STEPHAN LANZO, III VS. CYPRUS AMAX MINERALS COMPANY (L-7385-16, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED)

• Court: New Jersey Superior Court Appellate Division
• Decided: April 28, 2021
• Docket: A-5711-17/A-5717-17
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-5711-17 A-5717-17

STEPHEN LANZO, III and KENDRA LANZO,

Plaintiffs-Respondents, APPROVED FOR PUBLICATION v. April 28, 2021

APPELLATE DIVISION CYPRUS AMAX MINERALS COMPANY, Individually and as Successor-in-Interest to American Talc Company, Metropolitan Talc Company, Inc., Charles Mathieu, Inc., Resource Processors, Inc., and Windsor Minerals, Inc., CYPRUS MINERALS CO., Individually and as Successor-in-Interest to American Talc Company, Metropolitan Talc Company, Inc., Charles Mathieu, Inc., Resource Processors, Inc., and Windsor Minerals, Inc., JOHNSON & JOHNSON, and WHITTAKER CLARK & DANIELS, INC., Individually and as Successor-in- Interest to American Talc Company, Metropolitan Talc Company, Inc., Charles Mathieu, Inc., and Resource Processors, Inc.,

Defendants,

and IMERYS TALC AMERICA, INC., f/k/a LUZENAC AMERICA, INC., Individually and as Successor-in- Interest to Windsor Minerals, Inc., and JOHNSON & JOHNSON CONSUMER INC., f/k/a JOHNSON & JOHNSON CONSUMER COMPANIES, INC.,

Defendants-Appellants. _______________________________

Argued March 9, 2021 – Decided April 28, 2021

Before Judges Yannotti, Haas, and Mawla

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7385-16.

Roman Martinez (Latham & Watkins LLP) of the New York and District of Columbia bars, admitted pro hac vice, argued the cause for appellant Imerys Talc America, Inc. (Chasan, Lamparello, Mallon & Cappuzzo, PC, Roman Martinez, and Elana Nightingale Dawson (Latham & Watkins LLP) of the Illinois and District of Columbia bars, admitted pro hac vice, attorneys; Cindy Nan Vogelman, Roman Martinez and Elana Nightingale Dawson, on the briefs).

E. Joshua Rosenkranz (Orrick, Herrington & Sutcliffe LLP) of the New York bar, admitted pro hac vice, argued the cause for appellant Johnson & Johnson Consumer, Inc. (McCarter & English LLP, E. Joshua Rosenkranz, Robert M. Loeb (Orrick, Herrington & Sutcliffe LLP) of the District of Columbia bar, admitted pro hac vice, Paul David Meyer (Orrick, Herrington & Sutcliffe LLP) of the California bar , admitted pro hac vice, and Naomi J. Scotten (Orrick, Herrington &

A-5711-17 2 Sutcliffe LLP) of the New York, Virginia, and District of Columbia bars, admitted pro hac vice, attorneys; John C. Garde, E. Joshua Rosenkranz, Robert M. Loeb, Paul David Meyer, Naomi J. Scotten, and Evan M. Rose, on the briefs).

Denyse Clancy (Kazan McClain Satterley & Greenwood) of the California bar, admitted pro hac vice, argued the cause for respondents Stephen Lanzo, III and Kendra Lanzo (Levy Konigsberg LLP, and Denyse Clancy, attorneys; Moshe Maimon and Denyse Clancy, on the briefs).

The opinion of the court was delivered by

YANNOTTI, P.J.A.D.

Johnson & Johnson Consumer Inc. (JJCI) and Imerys Talc America, Inc.

(Imerys) appeal from a judgment dated April 23, 2018, which awarded plaintiffs

Stephen Lanzo III and his wife Kendra Lanzo $117 million in compensatory and

punitive damages, and other orders entered by the trial court during the course

of this litigation. JJCI's appeal is docketed as A-5717-17, and Imerys' appeal is

docketed as A-5711-17. We address both appeals in this opinion. For the

following reasons, we reverse and remand the matter to the trial court for new,

separate trials against JJCI and Imerys.

I.

On December 23, 2016, plaintiffs filed a complaint against Cyprus Amax

Minerals Company (Cyprus Amax) and Cyprus Minerals Company

A-5711-17 3 (collectively, Cyprus), Johnson & Johnson (J&J), JJCI, Imerys, and Whi ttaker

Clark & Daniels, Inc. (Whittaker). Plaintiffs asserted claims under the common

law and the New Jersey Products Liability Act (PLA), N.J.S.A. 2A:58C-1 to -

11.

Plaintiffs claimed Mr. Lanzo contracted mesothelioma from his long-term

use of Johnson Baby Powder (JBP) and J&J's Shower to Shower talcum powder

(SS). J&J and JJCI produced, marketed, and sold JBP and SS using J&J's own

talc or talc supplied by other defendants.1 Plaintiffs alleged the products

contained asbestos. In the complaint, Ms. Lanzo asserted a claim for the loss of

her spouse's services, society, and consortium.

Prior to trial, the judge considered and ruled upon several motions. The

judge granted summary judgment in favor of Whittaker and dismissed the claims

against this defendant with prejudice. The judge also granted partial summary

judgment in favor of Imerys and Cyprus Amax and dismissed all common law

claims against them.

The judge also granted partial summary judgment to J&J and JJCI and

dismissed all common law claims but permitted plaintiffs' design-defect and

failure-to-warn claims under the PLA to proceed against these defendants. The

1 In 2012, Valeant Pharmaceuticals purchased the SS product line from J&J. A-5711-17 4 judge reserved decision on J&J and JJCI's motion for summary judgment on

plaintiffs' punitive damage claims.

The judge also conducted a Rule 104 hearing on a motion by J&J, JJCI,

Imerys, and Cyprus Amax to bar evidence and testimony by plaintiffs' expert

William Longo, Ph.D., regarding the testing of certain samples of JBP and SS

taken from "vintage" containers. They argued that Longo's testimony should be

barred because there was no reliable chain of possession of the samples tested,

and no proof the contents of the containers had not been contaminated after they

were released by J&J. The judge denied the motion.

In addition, J&J, JJCI, Imerys, and Cyprus Amax filed a motion to

preclude plaintiffs' expert James S. Webber, Ph.D., from testifying that non-

asbestiform cleavage fragments of certain minerals can cause mesothelioma.

Alternatively, they sought a Rule 104 hearing on Webber's qualifications. The

judge denied the motion.

During the trial, J&J, JJCI, Imerys, and Cyprus Amax moved to bar

plaintiffs' expert, Jacqueline Moline, M.D., from testifying that non-asbestiform

cleavage fragments of certain minerals can cause mesothelioma. The judge

limited the scope of Moline's testimony, but allowed her to testify regarding

"non-asbestiform cleavage fragments from a medical point of view."

A-5711-17 5 Furthermore, as the evidentiary portion of the trial was coming to an end,

plaintiffs asked the judge to impose sanctions upon Imerys based on its failure

to produce certain talc samples and test data in discovery and its destruction of

certain talc samples. The judge decided to strike Imerys' answer and suppress

its defenses. The judge reconsidered that decision and decided to provide the

jury with an adverse inference instruction as a sanction for Imerys' discovery

violations and spoliation of evidence.

J&J and JJCI then moved to sever the claims against them and sought a

mistrial. The judge denied the motions. The judge thereafter granted motions

by J&J and Cyprus Amax for dismissal of the claims against them, leaving JJCI

and Imerys as the only defendants remaining in the case.

In her final instructions to the jury, the judge provided the jury with the

adverse inference instruction, stating, among other things, that Imerys

wrongfully withheld talc samples and testing data and destroyed or discarded

some talc samples. The judge told the jury it could "infer that the missing

evidence may have been helpful to the plaintiffs' case to the detriment of

Imerys." The judge instructed the jury that JJCI was not involved in the

wrongful conduct.

The jury returned a verdict against JJCI and Imerys finding that Mr. Lanzo

A-5711-17 6 had been exposed to asbestos from JPB, SS, or both of these products, and that

such exposure was a substantial factor in causing his mesothelioma. The jury

awarded Mr. Lanzo $30 million in compensatory damages for his disability,

impairment, loss of the enjoyment of life, and pain and suffering, and $7 million

to Ms. Lanzo for the loss of Mr. Lanzo's services, society, and consortium. The

jury assigned seventy percent responsibility for the compensatory damage

awards to JJCI and thirty percent to Imerys.

The judge then denied JJCI and Imerys' motions to dismiss the punitive

damage claims. After evidence was presented on these claims, the jury awarded

plaintiffs punitive damages of $55 million against JJCI and $25 million against

Imerys. On April 23, 2018, the judge entered a final judgment in accordance

with the jury's verdict, which included pre-judgment interest on the

compensatory damages. Thereafter, the judge denied JJCI and Imerys' motions

for judgment notwithstanding the verdict, a new trial, or remittitur. These

appeals followed.

On appeal, JJCI argues: (1) the trial court erred by admitting unreliable

expert testimony; (2) the court undermined its defense by refusing to grant

separate trials after ruling that it would provide the jury with an adverse

inference instruction regarding Imerys; (3) the jury instructions improperly

A-5711-17 7 constrained consideration of potential alternative causes for Mr. Lanzo's illness;

and (4) there was insufficient evidence to support the jury's verdict that Mr.

Lanzo was exposed to asbestos from J&J talcum powder, establish causation,

and support the punitive damages award.

In its appeal, Imerys argues: (1) the court erred by allowing plaintiffs to

present unreliable expert testimony from Longo, Webber, and Moline; (2) the

adverse inference instruction was unjustified and prejudicial; and (3) the

punitive damage award must be vacated.

II.

We briefly summarize the testimony and evidence presented at trial that

is pertinent to the issues raised on appeal.

A. Use of Talc in JBP.

Talc is a soft material that has long been used in numerous products,

including pharmaceuticals and cosmetics. In the late 19th century, J&J

determined that talcum powder could be used to soothe skin irritation, including

diaper rash. J&J created JBP, which first appeared in 1894 and, according to

A-5711-17 8 J&J, became a household staple. JBP consists of more than ninety-nine percent

talc and a small amount of fragrance.

From 1946 to 1967, J&J acquired talc for JBP from a mine in Italy. In

1966, J&J purchased talc mines in Vermont and formed Windsor Minerals, Inc.

