trial, was clearly capable of producing an unjust result

here. The parties presented substantial evidence, including comprehensive and

detailed expert testimony, supporting their respective positions and addressing

the allegation that Linda Fishbain's mesothelioma was caused by her exposure

to asbestos in the allegedly contaminated Shulton products that she used and to

which she was exposed. In our view, Hubbard's challenged testimony added

little, if anything, of import that might have affected the jury's determination of

the complex issues presented. We reject plaintiff's conclusory contentions to

the contrary.

IV.

Plaintiff next argues the court erred by ruling during a pretrial proceeding

that counsel for Colgate Palmolive could show the jury a slide of a redacted

version of the 1986 letter from the FDA that was written in response to a citizen's

petition requesting asbestos warnings on talc products. Plaintiff also claims the

court erred in its jury instructions on the proper consideration of the letter.

Plaintiff claims the letter "created the misleading impression that the [FDA] had

approved the absence of warnings about the dangers of asbestos on Shulton

products during the period of Linda Fishbain's exposure."

A-1786-15T2 45 Prior to trial, plaintiff objected to counsel for Colgate Palmolive's plan to

show a portion of the letter to the jury during opening statements. Plaintiff

argued that "[p]utting aside the hearsay problems with" the letter, it

"postdate[d]" the period during which Linda Fishbain allegedly was exposed to

asbestos-contaminated talc. The court did not make any legal conclusions

supporting its decision on the objection but implicitly overruled it, stating only

that counsel "could argue to the jury" and that if defendants "don't meet the

proofs then [plaintiff] can argue that to the jury."

At trial, none of the various defendants moved the letter into evidence.

Instead, plaintiff's counsel first mentioned the letter to the jury during his

opening statement, questioned a series of his witnesses about it and later moved

the letter into evidence over the objections of the various defendants. Plaintiff

now claims it was error for the court to admit the letter.

"[T]rial errors that 'were induced, encouraged or acquiesced in or

consented to by . . . counsel ordinarily are not a basis for reversal on appeal.'"

State v. Munafo, 222 N.J. 480, 487 (2015) (quoting State v. A.R., 213 N.J. 542,

561 (2013)). As our Supreme Court has explained, the invited error doctrine

"gives voice to 'the common-sense notion that a "disappointed litigant" cannot

argue on appeal that a prior ruling was erroneous "when that party urged the

A-1786-15T2 46 lower court to adopt the proposition now alleged to be error."'" Ibid. (quoting

A.R., 213 N.J. at 561). Here, we consider whether plaintiff's claim the court

erred by admitting the letter must be rejected under the invited error doctrine

because plaintiff moved for admission of the letter over the objections of the

various defendants at trial.

Plaintiff argues he did not waive his right to challenge the admission of

the letter because his counsel was compelled to mention the letter during

opening statements and move for its admission because the court ruled Colgate

Palmolive's counsel could show a portion of the letter to the jury during

openings. Plaintiff relies on Saldana v. Michael Weinig, Inc., where the trial

court denied the plaintiff's application to crop a photograph of the machine that

caused the plaintiff's injuries, and the plaintiff later moved for admission of the

uncropped photograph into evidence. 337 N.J. Super. 35, 44-46 (App. Div.

2001). We rejected the defendant's claim that the plaintiff's request to admit the

photograph at trial constituted a waiver of the plaintiff's right to challenge the

court's rejection of the plaintiff's motion to crop the photograph. Id. at 47-48.

We held that because "[a] party who objects to the admission of evidence is

bound by an adverse ruling for the remainder of the trial . . . [he or she] is entitled

to minimize the effect of the ruling by taking a contrary position without

A-1786-15T2 47 waiving, for the purposes of appeal, the prejudicial effect of the introduction of

the entire subject matter over which the initial objection was made." Id. at 47.

We concluded that the "admission of the uncropped photograph, based upon the

adverse ruling of the trial judge, did not represent a waiver of [the plaintiff 's]

initial objection" to the uncropped photograph's admission into evidence. Id. at

47-48 (emphasis added).

Whether the holding in Saldana should bar plaintiff from challenging the

admission of the 1986 letter is not easily resolved here because the court 's lack

of legal findings renders unclear whether its determination that counsel for

Colgate Palmolive could show a portion of the letter to the jury during opening

statements constituted a determination the letter was admissible as evidence at

trial. If the court's decision constituted a finding the letter was admissible as

evidence, plaintiff's strategy of addressing the letter his opening statement and

moving for admission of the letter into evidence did not result in a waiver of his

right to argue on appeal the court erred by admitting the letter in the first

instance. Id. at 47-48.