(Windsor) to manage the mines. From 1967 to 2003, the Vermont mines

provided talc that J&J used in JBP; however, for a brief period in 1980, J&J

used Italian talc due to a workers' strike in Vermont.

In 1989, J&J sold Windsor and the Vermont mines to a Cyprus-related

entity, and J&J agreed to purchase talc for JBP exclusively from the Cyprus

companies. In the 1990s, Cyprus sold its talc business to another entity. Imerys

acquired the business in 2011. Since 2003, the talc used in JBP has come from

a mine in Guangxi, China.

B. Testing of J&J's Talc Products.

In 1971, two scientists, Dr. Seymour Lewin and Dr. Arthur Langer,

reported that they had tested certain talc samples, including J&J powder, and

found possible asbestos. J&J sent Dr. Lewin's test samples for testing by the

Colorado School of Mines Research Institute, Walter C. McCrone Associates,

Inc. (McCrone), Cardiff University, and Princeton University. The labs found

no chrysotile asbestos, which Dr. Lewin had detected in the samples. McCrone

A-5711-17 9 found "a few tremolite rods" in each sample and reported that the samples were

"substantially free of asbestiform minerals."

J&J reported the results to the United States Food and Drug

Administration (FDA), which conducted its own investigation. According to

JJCI, the FDA found no contamination. Dr. Lewin thereafter stated publicly that

he found no asbestos contamination in nine of eleven JBP samples, and found

the tests of the other two samples were inconclusive. Langer said it was

"absolutely untrue" that JBP contained five to twenty-five percent of asbestos

fibers, as previously reported. He stated that a "further, more detailed analysis

found only "trace" amounts of asbestos in JBP."

The cosmetics industry then developed a testing regimen for asbestos,

called the J4-1 method. The first step in that process is use of X-ray diffraction

(XRD) to determine if the sample contained minerals that could be asbestos. If

XRD detected such minerals, polarized light microscopy (PLM) would be used

to see if they were fibrous. If XRD produced negative results, no further testing

would be done. Other test methods, such as transmission electron microscopy

(TEM), were more sensitive.

J&J adopted a testing regimen it claims exceeded the J4-1 standard. J&J

used TEM testing and required its suppliers to do the same. J&J also took other

A-5711-17 10 steps to ensure the talc products it sold were not contaminated with asbestos,

including hiring laboratories such as McCrone to test talc samples using TEM.

J&J also conducted its own tests and audited talc samples. Imerys took talc

samples every few hours at the Vermont mines. J&J asserts that since the early

1970s, tens of thousands of talc samples were tested and showed no

contamination.

C. Regulation of Asbestos by the United States Occupational Safety and Health Administration (OSHA).

Patrick Joseph Downey, who was designated as the corporate

representative for Cyprus Amax and Imerys at trial, testified that in June 1972,

OSHA adopted regulations that defined asbestos as including chrysotile,

amosite, crocidolite, tremolite, anthophyllite, and actinolite. He said that in June

1992, OSHA amended its regulations and removed non-asbestiform actinolite,

tremolite, and anthophyllite from the safety standard. OSHA found "substantial

evidence [was] lacking to conclude that non[-]asbestiform tremolite,

anthophyllite and actinolite present[ed] the same type or magnitude of health

effect as asbestos."

OSHA noted, however, that the National Institute for Occupational Safety

and Health (NIOSH) had recommended that OSHA continue to regulate non-

asbestiform actinolite, tremolite, and anthophyllite under asbestos standards.

A-5711-17 11 According to NIOSH, "cleavage fragments of the appropriate aspect ratio and

length from the non[-]asbestiform minerals should be considered as hazardous

as fibers from asbestos minerals."2

D. Imerys' Testing of Talc Samples.

Julie Pier, Imerys' corporate representative, testified about the company's

tests of talc ore from the Vermont mines and the testing of Italian and Chinese

talc. She noted that there are different types of test methodologies which are

used to analyze the asbestos content in talc, specifically, TEM, XRD, selected-

area electron diffraction (SAED), scanning electron microscopy (SEM), and

PLM.

Pier stated that Imerys used a definition of asbestos that was based on a

methodology used by the United States Environmental Protection Agency

(EPA). She explained the first step in determining if a particle is asbestiform is

to determine if it was formed in an asbestos "habit." The particle also must

display at least two additional features, which include: parallel fibers that occur

in bundles; bundles that have splayed ends; and fibers that show curvature and

flexibility.

2 An aspect ratio is "the length of a particle divided by its width." A-5711-17 12 Pier said cleavage fragments of minerals and asbestiform minerals are

completely different. She noted that tremolite is very different from tremolite

asbestos. According to Pier, tremolite, actinolite, and anthophyllite are most

often non-asbestiform minerals. Pier also said that under the EPA's definition,

a fiber with an aspect ratio of less than twenty-to-one should not be considered

asbestos. She stated that certain professional organizations, including the

American Society for Testing and Materials (ASTM) and the International

Organization for Standardization (ISO), "have determined that the asbestiform

habit is what defines asbestos."

Pier further testified that from 1989 to the time of trial, Imerys used XRD,

PLM, SEM, and TEM for testing talc samples. She acknowledged that some

fine particles in talc products might not be visible with PLM. She stated,

however, that if asbestos were present in a sample, it can be identified by PLM

because "whenever asbestos is present there are always particles large enough

. . . to see by PLM."

Pier asserted that Imerys had been doing TEM testing the entire time it

had been selling talc to J&J. She stated that TEM testing "only gives part of the

picture" and, therefore, it is always used "in combination with other microscopy

A-5711-17 13 techniques." She said TEM can identify the type of mineral but cannot always

identify whether the mineral is or is not asbestos.

Pier reviewed results of tests of Italian and Vermont talc samples from

1983 to 2001. She stated that no asbestiform minerals had been detected in the

hundreds of samples tested. She asserted that between 1989 and 2003, more

than 500 TEM analyses were performed, and there were no findings of asbestos

that exceeded background amounts. She further testified that no asbestos had

been found in tests of talc from the mine in Guangxi, China, which used TEM,

XRD and PLM for testing.

Pier also acknowledged that if a bundle of fibers was found using TEM,

the bundle would not be considered to be a cleavage fragment. She stated that

PLM could not detect individual chrysotile fibers. She added, however, that

chrysotile fibers "occur[ring] with talc [would] be in bundle form, so there

should be some big particles."

E. Longo's Testimony.

The judge qualified Longo to testify as an "expert in the field of testing,

testing for asbestos, and exposure to asbestos from [an] industrial hygiene

perspective." He stated that asbestos had been found in JBP, and that Mr. Lanzo

had been exposed to asbestos from his use of JBP. He said that the results of

A-5711-17 14 J&J's and Imerys' testing did not mean there was no asbestos in J&J's talc

products.

Longo testified that TEM was the preferred method for asbestos testing

because TEM can reveal particles that are not visible with PLM. He stated that

TEM is "the only tool that can see the thinnest fibers," which are thousands of

times thinner than a human hair. He stated that TEM and SEM were available

in the 1970s and that in an internal memorandum, dated January 3, 1974, J&J

had acknowledged TEM was "the only absolute proof with electron diffraction

for identification of asbestos in talc." He opined that in the 1970s or 1980s, it

was not appropriate to use only XRD to test for the presence of asbestos in talc .

Longo further testified that thirty-two samples of J&J's talc products,

which were in "vintage" containers provided to him, had been tested under his

supervision and asbestos was found in eighteen of the samples. He noted that

when he received the containers, some were missing the ring of plastic around

the top. He assumed they "had been opened, or at least the wrapping around the

container top had been opened."

Longo considered the condition of the packaging in determining whether

the samples could have been contaminated. He said none of the containers

showed any signs of tampering. He noted that the container caps could not be

A-5711-17 15 removed by hand. They could be removed with a screwdriver; however, that

would damage the caps and leave microscopic traces on the container. He said

there was no damage to the caps indicating the caps had been removed

previously.

Longo also opined that it was not possible for the samples to have been

contaminated unintentionally. He explained for that to happen, asbestos would

have to drift into the small openings in the cap and then reach a level of

contamination. He said the chance of that happening was "highly improbable."

He also said he had performed a particle-size-distribution analysis, which

supported the conclusion that the original contents of the bottles had not been

replaced with another product. He testified that the samples tested had the

appearance, substance, and internal patterns consistent with JBP.

Longo went on to testify that tremolite asbestos had been found in the

samples tested using TEM, and the findings ranged from 1 to 104 fibers. He

said anthophyllite asbestos also had been found in one of the samples. Longo

stated that most of the structures detected were bundles. He testified that the

amphibole asbestos found in the samples met "the definition for an asbestos

regulated fiber."

A-5711-17 16 Longo further testified that the asbestos particles found in the tests were

not cleavage fragments. He said a bundle of fibers cannot be a cleavage

fragment and bundles are asbestiform by their nature. He noted that some

persons say single fibers look like cleavage fragments. He testified, however,

that "[t]ypically a cleavage fragment that is not asbestiform big enough to be a

fiber has sort of a blocky kind of look."

Longo compared his results to a National Institute of Standards and

Technology (NIST) reference sample for tremolite asbestos and the results

matched. He also compared the aspect ratios of the particles found in his testing

to NIST standards and the results reported by A.M. Blount. 3 He said they were

consistent with his results. Longo claimed that one could "only conclude" that

he found tremolite asbestos in the samples of JBP that were tested.

Longo opined that Mr. Lanzo had been "exposed to significant amounts

of amphibole asbestos" from JBP and SS. He noted the presence of talc and

asbestos in Mr. Lanzo's lymph tissue, which he said, "match[ed] what you would

expect from the exposure from talc." He testified that the talc particles,

3 Blount's study was published in 1991 in the "Environmental Health Perspectives" journal. Blount reported the presence of asbestos in a sample of JBP. A-5711-17 17 tremolite, and anthophyllite were consistent with the products Mr. Lanzo had

been using.

On cross-examination, Longo agreed he was not an expert in causation of

mesothelioma, and said he was not offering any opinions on the health effects

of asbestos. On redirect, Longo stated that if Mr. Lanzo had used JBP as he had

described, it would result in substantial exposure to asbestos fibers .

F. Webber's Testimony.

Webber testified for plaintiffs "as an expert in the fields [of]

environmental health, including methods and methods development of asbestos

in the environment and asbestos in talc." According to Webber, there is a

"commercial/mineralogical" definition for asbestos that is used to determine

whether a substance is useful in commercial applications, and a "public health

definition" used in laboratory analyses to determine if a substance is harmful.

Webber stated the commercial definition applied to asbestos with long

silky fibers that have aspect ratios greater than 20-1 and up to 100-1 "or even

longer." He said asbestos with a high aspect ratio was important commercially

A-5711-17 18 because the fibers could be woven. He stated that very good grades of asbestos

also have high tensile strength, flexibility, durability, and chemical resistance. 4

Webber noted that in 1972, when the federal government began to regulate

asbestos, several types of asbestos were being used commercially. He stated

that chrysotile, the only serpentine fiber asbestos, "accounted for 95 percent of

[commercial] production and use in the United States." The other five types of

asbestos were all amphiboles, specifically, amosite, crocidolite, anthophyllite,

tremolite, and actinolite.

Webber testified, however, that in the field of public health, the concern

is not whether the fiber populations have commercially valuable characteristics

but, rather, whether individual fibers can get into the lungs. According to

Webber, "particle dimensions [and] fiber sizes are critical in determining

whether they're going to have the potential to reach the lungs and therefore,

cause disease." He said the aerodynamic diameter of asbestos "is determined

4 "Tensile strength" is "the greatest longitudinal stress a substance can bear without tearing apart." Merriam-Webster's Collegiate Dictionary 1288 (11th ed. 2014).

A-5711-17 19 almost entirely by its width" and particles of asbestos that are thinner than one

micrometer will reach the alveoli of the lungs. 5

Webber explained that typically, white blood cells can remove particles

that are small enough to reach the alveoli. He stated, however, that because

asbestos fibers are usually longer than a white blood cell, the fibers cannot be

engulfed and removed. Webber said many asbestos fibers "remain in the lungs

and because they're durable silicate minerals, they're there for life." He stated

that the presence of asbestos in the lungs and its durability "can create conditions

that promote cancer," and that "mesothelioma is considered a fingerprint of

asbestos or mineral fiber exposure."

Webber further testified that when an amphibole rock is cracked, three

possible types of particles can break off. The first type is a chunk like the

original rock and it would not have a health impact. The second type is an

asbestiform particle that has the properties of commercially-valuable asbestos.

The third is a cleavage fragment that may be as long and thin as an asbestiform

fiber but "may not have been formed under the same conditions that produced

the asbestiform fiber." He said that cleavage fragments can have the right

5 The alveoli are "small air-containing compartment[s] of the lungs . . . from which respiratory gases are exchanged with the pulmonary capillaries." Merriam- Webster's Collegiate Dictionary 37. A-5711-17 20 aerodynamic diameter to reach the lungs. They do not have the tensile strength

or flexibility of commercial asbestos.

Webber opined that it does not matter whether a fiber is asbestiform or

non-asbestiform because "[i]f it has the right morphological characteristics and

mineralogical and chemical characteristics, it has the potential to cause disease."

He testified that cleavage fragments and asbestiform fibers with identical

aerodynamic diameters have the same potential to reach the alveoli.

Webber said if the fibers are long enough to avoid removal by white blood

cells, "they both have the same potential for inducing disease." He stated that

there have been no studies demonstrating that "thin cleavage fragments . . . are

less hazardous than asbestiform fibers of the same dimensions."

Webber also discussed many of the same reports of testing that were cited

by plaintiffs' other witnesses. He opined, based on the test results he reviewed,

that between 1972 and 2003, JBP and SS contained asbestos. He stated that

certain tests failed to detect asbestos in talc because the testing methods used

did not ensure there was no asbestos in talc. He stated that many tests failed to

detect asbestos because "the talc industry chose methods that lacked sensitivity

to detect asbestos in the talc."

A-5711-17 21 G. Moline's Testimony.

Moline testified that "[v]irtually all cases of mesothelioma in the United

States are caused by asbestos exposure." She said asbestos-related diseases

typically take decades to develop and not all individuals exposed to asbestos

become ill. She noted that asbestos fibers are microscopic, and individuals can

be exposed to asbestos by using, or being near someone who is using a product

that contains asbestos. Moreover, because asbestos can remain in the air, people

can be exposed after the usage occurs.

Moline did not attempt to quantify Mr. Lanzo's exposure to asbestos from

JBP and SS. She stated that it was unnecessary to do so to opine that his

exposure was a significant contributing factor to his mesothelioma. She testified

that no one would have been measuring the asbestos in the air when Mr. Lanzo

was using JBP or SS. According to Moline, it was rare to have numerical values

in an individual exposure case and it was not considered necessary.

Moline testified that the key question is whether an individual was

exposed to asbestos because the medical literature has firmly established that

asbestos causes mesothelioma. She explained that asbestos is present in about

3000 different products and physicians regularly ascribe the cause of

A-5711-17 22 mesothelioma to exposure to a product without epidemiological studies of the

particular product.

Moline testified that EPA Region 9 had stated that, from a public health

perspective, there was no distinction between fibers and cleavage fragments

with the same size, shape, and chemical composition.6 She said "[t]he body

[cannot] differentiate between the two [and] from a human health or a medical

standpoint, there's no difference in terms of their ability to cause disease."

Moline asserted this was generally accepted in the medical literature. She

also stated that there was published literature showing that non-asbestiform

amphiboles cause mesothelioma. She said studies had been made of groups

exposed to non-asbestiform minerals, which showed elevated rates of

mesothelioma.

H. Testimony by Matthew Spencer Sanchez.

Sanchez testified as defendants' expert witness in "geology, mineralogy,

microscopy, identification of serpentine and amphibole minerals, including

6 In 2006, EPA Region 9 issued a response to a report prepared by RJ Lee Group, Inc., which criticized RJ Lee for applying "a [g]eologic [d]efinition rather than a [p]ublic [h]ealth [d]efinition to [c]haracterize [m]icroscopic [s]tructures." (2006 EPA Region 9 Response or Response). Among other things, the agency stated that it "makes no distinction between fibers and cleavage fragments of comparable chemical composition, size, and shape." A-5711-17 23 asbestos, and related testing methodologies and equipment." He stated that J&J

talc products do not contain asbestos.

Sanchez said there are more than seventy-five types of amphiboles, which

are "ubiquitous in rocks" and "very common." He stated, however, that

amphibole asbestos is rare, and comprises less than one percent of amphiboles.

He noted that asbestos forms when there are fractures in the rocks and asbestos

"forms as individual fibers all next to each other." He explained this gives

asbestos high tensile strength and flexibility.

Sanchez said the talc J&J used for JBP came from mines in Vermont, Italy,

and China, and the pressures and temperatures that formed the talc deposits

"were not conducive to the formation of asbestiform minerals." He said a study

of the rock samples from the Vermont mine examined the samples using PLM,

XRD, and TEM and found no asbestos. The study found some non-asbestiform

amphiboles "in discreet locations" but they were not "disseminated throughout

the talc ore."

Sanchez also noted that a 1977 study commissioned by NIOSH examined

100 samples from talc mines throughout the United States for the presence of

asbestos. PLM, XRD, and TEM were used to test the samples. The test of J&J's

A-5711-17 24 Vermont-sourced talc detected no chrysotile or anthophyllite but found some

non-asbestiform tremolite and actinolite.

Sanchez asserted that there was no single tool for use to determine if a

particular particle was asbestos. He said the best approach is to use both TEM

and PLM to confirm the results found by each. He stated that if talcum powder

was contaminated with asbestos, it would be detected by PLM because it would

be present "in all size fractions" and you would "see big pieces of it."

He testified that when an amphibole is crushed it can create "somewhat

elongated fragments" that are "referred to very generically as cleavage

fragment[s]." He said the term "cleavage fragment" was "used to denote

something that is not asbestos."

He stated that although asbestos fibers are all "relatively the same width,"

the particles in a cleavage fragment population have "a much wider distribution

of the widths of the individual particles." He explained that, "as a general rule,

as [cleavage fragments] get shorter they all get thinner." He said that cleavage

fragments could have "linear features" and that there was a "misconception" that

a linear feature in a particle defined it as a bundle.

Sanchez asserted that "just the nature of an elongated particle has nothing

to do with whether it's asbestos or not," and that there is "no way to know" where

A-5711-17 25 a single fiber "came from in and of itself." Other techniques should be added

when a single fiber is detected by TEM to look at the "population characteristics

of those individual fibers . . . to determine what it would have come from ." He

said, "PLM data complimentary to the TEM data can inform you whether what

you're seeing is, in fact, asbestiform or not."

Sanchez stated that, he had reviewed hundreds of documents related to the

testing of talc ore and talc used in JBP. He said there was no evidence J&J

cosmetic talc products were contaminated with asbestos. He noted that in 1983,

the United States Geological Survey (USGS) had concurred in a determination

by EMV Associates, Inc. that several J&J talc samples did not contain asbestos.

He also noted that in 1983, the FDA had issued a letter indicating that in

the 1960s and 1970s, some cosmetic talc products contained asbestiform

minerals. The FDA stated, however, that it considered the analytical results "of

questionable reliability." The FDA concluded there was no "health hazard

attributable to asbestos in cosmetic talc" and no need for a warning label.

Sanchez criticized Longo's analysis of the vintage JBP samples. He stated

that Longo's analysis inappropriately combined data across different samples,

and that Longo's data was consistent with non-asbestiform amphiboles. He

noted that Longo had found non-asbestiform amphiboles in a few samples, but

A-5711-17 26 stated that on occasion, this is what you would "expect from the geology of

th[e]se deposits . . . ." He said Longo's testing confirmed his conclusion that

there were non-asbestiform amphiboles in some of the talc deposits.

Sanchez also commented on the "tissue digestion grids" prepared by

Ronald E. Gordon, who testified for plaintiffs as an expert in "tissue digestion

analysis for asbestos and other particulates in human tissue." Gordon found

three tremolite asbestos fibers and two anthophyllite asbestos fibers in Mr.

Lanzo's lymph nodes, and he identified the fibers as asbestos, based on their

lengths, aspect ratios, and "diffraction" patterns. Gordon also found talc in Mr.