Based on our review of the record, we are convinced the court's decision

to allow Colgate Palmolive's counsel to show a portion of the letter to the jury

A-1786-15T2 48 during opening statements effectively constituted a decision to admit the letter 16

into evidence at trial. Plaintiff's objection to Colgate Palmolive's counsel's plan

to show the jury a portion of the letter was based on evidence principles and not

those pertaining to the proper scope of opening statements. See Morales-

Hurtado v. Reinoso, 457 N.J. Super. 170, 191 (App. Div. 2018) (explaining that

the "narrow purpose and scope" of an opening statement is to explain "what

evidence will be presented, to make it easier for the jurors to understand what is

to follow, and to relate parts of the evidence and testimony to the whole"

(citation omitted)). In plaintiff's objections to Colgate Palmolive's planned use

of the letter during opening statements, his counsel expressly referenced hearsay

problems and issues of relevancy, N.J.R.E. 403, claiming the letter detailed FDA

actions occurring after Linda Fishbain's exposure to talc.

In addition, we can reasonably conclude that, presented with plaintiff's

express objections, the court would not have allowed counsel to show the jury a

document during opening statements unless the court had decided the letter was

admissible in evidence. That does not mean the court's determination was

16 None of the parties argue that because Colgate Palmolive requested permission only to show the jury a portion of the letter that admission of the letter, if appropriate, should have been limited only to that portion. The parties do not dispute that proper admission of the portion of the letter permitted admission of the balance of the letter. A-1786-15T2 49 correct; it means only that the record supports a conclusion that the court 's

decision constituted a determination the letter was admissible. Plaintiff's

counsel certainly understood that to be the case; he supported his request for

admission of the letter by arguing that Colgate Palmolive had been permitted to

"open" on the letter over plaintiff's objection. In other words, plaintiff argued

that the letter was admissible because the court had already determined that it

could be shown to the jury. Neither WCD nor Shulton refuted that contention. 17

In sum, a fair reading of the record shows the court's determination that

Colgate Palmolive's counsel could show a portion of the letter to the jury during

opening statements constituted an implicit rejection of plaintiff's objection to

the admission of the letter and a determination the letter was admissible as

evidence. As a result, we are not persuaded that plaintiff's counsel's decision to

refer to the letter in his opening statement and later move it into evidence

resulted in a waiver of plaintiff's right to claim admission of the letter was in

error. Saldana, 337 N.J. Super. at 47-48. We therefore address plaintiff's claim

17 We acknowledge that due to apparent difficulties in the transcription of the trial record, it is not clear which counsel spoke during the colloquy over the objection to plaintiff's request to admit the letter in evidence and that much of the substantive exchange is identified only as "indiscernible." We glean as much as we can from the sparse record. A-1786-15T2 50 the court erred by determining the letter was admissible in the first instance and

whether its admission was clearly capable of producing an unjust result.

Because of the manner in which the letter was first addressed by the court

and later admitted into evidence based on plaintiff's request, determination of

the admissibility of the letter rests on an almost non-existent record. The court

did not conduct a Rule 104 hearing on its admission and thus the record related

to its admission is limited to what appears to be the letter's contents and the

parties' apparent acceptance of its authenticity. The letter is dated July 11, 1986,

and bears the purported signature of the then "Acting Associate Commissioner

for Regulatory Affairs" of what the parties apparently concede is the FDA. The

letter is not typed on FDA letterhead and bears no seal or certification as to its

origin or authenticity.

Shulton and WCD relied on the letter to establish the truth of its contents.

They relied on the letter's statements that the FDA had never required a warning

on talc products, the FDA questioned the reliability of analytical methods for

testing talc for the presence of asbestos during the early 1970s, and "the quality

of cosmetic talc significantly improved, and that even when asbestos was

present, the levels were so low that no health hazard existed." Because the letter

A-1786-15T2 51 was relied on by Shulton and WCD, at least in part, to establish the truth of its

contents, it constituted hearsay. See N.J.R.E. 801.

Neither WCD nor Shulton cite to any exception to the hearsay rule

permitting the proper admission of the letter. The record does not permit a

determination whether admission of the letter properly falls within any

exception to the hearsay rule. Although authentication of the letter might have

been accomplished through appropriate testimony, see State v. Moore, 158 N.J.

Super. 68, 83 (App. Div. 1978), or otherwise by self-authentication, see N.J.R.E.

902(b) and (d), the parties' apparent concession it was authentic does not render

it admissible. Rather, because defendants relied on the letter for the truth of its

contents, it was not admissible unless it was both authentic, N.J.R.E. 901, and

there was a showing that the letter satisfied the requirements of Rule 803(c)(8)

as a public record, report or finding. N.J.R.E. 803(c)(8). The record, however,

is bereft of any evidence satisfying the Rule's requirements: there is no evidence

the statements in the letter are "within the scope of the [author's] duty either to

perform the act reported or to observe the act, condition, or event reported and

to make the written statement." Ibid. We therefore conclude, based on the

record, the letter constituted inadmissible hearsay.