Lanzo's tissues.

Sanchez stated that he was unable to identify any of the particles that

Gordon had identified. However, Sanchez identified three elongated particles

that Gordon had not reported.

The first was a tremolite fiber, but Sanchez could not definitively state

whether it was asbestiform. The second particle was a talc anthophyllite

"transitional particle" but such particles are not asbestos. The third particle was

a crocidolite fiber. Sanchez noted that crocidolite is a commercial form of

asbestos mined in South Africa, Bolivia, and Australia. He said that it has never

"been associated as a contaminant of cosmetic talc."

A-5711-17 27 On cross-examination, Sanchez admitted that the crocidolite particle he

identified was single fiber. He acknowledged that if there was a single particle

whose chemistry was consistent with crocidolite, it could also be riebeckite, the

non-asbestiform version of the mineral. He noted that a population of fibers

consistent with crocidolite had not been found in Mr. Lanzo's tissue.

On redirect, Sanchez testified he was confident the fiber he identified as

crocidolite was not the non-asbestiform version riebeckite. He said riebeckite

is a "very uncommon amphibole." Sanchez stated he did not believe

contamination from his lab could explain the presence of the crocidolite fiber in

the grids he had examined.

III.

JJCI's and Imerys' primary argument is that the trial court erred by

admitting expert testimony from Webber and Moline. Defendants assert that by

allowing the two experts to testify that non-asbestiform minerals which are

similar in size to asbestiform minerals can cause mesothelioma, the trial court

misapplied the well-established judicial gatekeeping procedures our Supreme

Court "reinforce[d]" in In re Accutane Litigation (Accutane), 234 N.J. 340, 388

(2018).

A-5711-17 28 Specifically, JJCI and Imerys contend both experts failed to: (1) explain

what causes the human body to respond in the same way to the different mineral

forms; (2) acknowledge the contrary opinions of scientists and government

agencies; (3) provide evidentiary support for their opinion that non -asbestiform

minerals can cause mesothelioma; and (4) produce evidence that their theory

that non-asbestiform minerals are harmful had been subject to peer-review and

publication or was generally accepted in the scientific community. They argue

that the court's decision to deny their motion to bar this testimony was clearly

capable of producing an unjust result and, accordingly, new trials are warranted.

Having considered JJCI and Imerys' contentions in light of the record and

the applicable law, we agree the trial court mistakenly exercised its discretion

by denying their motions and this error was not harmless under the

circumstances presented in this case. Therefore, we reverse and remand for new

trials for both defendants.

A. Accutane and the Trial Court's Role as Gatekeeper for Expert Testimony.

We begin by noting that the Supreme Court's decision in Accutane is

applicable here even though that decision was issued approximately two months

after the conclusion of the trial. In civil cases, "judicial decisions are presumed

A-5711-17 29 to apply retroactively." In re Contest of Nov. 8, 2011 Gen. Election of Off. of

N.J. Gen. Assembly, 210 N.J. 29, 68 (2012) (citing Fischer v. Canario, 143 N.J.

235, 243 (1996)). To avoid that presumption, a party must show the decision

established a new principle "either by overruling clear past precedent on which

litigants may have relied . . . or by deciding an issue of first impression whose

resolution was not clearly foreshadowed." Coons v. Am. Honda Motor Co., 96

N.J. 419, 427 (1984) (quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 106

(1971)).

Accutane did not alter N.J.R.E. 702 or 703, nor would its holding "produce

substantial inequitable results if applied retroactively." Ibid. (quoting Chevron

Oil Co., 404 U.S. at 107). Instead, in reaching its decision, the Supreme Court

"perceive[d] little distinction between Daubert's[7] principles regarding expert

testimony and our own, and believe[d] that its factors for assessing the reliability

of expert testimony will aid our trial courts in their role as the gatekeeper of

scientific expert testimony in civil cases." Accutane, 234 N.J. at 347-48. The

Court "reconcile[d] our standard under N.J.R.E. 702, and relatedly N.J.R.E. 703,

with the federal Daubert standard to incorporate its factors for civil cases." Id.

7 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). A-5711-17 30 at 348. Indeed, none of the parties argue otherwise. Accordingly, we are

satisfied that Accutane sets forth the standards that govern our review.

As set forth in Accutane, an expert's opinion on causation may be admitted

when "based on a sound, adequately-founded scientific methodology involving

data and information of the type reasonably relied on by experts in the scientific

field." Id. at 349-50 (quoting Rubanick v. Witco Chem. Corp., 125 N.J. 421,

449 (1991)). In cases "involving novel theories of causation," a court must

review the "data and studies relied on by experts proffering an opinion in order

to 'determine whether the expert's opinion is derived from a sound and well-

founded methodology that is supported by some expert consensus in the

appropriate field.'" Id. at 350 (quoting Landrigan v. Celotex Corp., 127 N.J.

404, 417 (1992)).

A court must also "assess the soundness of the proffered methodology and

the qualifications of the expert." Rubanick, 125 N.J. at 454. The focus must be

"solely on principles and methodology, not on the conclusions that they

generate." Kemp ex rel. Wright v. State, 174 N.J. 412, 426 (2002) (quoting

Daubert, 509 U.S. at 595).

In Accutane, the Court took the opportunity to "clarify and reinforce the

proper role for the trial court as the gatekeeper of expert witness testimony."

A-5711-17 31 234 N.J. at 388. The Court explained that when it adopted the more relaxed

approach for expert testimony, "it envisioned the trial court's function as that of

a gatekeeper – deciding what is reliable enough to be admitted and what is to be

excluded. Those are not credibility determinations that are the province of the

jury, but rather legal determinations about the reliability of the expert's

methodology." Ibid.

In performing that function, "the trial court is responsible for advancing

the truth-seeking function of our system of justice, while still allowing for new

or developing opinions on medical causation that may not yet have gained

general acceptance." Id. at 389. In essence, "[t]he trial court is the spigot that

allows novel expert testimony in areas of evolving medical causation science,

provided the proponent of the expert can demonstrate that the expert adheres to

scientific norms in distinct ways that we have identified." Ibid.

This "gatekeeping role requires care." Ibid. The Court emphasized that

the trial court "must ensure compliance with the requirement of 'some expert

consensus that the methodology and the underlying data are generally followed

by experts in the field,'" ibid. (quoting Rubanick, 125 N.J. at 450), "distinguish

scientifically sound reasoning from that of the self-validating expert,"

Landrigan, 127 N.J. at 414, and disallow "unsubstantiated personal beliefs."

A-5711-17 32 Kemp, 174 N.J. at 427. "Properly exercised, the gatekeeping function prevents

the jury's exposure to unsound science through the compelling voice of an

expert." Accutane, 234 N.J. at 389.

The Court emphasized that it expects trial courts "to assess both the

methodology used by the expert to arrive at an opinion and the underlying data

used in the formation of the opinion" to "ensure that the expert is adherin g to

norms accepted by fellow members of the pertinent scientific community." Id.

at 396-97. In short, "[m]ethodology, in all its parts, is the focus of the reliability

assessment, not outcome." Id. at 397. "It is not for a trial court to bless new

'inspired' science theory; the goal is to permit the jury to hear reliable science to

support the expert opinion." Ibid.; cf. Rosen v. Ciba-Geigy Corp., 78 F.3d 316,

319 (7th Cir. 1996) (observing that "the courtroom is not the place for scientific

guesswork, even of the inspired sort").

The Court therefore concluded that New Jersey law and Daubert were

"aligned in their general approach to a methodology-based test for reliability.

Both ask whether an expert's reasoning or methodology underlying the

testimony is scientifically valid." Accutane, 234 N.J. at 397 (citing Daubert,

509 U.S. at 594-95; Rubanick, 125 N.J. at 449). "[B]oth standards look to

whether that reasoning or methodology properly can be applied to facts in issue."

A-5711-17 33 Ibid. The Court, thus, "[d]istilled" the Daubert factors into the following

"general factors":

1) Whether the scientific theory can be, or at any time has been, tested;

2) Whether the scientific theory has been subjected to peer review and publication, noting that publication is one form of peer review but is not a "sine qua non";

3) Whether there is any known or potential rate of error and whether there exist any standards for maintaining or controlling the technique's operation; and

4) Whether there does exist a general acceptance in the scientific community about the scientific theory.

[Id. at 398.]

These factors, according to the Court, "dovetail with the overall goals of our

evidential standard and . . . provide a helpful – but not necessary or definitive –

guide for our courts to consider when performing their gatekeeper role

concerning the admission of expert testimony." Id. at 398-99.

The Court concluded that its "view of proper gatekeeping in a

methodology-based approach to reliability for expert scientific testimony

requires the proponent to demonstrate that the expert applies . . . scientifica lly

recognized methodology in the way that others in the field practice the

methodology." Id. at 399-400. When a proponent fails to demonstrate "the

A-5711-17 34 soundness of a methodology, both in terms of its approach to reasoning and to

its use of data, from the perspective of others within the relevant scientific

community, the gatekeeper should exclude the proposed expert testimony on the

basis that it is unreliable." Id. at 400.

B. Admission of Expert Testimony by Webber and Moline.

In this case, JJCI filed motions to bar Webber and Moline from testifying

that non-asbestiform cleavage fragments can cause mesothelioma. Imerys

joined in both motions. The trial court did not conduct a Rule 104 hearing to

perform the analysis required by Accutane and the prior decisions upon which

it is based. The court also did not assess the methodology, or the underlying

data used by the two experts to form their opinions.

Instead, in deciding to admit Webber's proposed testimony, the court

merely stated that "[t]he issue of cleavage fragments [was] an area that's highly

contested between plaintiff[s'] experts and defense experts." The court's ruling

denying defendants' motion to exclude Moline's testimony was equally brief. It

simply noted that "the definition of asbestos, the asbestiform versus the non-

asbestiform habit" was "one of the central issues in these talc cases . . . ."

As required by Accutane, we apply an abuse of discretion standard of

review when "assessing whether a trial court has properly admitted or excl uded

A-5711-17 35 expert scientific testimony in a civil case." 234 N.J. at 348. The trial court's

ruling should be reversed "only if it 'was so wide off the mark that a manifest

denial of justice resulted.'" Rodriguez v. Wal-Mart Stores, Inc., 237 N.J. 36, 57

(2019) (quoting Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016)). Any

error deemed harmless should be disregarded. Velazquez v. City of Camden,

447 N.J. Super. 224, 232 (App. Div. 2016). "Only those errors 'clearly capable

of producing an unjust result,' will result in a reversal of a jury verdict.'" Ibid.

(quoting R. 2:10-2).8

1. Webber's Testimony.

Webber opined that cleavage fragments had the same potential to cause

disease as asbestiform fibers with like aerodynamic dimensions. However, he

testified at trial that he had not conducted, nor was he aware of, any studies

showing that non-asbestiform cleavage fragments can cause mesothelioma. He

also had not published anything stating that opinion. Although in his report he

8 Plaintiffs argue that a plain error standard of review should apply to Webber's testimony based upon their claim that defendants only challenged that expert's qualifications and not his opinions. See State v. Gore, 205 N.J. 363, 382-83 (2011) (plain error standard applies when no objection is raised at trial). However, the record does not support plaintiffs' contention that defendants failed to challenge Webber's opinion that non-asbestiform minerals can cause mesothelioma. In its brief seeking to bar this testimony, JJCI specifically argued there was no scientific evidence to support Webber's opinion, and Imerys joined in JJCI's motion. A-5711-17 36 stated that "[o]nce in the lungs, cleavage fragments almost certainly present the

same risk as asbestos fibers of the same dimension because of their identical

chemical composition and their biodurability," he provided no citations to any

authority in support of that statement.

At trial, Webber relied on four authorities in support of his opinion.

Webber first cited a published study by a pathologist, Victor Roggli, which

found that "tremolite and other non-commercial amphibole fibers [were] present

in the lungs of a substantial proportion of patients with mesothelioma" and that

the "fibers appear[ed] to be the likely cause of the disease." However, because

the study did not discriminate between asbestiform and non-asbestiform fibers,

it did not support the conclusion that non-asbestiform tremolite causes

mesothelioma, as Webber claimed.

The second publication Webber cited was titled "Differentiating Non-

Asbestiform Amphibole and Amphibole Asbestos by Size Characteristics"

published in the December 2008, Journal of Occupational and Environmental

Hygiene and co-authored by Dr. Martin Harper, who was associated with

NIOSH (2008 Harper article). The article baldly stated that NIOSH did not

currently believe there was "sufficient evidence for a different toxicity for non-

asbestiform amphibole particles that meet the morphological criteria for a fiber."

A-5711-17 37 Webber simply quoted this statement from the article and asserted that it

supported his opinion, but he did not identify or explain any scientific evidence

that formed the basis for the statement.

Moreover, NIOSH clarified its position in April 2011 when it published

Current Intelligence Bulletin 62, titled "Asbestos Fibers and Other Elongate

Mineral Particles: State of the Science and Roadmap for Research" (2011

Roadmap). In that publication, NIOSH stated that its inclusion of non-

asbestiform minerals in the definition of airborne asbestos fibers had been

"based on inconclusive science." The agency commented that:

Epidemiological evidence clearly indicates a causal relationship between exposure to fibers from the asbestos minerals and various adverse health outcomes, including asbestosis, lung cancer, and mesothelioma. However, NIOSH has viewed as inconclusive the results from epidemiological studies of workers exposed to EMPs [9] from the non[-]asbestiform analogs of the asbestos minerals.

[(Emphasis added).]

Webber also referred to an article written by Gregory Meeker from the

USGS that was published in October 2009 (2009 Meeker article). Meeker wrote

that "using the term 'asbestiform' to differentiate a hazardous from a non -

9 "EMPs" are "elongate mineral particles."

A-5711-17 38 hazardous substance has no foundational basis in the medical sciences."

However, the article did not report the results of a scientific study and was not

peer-reviewed. In addition, Meeker stated that "[t]oxicological evidence

comparing human and animal health effects of asbestiform and non-asbestiform

minerals is based primarily on particle size and shape and remains

controversial."

The final publication that Webber relied upon was the 2006 EPA Region

9 Response, which stated that "[f]or the purposes of public health assessment

and protection, [the] EPA makes no distinction between fibers and cleavage

fragments of comparable chemical composition, size, and shape." However, in

the publication, the EPA provided no details of any studies underlying its

assessment, and Webber did not discuss any such details in his testimony.

In Accutane, the Court stressed the importance of the trial court's

gatekeeping role in assessing the reasonableness of the methodology and

underlying data used in forming an expert's opinion. 234 N.J. at 399-400. Here,

Webber did not identify any data underlying his opinion. Further, he did not

demonstrate that any of the authorities he relied on would be reasonably relied

on by other experts in his field to reach an opinion regarding causation. Id. at

400; Rubanick, 125 N.J. at 451.

A-5711-17 39 As we noted, the Roggli study made no attempt to discern whether non-

asbestiform tremolite caused mesothelioma. The 2008 Harper article stated that

there was insufficient evidence that toxicity differed between asbestiform and

non-asbestiform particles, but that statement alone does not provide evidence

that non-asbestiform particles can cause mesothelioma.

In addition, the 2009 Meeker article stated that toxicological evidence

regarding health effects of asbestiform and non-asbestiform particles remained

controversial. Nowhere does that article state that non-asbestiform minerals can

cause mesothelioma. Finally, the 2006 EPA Region 9 Response stated that the

EPA made no distinction for purposes of public health between asbestiform

fibers and cleavage fragments of similar dimensions and chemical compositions,

but the Response did not say that exposure to cleavage fragments caused

Consideration of the Daubert factors does not support admission of

Webber's opinion. His opinion has not been tested as he admitted there are no

studies demonstrating that non-asbestiform versions of the six regulated

asbestos minerals cause mesothelioma. Accutane, 234 N.J. at 398. Nor has that

theory been subjected to peer review and publication. Ibid. Moreover, Webber

did not show that his theory is generally accepted in the scientific community.

A-5711-17 40 In short, plaintiffs failed to establish that Webber's "methodology

involv[ed] data and information of the type reasonably relied on by experts in

the scientific field." Rubanick, 125 N.J. at 449. Moreover, the trial court did

not assess the methodology, or the underlying data that Webber used to form his

opinion. Accutane, 234 N.J. at 396. The court only noted that "[t]he issue of

cleavage fragments [was] an area that's highly contested between plaintiff[s']

experts and defense experts."

We are therefore convinced the trial court did not perform its required

gatekeeping function and mistakenly exercised its discretion by permitting

Webber to testify that non-asbestiform cleavage fragments can cause

2. Moline's Testimony.

Moline's expert testimony that non-asbestiform minerals can cause

mesothelioma suffered from many of the same defects as Webber's opinion on

this topic. The trial court once again did not perform the rigorous assessment

required by Accutane to determine whether Moline's opinions met the Daubert

standards.

Relying on the 2006 EPA Region 9 Response, Moline testified there was

no difference between asbestiform fibers and non-asbestiform cleavage

A-5711-17 41 fragments with the same dimensions and chemical composition "in terms of their

ability to cause disease." She claimed her view was generally accepted in the

medical literature, that there has been published literature showing that non -

asbestiform amphiboles cause mesothelioma, and that there have been studies

of groups exposed to non-asbestiform minerals that show elevated rates of

mesothelioma. Moline did not, however, identify any other specific literature

or studies supporting those claims during her testimony.

In her expert report, Moline stated that the EPA, the United States Centers

for Disease Control and Prevention (CDC), and the American Thoracic Society

had rejected the "notion" that labeling anthophyllite and tremolite as "either

'non-asbestiform' or 'cleavage fragments' . . . has biological significance." She

did not, however, cite to specific publications by those authorities except for the

2006 EPA Region 9 Response.

Moline also wrote that "mesotheliomas [had] been documented among

New York State miners and millers of talc containing approximately 50% 'non-

asbestiform' anthophyllite and tremolite." The source for that statement is not,

however, readily apparent in her report. Notably, Moline did not testify

regarding any studies conducted or data provided by the American Thoracic

A-5711-17 42 Society, CDC, or Roggli, despite plaintiffs' argument that she relied on these

authorities.

At trial, defendants confronted Moline with testimony she gave previously

in another matter, where she stated she did not "have enough information . . .

one way or the other" to opine that non-asbestiform minerals were carcinogenic.

In response, Moline claimed that since the time she gave that conflicting

opinion, she had "the opportunity to review additional studies and [had] found

information that ha[d] shown that there are cases of mesothelioma among

individuals that have had those exposures." However, Moline did not identify

the studies or information she was relying on and testified that she was "unaware

of any studies that have specifically looked at [that] question" of whether

"asbestos-related diseases can be caused by the non-asbestiform varieties of the

six regulated forms of asbestos."

As was the case with Webber's testimony, the trial court did not assess the

methodology or the underlying data that Moline used to form her opinion.

Accutane, 234 N.J. at 396. The court's only comment in admitting Moline's

testimony over defendants' objection was that "the definition of asbestos, the

asbestiform versus the non-asbestiform habit" was "one of the central issues" in

the case.

A-5711-17 43 Accordingly, we conclude that the trial court erred by failing to perform

its required gatekeeping function with regard to Moline's testimony. The court

did not conduct a Rule 104 hearing to test her theory and conducted no analysis

as to whether the Daubert factors had been met. Accutane, 234 N.J. at 398.

Thus, the court erred by allowing Moline to testify that there was no difference

between asbestiform fibers and non-asbestiform cleavage fragments with the

same dimensions and chemical composition "in terms of their ability to cause

disease."

C. The Admission of The Expert Testimony Was Not Harmless Error.

Having concluded that the trial court erred by allowing Webber and

Moline to provide expert testimony that non-asbestiform minerals can cause

mesothelioma, we must determine whether the mistaken rulings were "so wide

off the mark that a manifest denial of justice resulted." Rodriguez, 237 N.J. at

57 (quoting Griffin, 225 N.J. at 413). Based on our thorough review of the

record, we are convinced that the judge's erroneous decisions were "clearly

capable of producing an unjust result," and therefore, new trials are required.

Velazquez, 447 N.J. Super. at 232 (quoting R. 2:10-2).