A-1786-15T2 52 Nevertheless, we are not persuaded admission of the letter was clearly

capable of producing an unjust result. R. 2:10-2. The letter's statement

indicating the FDA had never required warnings for talc products pertains to a

fact that is otherwise undisputed, and plaintiff did not present any evidence

showing the FDA required a warning on talc products during Linda Fishbain's

alleged period of exposure to Shulton's products. Similarly, the letter's

statements concerning the unreliability of the testing methodologies used during

the 1970s and the FDA's efforts to develop a reliable methodology was also the

subject of extensive other testimony and evidence.

The letter's reference to the improved quality of talc during the "latter

portion of the 1970s" and the FDA's apparent finding that the levels of asbestos

in talc found during that period did not create a health hazard relates to only a

small portion of Linda Fishbain's alleged period of exposure to contaminated

talc. Moreover, that statement is undermined by the numerous other statements

in the letter that supported plaintiff's position at trial and upon which plaintiff

relied at trial. For example, the letter states that: "asbestos inhalation over

extended periods is hazardous to humans"; the FDA is "aware that some

cosmetic talc produced in the 1960s and early 1970s did contain asbestiform

minerals;" "[d]uring the early 1970s, [the] FDA became concerned about the

A-1786-15T2 53 possibility that cosmetic talc did contain significant amounts of" asbestiform

materials and, during that time, "the analytical procedures for determining

asbestos in talc were not fully developed"; and "[b]ecause of the questionable

nature of the analytical results, the [FDA] was not able to assess reliably the

levels of asbestiform minerals in cosmetic talc then in the marketplace." In other

words, the letter confirmed many of plaintiff's most important factual claims:

asbestos is hazardous to humans and during Linda Fishbain's daily exposure to

the talc from the mid-1960s until the late 1970s, the FDA, cosmetic talc industry

and defendants had no reliable methodology to determine the level of asbestos

contained in cosmetic talc products. We therefore do not find that admission of

the letter was clearly capable of producing an unjust result. R. 2:10-2.

We also reject plaintiff's claim the court erred in its instruction to the jury

concerning its consideration of the letter. Plaintiff contends the court erred by

instructing the jury that it could consider the FDA's failure to require asbestos

warnings when deciding whether Shulton's products were unsafe.

The court charged the jury as follows:

Defendants have offered evidence that the [FDA] considered whether to require warnings on cosmetic talc products for asbestos-related dangers and determined that no warning was necessary. There is no dispute that there was no regulatory requirement that any of the defendants include a warning with its

A-1786-15T2 54 products.

Plaintiffs dispute the basis of the FDA's decision and contend that regardless of the FDA's decision a warning was still required. The absence of an FDA requirement that a warning be given, however, does not mean necessarily that the product needed no warning. It is, however, something you may take into consideration.

Clear and correct jury charges are necessary for a fair trial and a court's

failure to provide them may constitute plain error. Das v. Thani, 171 N.J. 518,

527 (2002); Wade v. Kessler Inst., 172 N.J. 327, 341 (2002). Jury charges

outline the jury's function, set forth the issues, state the applicable law, and spell

out how the jury should apply the legal principles to the facts. Wade, 172 N.J.

at 341. An appellate court will not disturb a jury's verdict based on an

instructional error, "where the charge, considered as a whole, adequately

conveys the law and is unlikely to confuse or mislead the jury, even though part

of the charge, standing alone, might be incorrect." Ibid. (quoting Fischer v.

Canario, 143 N.J. 235, 254 (1996)).

Plaintiff argues that the instruction was misleading "because it implied the

FDA had approved Shulton's decision to omit any warnings about the dangers

of asbestos in its products during the period those products were used by Linda

Fishbain and other members of her family." The claim lacks merit because the

instruction does not suggest or imply that the FDA approved the omission of

A-1786-15T2 55 warnings on Shulton's products during the time of Linda Fishbain's exposure to

the allegedly asbestos-contaminated talc. Indeed, plaintiff's counsel repeatedly

questioned witnesses about the FDA's statement that some cosmetic talc in the

1960s and 1970s contained asbestiform minerals and argued during summation

that the FDA never said cosmetic talc was always free from asbestos

contamination. Plaintiff's counsel reminded the jurors that the FDA letter said

only "the talc in 1986 is clean." The court's instruction therefore could not have

misled or confused the jury. Ibid.

In addition, the court tailored the instruction to provide a fair description

of the position of all parties and allow the jury to consider the evidence,

including the FDA letter. It is presumed that the jury followed the court 's

instructions. State v. Loftin, 146 N.J. 295, 390 (1996); Belmont Condo. Ass'n,

Inc. v. Geibel, 432 N.J. Super. 52, 97 (App. Div. 2013). There is nothing in the

record to suggest the jury failed to do so. And, in our view, the instruction

accurately described the parties' respective positions.

Any other arguments made on plaintiff's behalf that we have not expressly

addressed are without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E).

Affirmed.

A-1786-15T2 56