Although Webber and Moline testified that non-asbestiform minerals

could cause mesothelioma, neither expert opined that non-asbestiform cleavage

A-5711-17 44 fragments were detected in JBP. However, Longo addressed that issue

extensively in his testimony concerning the vintage JBP samples.

Longo initially testified that most of the structures he identified in the JBP

samples were bundles of fibers, and he denied that any of the structures he found

were cleavage fragments. But, on cross-examination, Longo admitted that long,

thin cleavage fragments can resemble asbestos fibers, and that TEM, which was

the tool he used in his analysis, could not identify a single fiber as asbestiform

or non-asbestiform. When questioned about a single tremolite fiber detected in

one of the samples, Longo could not say whether it was asbestiform or non -

asbestiform.

Defendants' expert Sanchez testified that Longo's findings were

"consistent with non-asbestiform amphiboles." He said Longo's analyses

showed that non-asbestiform amphiboles had been found in a few of the

samples, which is what he would have expected. Before discussing Longo's

testing of the vintage samples, Sanchez testified that non-asbestiform tremolite

and actinolite had been found in a sample of J&J Vermont talc in a 1977 study

commissioned by NIOSH and that the finding was consistent with a study

conducted of samples from a Windsor mine. Sanchez further testified that the

results of the two studies were consistent with what he would "expect to find in

A-5711-17 45 [the] geology of that area." Sanchez stated that Longo's work confirmed his

conclusion that there were non-asbestiform amphiboles in some of the talc

deposits.

Through Sanchez's testimony, defendants admitted there were non-

asbestiform amphiboles present in some JBP. If the jury believed Webber's and

Moline's testimony that those non-asbestiform minerals could cause

mesothelioma, it may have concluded that the asbestiform/non-asbestiform

distinction did not matter and that defendants had essentially admitted that some

JBP contained cancer-causing amphiboles.

Longo's testimony shows that he made no attempt to distinguish between

asbestiform and non-asbestiform amphiboles for the single fibers he detected in

the vintage samples. However, he also testified that most of the particles he

found were bundles. Sanchez challenged Longo's aspect ratio analysis of the

vintage samples but did not specifically challenge Longo's finding of bundles. 10

Sanchez testified that "bundle morphology [was] definitive as to whether or not

you have asbestiform amphibole." However, Sanchez also testified generally

10 The court apparently granted an application by plaintiffs to limit Sanchez's testimony regarding Longo's testing of the samples to aspect ratios because Sanchez had "made no disclosure and no criticism" of Longo's work. A-5711-17 46 that cleavage fragments could have "linear features" and that there was a

"misconception" that a linear feature in a particle defined it as a bundle.

Perhaps anticipating that defendants would claim only non-asbestiform

amphiboles were present in some of the talc used in JBP, counsel for plaintiffs

argued in his opening statement that non-asbestiform fibers could cause

asbestos-related disease. Plaintiffs' counsel told the jury that:

[J&J] got together with other companies that were selling talc and they chose to call the asbestos something else. I guess on the theory that if you don't call it asbestos then it can't cause asbestos-related disease.

You see, [J&J] and the other talc companies argued that these minerals come in different forms, they grow in the ground in different forms. On the right you see something very fibrous, you see all the fibers. On the left it's rocky, it's chunky and it's non-fibrous. And they argued and they claimed that there is a difference when it comes to . . . the ability to cause disease . . . on whether or not the single fiber that gets into the lungs, that gets into the pleura, that attacks the cells grew up one way or grew up another.

....

The defendants will urge everyone to adopt these other definitions. And our experts will tell you it doesn't matter what you call something. The cells of our body don't know the difference about where they grew up, . . . whether they grew up as a fiber or as a rock. It's the same mineral. It's the same chemistry. It's the same dimensions. It causes the same diseases.

A-5711-17 47 ....

[Webber is] going to explain to us that it doesn't matter what you call it, it matters whether or not it can be breathed in and it matters whether or not it can penetrate all the way to where the cancer starts. That's the important thing.

Counsel also informed the jury that "[a]sbestiform is the definition that

the defendants want to use." In discussing defendants' experts, counsel claimed

that "the refrain is always the same. It's not asbestos. It's not asbestos. It's not

asbestos. It's not asbestos. We have our own definitions that we apply."

Counsel added that "the key is finding that the workers get sick. That there's

mesothelioma. And so it doesn't matter what you call it."

Addressing the "cleavage fragment argument" in closing remarks to the

jury, plaintiffs' counsel contended there were different definitions of asbestos

for commercial and health purposes, and that minerals with the same chemistry

and dimensions cause the same diseases. The trial court instructed the jury that,

before considering whether plaintiffs had proven their failure-to-warn and

design-defect claims, it must first determine whether Mr. Lanzo had been

exposed to asbestos from JBP or SS. Based on Webber's and Moline's improper

testimony, the jury could have reached the conclusion that there was more than

A-5711-17 48 one definition for asbestos, and that a public health definition included non-

asbestiform tremolite, actinolite, and anthophyllite.

Therefore, we conclude that the trial court's admission of Webber's and

Moline's opinions that non-asbestiform amphiboles could cause mesothelioma

was clearly capable of producing an unjust result in light of Longo's and

Sanchez's testimony and plaintiffs' counsel's repeated arguments echoing their

unsupported views. If the jury accepted the experts' unverified opinions, it could

certainly believe that it did not matter, in terms of the ability to cause disease,

whether Longo correctly identified the structures he found in the vintage

samples as bundles or whether those structures were asbestiform or non-

Furthermore, some of the historical testing that Webber had identified did

not differentiate between asbestiform and non-asbestiform minerals, and the jury

could have concluded that the distinction was irrelevant. Most concerning is the

potential impact of Webber's and Moline's testimony since Sanchez had

admitted there were non-asbestiform amphiboles in some of the talc used in JBP.

Plaintiffs argue that Webber's and Moline's opinions could not have

affected the verdict because the main question asked of the jury on the verdict

sheet was whether plaintiffs had proven that Mr. Lanzo was exposed to asbestos

A-5711-17 49 from JBP and/or SS and whether that exposure was a substantial factor in

causing his mesothelioma. We disagree.

Webber testified there were different definitions of asbestos for

commercial and public health purposes, and that it did not matter whether one

called a particle an asbestiform fiber or a cleavage fragment because if it had

the right morphological, mineralogical, and chemical characteristics, it could

cause disease. Gordon, who was one of plaintiffs' experts, also suggested that a

mineral did not have to grow in an asbestiform habit to be asbestos.

In addition, as noted, plaintiffs argued in their opening and closing

statements to the jury that there was more than one definition for asbestos and

that the distinction between asbestiform fibers and cleavage fragments with the

same chemical composition and dimensions was irrelevant to the ability to cause

disease.

Therefore, based on the testimony of Webber and Gordon and plaintiffs '

opening and closing remarks, the jury could have concluded that the term

"asbestos" in the question on the verdict sheet referred to non-asbestiform as

well as asbestiform minerals. We reject plaintiffs' contention that the jury's

answer on the verdict sheet shows that even if the trial court erred by admitting

Webber's and Moline's testimony, the error was harmless.

A-5711-17 50 In sum, the trial court did not perform its gatekeeping function and

erroneously permitted Webber and Moline to testify concerning their untested

opinion that non-asbestiform minerals could cause mesothelioma. Moreover,

the admission of Webber's and Moline's testimony that cleavage fragments can

cause asbestos-disease was "clearly capable of producing an unjust result." R.

2:10-2. Therefore, we reverse the judgment and remand the matter for new trials

for both defendants.

IV.

We next consider Imerys' contention that the trial court erred by providing

the jury with an adverse inference instruction. Imerys contends the instruction

was unjustified and unduly prejudicial. JJCI joins in this argument.

Here, plaintiffs sought the adverse inference instruction as to Imerys as a

sanction for spoliation of evidence, arguing Imerys' had concealed historic talc

samples and TEM grids during discovery and failed to retain certain talc

samples.11 Among other things, plaintiffs' interrogatories asked Imerys to

identify any "talc, and/or products containing talc" that it manufactured and had

within its possession, custody, or control. In response, Imerys stated that it was

11 TEM grids are used to analyze samples using TEM. A-5711-17 51 "unable to locate any samples or exemplars" of the product sold to J&J "during

the relevant time period" after a "reasonable and diligent search."

Pier testified, however, that she maintained historic talc samples in an

offsite storage facility. She also explained that Imerys maintains all TEM grids,

but admitted they were not turned over in litigation. Additionally, plaintiffs

produced a 2009 email noting the existence of preserved talc samples from 1967

through 1984. Pier testified she did not look for the samples referenced in the

email. At trial, Imerys conceded the discovery violation and the existence of

samples dating back to 2001.

Regarding the alleged destruction of the samples, Pier testified that

Imerys' corporate predecessor, Luzenac America, Inc. (Luzenac), had a policy

to destroy talc samples, but not TEM grids, after two years even during periods

of ongoing litigation, and that the policy remained in place. Furthermore, the

outside laboratories that Imerys utilized for testing had also destroyed talc

samples, and neither Imerys nor Luzenac acted to prevent the laboratories from

destroying the samples.

The trial court found there was no evidence of intentional destruction but

Imerys had improperly discarded evidence. The court found Imerys "had a legal

obligation . . . to keep the samples and . . . grids since [Imerys was] aware of the

A-5711-17 52 talc asbestos litigation going back to the late 1970s." The court noted "this

evidence is certainly material" to this and other cases.

Although the court initially decided to suppress Imerys' answer and

defenses, it reconsidered that decision and decided to provide the jury with an

adverse inference instruction regarding Imerys. The court told the jury it had:

determined that the defendant Imerys failed to identify the existence of certain talc samples and TEM grids in its possession. It was obligated, by the rules governing discovery, to advise the plaintiff of the existence of such talc samples and TEM grids so an expert on behalf of plaintiff could have reviewed same, issued an opinion[,] and provided testimony for the jury's consideration.

The court has also found, based on the evidence in this case, that talc samples and TEM grids in the control of defendant Imerys were wrongfully withheld and as to some samples, destroyed or discarded.

You may infer that the missing evidence may have been helpful to the plaintiffs' case to the detriment of defendant Imerys.

As jurors, you may accept or reject the inference, but I caution you that any inference you may draw as to this specific charge would be as to defendant Imerys only and no other defendant in this case.

I charge you specifically that [JJCI] was not involved in the conduct just described.

A-5711-17 53 On appeal, Imerys does not challenge the court's finding that it failed to

provide discovery and that it discarded certain talc samples. Imerys argues,

however, it had no duty to preserve the talc samples it discarded, the alleged

spoliation was neither intentional nor reckless, plaintiffs suffered no harm, and

the adverse inference instruction was overbroad and misleading.

The purpose of an adverse inference instruction is to level "the playing

field where evidence has been hidden or destroyed." Rosenblit v. Zimmerman,

166 N.J. 391, 401 (2001). When crafting remedies for spoliation, the trial courts

should ensure "the consequence of the lost evidence falls on the spoliator rather

than on an innocent party." Robertet Flavors, Inc. v. Tri-Form Const., Inc., 203

N.J. 252, 284 (2010). "'[A]n adverse inference instruction is a powerful tool in

a jury trial' that 'when not warranted, creates a substantial danger of unfair

prejudice.'" Washington v. Perez, 219 N.J. 338, 357 (2014) (quoting Morris v.

Union Pac. R.R., 373 F.3d 896, 900, 903 (8th Cir. 2004)).

Spoliation refers to "the hiding or destroying of litigation evidence,

generally by an adverse party." Rosenblit, 166 N.J. at 401. The duty to preserve

evidence "arises where there is: (1) pending or probable litigation involving the

[opposing party]; (2) knowledge by the [spoliator] of the existence or likelihood

of litigation; (3) foreseeability of harm to the [opposing party], or in other words,

A-5711-17 54 discarding the evidence would be prejudicial to [the opposing party]; and (4)

evidence relevant to the litigation." Aetna Life & Cas. Co. v. Imet Mason

Contractors, 309 N.J. Super. 358, 366 (App. Div. 1998) (quoting Hirsch v. Gen.

Motors Corp., 266 N.J. Super. 222, 250 (Law Div. 1993)); see also State v.

Cullen, 424 N.J. Super. 566, 587 (App. Div. 2012). "[T]he duty to preserve

evidence is not boundless." Hirsch, 266 N.J. Super. at 251. "A potential

spoliator need do only what is reasonable under the circumstances." Ibid.

(citation omitted).

At the outset, we note Imerys' argument primarily is focused upon the

destruction of the talc samples. The trial court's decision to provide an adverse

inference instruction also was based on the discovery violation.

A. Duty to Preserve Talc Samples.

Imerys argues that it owed no duty to plaintiffs to preserve talc samples

or modify its standard procedure to discard samples after two years of retention.

Imerys contends the duty to preserve evidence only arises when a potential

defendant is aware of likely or probable litigation by a particular plaintiff

asserting the claim at issue in that case. We disagree.

"[T]he existence of a duty to preserve evidence is a question of law to be

determined by the trial court." Gilleski v. Cmty. Med. Ctr., 336 N.J. Super. 646,

A-5711-17 55 653 (App. Div. 2001). Therefore, our review is de novo. Manalapan Realty, LP

v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Here, the trial court found Imerys was aware of lawsuits regarding

exposure to asbestos and therefore Imerys and its corporate predecessor had a

duty retain test samples for use in pending and future litigation. The co urt

initially noted that, "at a minimum," Imerys was on notice of the need to preserve

samples for litigation in 2009, as of the date of the email acknowledging the

existence of preserved talc samples.

The court also noted that, based on Downey's testimony, Imerys was

aware of talc-related asbestos litigation as early as 1979, and Cyprus took steps

to avoid potential liability from that lawsuit. 12 The court pointed out that when

Cyprus purchased the Vermont mines from J&J in 1989 and entered into an

exclusive agreement to supply talc to J&J, it negotiated an indemnification

clause that included claims of asbestosis arising from talc exposure. The court

12 Downey testified that in Westfall v. Whittaker, Clark & Daniels, 571 F. Supp. 304 (D.R.I. 1983), a case filed in 1979, the plaintiff claimed he contracted mesothelioma from inhaling asbestos-contaminated talc while working. Downey noted that Metropolitan Talc Company (MTC) was a defendant in that action. Downey explained that when Cyprus purchased MTC, it decided to acquire the company's assets, rather than its stock, to limit its potential liability. A-5711-17 56 also noted that in 1992, when Cyprus sold its talc business, it agreed to retain

liability for litigation that arose from the business.

Thus, the record shows that Imerys knew or should have known it was

probable that individuals, like Mr. Lanzo, would bring claims and allege they

suffer from asbestos-related illnesses caused by their use of J&J products made

with talc. Since tests of talc samples for the presence of asbestos could be

critical in such lawsuits, it was foreseeable that litigants pursuing these claims

would be prejudiced by the destruction of this evidence. The test samples were

clearly relevant to any such lawsuit.

The decision in Williams v. BASF Catalysts LLC, 765 F.3d 306 (3d Cir.

2014), supports our conclusion. In that case, the plaintiffs alleged BASF

Catalysts, a talc mine operator and manufacturer of talc products, and its

attorneys destroyed or concealed test results documenting the presence of

asbestos in its products. Id. at 310-11. The plaintiffs claimed they were harmed

by the defendants' conduct because it caused them to settle lawsuits or dismiss

claims they otherwise would have pursued. Id. at 311. The federal district court

dismissed these claims. Ibid.

The Court of Appeals reversed and held that a plaintiff may recover in an

independent fraudulent concealment action for harm caused in a prior

A-5711-17 57 proceeding by the opposing party's spoliation of evidence. Id. at 320 (citing

Rosenblit, 166 N.J. at 407). The court noted that the first element of a fraudulent

concealment claim is that "the defendant had a legal obligation to disclose

evidence in connection with an existing or pending litigation." Id. at 320

(quoting Rosenblit, 166 N.J. at 406). The court remanded the case to the district

court, holding that the defendants were "duty-bound" to disclose evidence from

as early as 1979, when BASF "faced actual or threatened litigation over asbestos

injuries caused by its products." Id. at 321.

Similarly, in Livingston v. Isuzu Motors, Ltd., 910 F. Supp. 1473, 1478

(D. Mont. 1995), the plaintiff was injured when her vehicle rolled over and this

led to products-liability litigation regarding the potential of the vehicle at issue

to roll over. The defendants argued the trial court erred by admitting evidence

that they "destroyed raw test data" regarding the vehicle's safety tests. Id. at

1494. They claimed the practice of destroying such data was not bad faith, and

therefore, the plaintiffs could not use evidence of the destruction to show that

the defendants intended to dispose of unfavorable information. Ibid.

The court rejected the defendants' argument, observing that, "without the

raw data, it [was] nearly impossible to verify the accuracy" of Isuzu's summary

safety reports. Ibid. It held that, because the defendants had general knowledge

A-5711-17 58 of the rollover problem, they "had notice of potential relevance to this and other

litigation involving their product." Ibid. Because the evidence of destruction

of raw data was relevant to the litigation, evidence of its destruction was

properly admitted. Ibid.

The reasoning in Williams and Livingston is persuasive and consistent

with the principles enunciated in Aetna and Hirsch. We reject Imerys'

contention that the duty to preserve evidence only arises when a defendant is

aware of probable litigation involving a particular plaintiff.

Here, the record shows Imerys had sufficient knowledge that individuals

like Mr. Lanzo probably would pursue litigation and claim they suffer from

asbestos-related disease based on their exposure to products that contain talc

supplied by Imerys or its corporate predecessors. Under the circumstances,

Imerys had a duty to preserve evidence that was relevant to such claims. See

also Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 471-

72 (App. Div. 2012) (noting that "duty to preserve evidence 'arises when there

is pending or likely litigation between two parties'" (quoting Cockerline v.

Menendez, 411 N.J. Super. 596, 620 (App. Div. 2010))).

In support of its contention that it did not have a duty to preserve the

discarded talc samples, Imery relies upon our opinions in Aetna, 309 N.J. Super.

A-5711-17 59 at 366; Hirsch, 266 N.J. Super. at 251, and Cockerline, 411 N.J. Super. at 620.

Imerys' reliance upon these opinions is misplaced.

Aetna dealt with an insurer's obligation to preserve a vehicle that caught

fire which spread to several condominium units under construction. 309 N.J.

Super. at 361. The vehicle was destroyed after Aetna's expert inspected it and

produced a report indicating the fire may have been caused by a fuel-line

problem or a defect in the carburetor. Id. at 362-63. We held Aetna had a duty

to preserve the vehicle because there was a likelihood of subsequent litigation,

and disposal of the vehicle would be prejudicial to the defendants. Id. at 367.

In Hirsch, the plaintiffs' vehicle had been damaged in a fire. 266 N.J.

Super. at 228. State Farm, the plaintiffs' insurer, declared the vehicle a total loss

and paid the plaintiffs' claim. Id. at 230-31. State Farm then had the vehicle

inspected and a report was prepared, which stated that the fire had been caused

by a ruptured brake fluid line. Id. at 231.

The report eliminated other possible causes for the fire. Ibid. The vehicle

was sold. Ibid. State Farm then filed a claim on behalf of the plaintiffs against

the manufacturer and dealer alleging, among other things, that the vehicle was

defective. Id. at 232. We held the plaintiffs had a duty to preserve the vehicle

A-5711-17 60 since the inspection report placed the plaintiffs on notice of possible litigation

concerning the vehicle. Id. at 244, 251.

Cockerline arose from a multi-vehicle accident in which an individual was

killed. 411 N.J. Super. at 605-06. The appellants' vehicle was equipped with

an information system that recorded its speed and brake applications. Id. at 610.

The appellants' protocol called for retention of that information on a computer

for thirty days unless the vehicle was involved in a serious accident, in which

case the information was to be printed out and retained. Ibid.

The vehicle involved in the accident was repaired and the data purged

after thirty days. Ibid. We held the trial court did not err by providing the jury

with an adverse inference instruction based on the spoliation of evidence, noting

that there was a duty to retain the data when there is pending or likely litigation

between the two parties. Id. at 620, 622 (citing Aetna, 309 N.J. Super. at 366;

Hirsch, 266 N.J. Super. at 250-51).

As indicated, Aetna, Hirsch, and Cockerline each address a party's duty to

retain evidence that may pertain to future litigation. The decision of whether

litigation between the parties is probable or likely depends on the facts and

circumstances of a particular matter. Aetna, Hirsh, and Cockerline are factually

A-5711-17 61 distinguishable and do not support the conclusion that Imerys did not have a

duty to preserve the talc samples in this particular case.

Here, the record supports the trial court's conclusion that Imerys had

sufficient notice that a plaintiff, like Mr. Lanzo, would likely bring an action

claiming that he suffers from asbestos-related disease caused by a product made

with Imerys' talc and that it had a duty to preserve evidence relevant to such a

claim. Aetna, Hirsch, and Cockerline do not require a different conclusion.

B. Level of Intent Required for Adverse Inference Instruction.

Imerys further argues that the trial court erred by issuing an adverse

inference instruction. Imerys contends the inference was not warranted in this

case. Again, we disagree.

The most common civil remedy for spoliation is the "spoliation

inference," which "comes into play where a litigant is made aware of the

destruction or concealment of evidence during the underlying litigation."

Rosenblit, 166 N.J. at 401. The inference allows a jury "to presume that the

evidence the spoliator destroyed or otherwise concealed would have been

unfavorable to him or her," and is intended as "a method of evening the playing

field where evidence has been hidden or destroyed." Id. at 401-02. Whether to

charge the jury or impose some other sanction for spoliation is a matter "left to

A-5711-17 62 the trial court's discretion and will not be disturbed if it is just and reasonable in

the circumstances." Bldg. Materials Corp. of Am., 424 N.J. Super. at 472

(quoting Cockerline, 411 N.J. Super. at 620-21).

In Robertet, the Court stated that when deciding the appropriate sanction

for spoliation, a trial court should consider the identity of the spoliator, when

the spoliation was discovered, and the essential purposes of the sanction, which

are "to make whole, as nearly as possible, the litigant whose cause of action has

been impaired by the absence of crucial evidence; to punish the wrongdoer; and

to deter others from such conduct." 203 N.J. at 272-73 (quoting Rosenblit, 166

N.J. at 401). The trial court also should consider, "the spoliator's degree of fault,

the prejudice caused to the other party, and the availability of lesser sanctions

that will both avoid unfairness to the non-spoliator and deter future acts of

spoliation." Id. at 278 (citing Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d

76, 79 (3d Cir. 1994)).

In this case, the trial judge considered the relevant factors and made the

following findings. The judge found that Imerys and its corporate predecessors

were aware that its talc samples and TEM grids would be relevant in future

litigation involving claims that products with Imerys talc caused asbestos-

related disease.

A-5711-17 63 The judge stated that the talc samples and TEM grids were "certainly

material" to such litigation. The judge noted that during the trial, defense

counsel had criticized plaintiffs for having had Longo analyze samples

purchased on eBay, even though Imerys had concealed the existence of other

samples in discovery.

The judge further found that plaintiffs were aware JJCI had retained

samples of the talc prior to the trial because in its answers to interrogatories,

JJCI had acknowledged as much. The judge observed that plaintiffs had the

opportunity to compel production of JJCI's samples, but Imerys' samples "would

not have been the same" as those retained by JJCI. Moreover, only Imerys and

its predecessors had control of their samples, the TEM grids, and the samples

tested by outside laboratories.

In addition, the judge found that while Imerys had not intentionally

withheld, altered, or destroyed the evidence with the purpose to disrupt the

litigation, plaintiffs were prejudiced because they had to "rely on an evidential

record that did not contain evidence" that Imerys had concealed. The judge

found that the talc samples that were concealed or discarded were "crucial" to

plaintiffs' case.

A-5711-17 64 On appeal, Imerys argues that the adverse inference instruction was not

warranted because the trial court found that the discovery violation was not

intentional, and the court never found that Imerys or its corporate predecessors

acted recklessly when they destroyed the talc samples. In support of its

contention, Imerys relies upon Jerista v. Murray, 185 N.J. 175 (2005).

In Jerista, the Court stated: "If plaintiffs can make a threshold showing

that defendant's recklessness caused the loss or destruction of relevant evidence

in the underlying personal injury lawsuit, the jury should be instructed that it

may infer that the missing evidence would have been helpful to plaintiffs' case

and inured to defendant's detriment." Id. at 203. However, the Court did not

require a finding of recklessness in all cases where an adverse inference is

sought.

Furthermore, "[t]he spoliator's level of intent, whether negligent or

intentional, does not affect the spoliator's liability," and the spoliator's "state of

mind is not essential to determine the proper sanction to be imposed" because

the focus is on erasing the prejudice suffered by the opposing party. Aetna, 309

N.J. Super. at 368 (quoting Hirsch, 266 N.J. Super. at 256, 265). The spoliator's

intent is only one "factor to be considered when determining the appropriate

remedy." Ibid. (quoting Hirsch, 266 N.J. Super. at 256); see also Bldg. Materials

A-5711-17 65 Corp. of Am., 424 N.J. Super. at 472-73 (holding that "[w]hen the duty to

preserve evidence is violated, the party is responsible regardless of whether the

spoliation occurred because of intentional or negligent conduct."). Therefore,

Imerys' reliance on Jerista is misplaced.

C. Harm to the Plaintiffs.

Imerys also argues that the instruction was not warranted because

plaintiffs suffered no harm from the spoliation. Imerys notes that plaintiffs did

not request JJCI's historic talc samples for testing. However, as the trial court

noted, the Imerys samples and TEM grids that Imerys destroyed or concealed

were not the same as samples and tests of JJCI's products.

The trial court also found the TEM grids were highly relevant to the

litigation, as were the samples that outside laboratories tested for Luzenac and

Imerys. Thus, there was sufficient evidence in the record to support the trial

court's finding that plaintiffs were prejudiced by Imerys' concealment and

destruction of evidence.

D. Prejudice.

Imerys further argues charge was "deeply prejudicial" because it "allowed

the jury to resolve one of the core issues in the case against Imerys without

evidence." Imerys claims the instruction was "especially harmful" at the

A-5711-17 66 punitive damages phase of trial because it made it "far too easy" for the jury to

conclude it acted maliciously. These arguments lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

We therefore conclude the trial court did not err by providing the jury with

an adverse inference instruction as a sanction for Imerys' discovery violation

and its destruction of evidence. Imerys had a duty to disclose the evidence

sought in discovery. It also had a duty to preserve the talc samples and TEM

grids that it discarded.

Imerys further argues that, if the adverse inference instruction was

warranted, the instruction provided was improper because it allowed the jury to

assume it discarded or destroyed evidence during the discovery phase of the

case. The argument lacks sufficient merit to warrant discussion in this opinion.

R. 2:11-3(e)(1)(E). We note, however, that although the instruction could have

been more precise, it was not misleading.

V.

JJCI argues the trial court erred by denying its severance motion following

its decision to give the adverse inference charge to the jury as a remedy for

Imerys' spoliation of evidence. JJCI asserts it "was unreasonable for the court

to tell the jury it could infer that talc supplied to [JJCI] was contaminated, but

A-5711-17 67 then expect that the jury would not reach the same conclusion with respect to

that very same talc that [JJCI] bottled and sold."

Rule 4:29-2 provides a court "may order separate trials . . . to prevent

delay or prejudice." In addition, Rule 4:38-2(a) states that a court is empowered

to order a separate trial of any claim "for the convenience of the parties or to

avoid prejudice." A trial court may order separate liability or damages trials

against different defendants to avoid prejudice or jury confusion. Barbaria v.

Twp. of Sayreville, 191 N.J. Super. 395, 404 (App. Div. 1983); Eschle v. E.

Freight Ways, Inc., 128 N.J. Super. 299, 306-07 (Law Div. 1974).

In deciding a severance motion, a court must "balance[] the . . . interest in

judicial economy against the potential prejudice to a defendant." State v. Mance,

300 N.J. Super. 37, 53 (App. Div. 1997). Prejudice "cannot easily be quantified,

particularly if separate trials would not materially alter the evidence offered to

support and defeat the claims." Rendine v. Pantzer, 141 N.J. 292, 310 (1995).

However, severance may be appropriate "where a significant portion of

the evidence to be adduced at trial is admissible only as to one defendant thereby

causing prejudice to other defendants." Mance, 300 N.J. Super. at 53. We will

not reverse a trial court's decision on a severance motion unless it is shown to

be a mistaken exercise of discretion. Rendine, 141 N.J. at 311.

A-5711-17 68 It is undisputed that JJCI did not conceal or destroy any evidence relevant

to plaintiffs' claims. Consequently, the trial court endeavored to fashion an

instruction that would allow the jury to "infer that the missing evidence may

have been helpful to the plaintiffs' case to the detriment of defendant Imerys."

However, while the charge may have allowed the jury to draw an inference that

leveled the playing field with regard to plaintiffs' claims against Imerys, the

instruction was unduly prejudicial to JJCI.

The evidence presented at trial revealed that talc comprised more than

ninety-nine percent of JBP, and JJCI sold baby powder made from talc that

Imerys or its predecessor companies supplied. The adverse inference instruction

allowed the jury to infer the talc that Imerys supplied was contaminated with

asbestos. If that were the case, the jury could conclude that JJCI's talc products

were similarly contaminated.

As stated previously the trial judge instructed the jury that any adverse

inference it chose to draw "would be as to defendant Imerys only and no other

defendant in this case," and JJCI "was not involved in the conduct just

described." We recognize that jurors are presumed to follow the court's

instructions. Cohen v. Cmty. Med. Ctr., 386 N.J. Super. 387, 399 (App. Div.

2006).

A-5711-17 69 We are convinced, however, that once the jury was permitted to draw an

adverse inference that Imerys' talc was contaminated with asbestos, it would be

difficult, if not impossible, for the jury not to make the same finding as to JJCI.

We therefore conclude that the trial court erred by failing to sever the claims

against JJCI and Imerys.

In view of our decision, we need not address the other issues that JJCI and

Imerys have raised on appeal, including the contentions that: the trial court erred

by allowing Longo to testify concerning the tests of the vintage JBP samples ;

the jury instructions improperly constrained consideration of alternative causes

of Mr. Lanzo's illness; and there was insufficient evidence to support the jury's

verdicts.

Reversed and remanded to the trial court for further proceedings in

accordance with this opinion. We do not retain jurisdiction.

A-5711-17 70