Products Liability Law Daily Wrap Up, EVIDENTIARY ISSUES—ASBESTOS—N.J. Super. App. Div.: New Jersey appellate court upholds verdict for talc makers despite evidentiary objections, (Sep 3, 2019)

By Joseph Arshawsky, J.D.

A state trial court did not err by barring forty-year-old talc samples purchased online or expert testimony on the testing of those samples. The court also confirmed the propriety of other evidentiary objections at trial.

An appeal of a jury verdict rendered in favor of the manufacturers and suppliers of asbestos-containing talc products was unsuccessful after a New Jersey appellate court found in an unpublished decision that a state trial court did not err in preventing the jury from considering three putative vintage samples of talc products purchased by the decedent consumer’s counsel on eBay because of a lack of chain of custody of the samples over a forty-year period. The appellate court also confirmed the propriety of other evidentiary decisions by the trial court (Fishbain v. Colgate-Palmolive Co., August 29, 2019, per curiam).

David Fishbain’s appeal from a final judgment entered following a jury verdict rendered in favor of manufacturers Shulton, Inc. ("Shulton"), The Proctor & Gamble Company, Wyeth Holdings Corporation ("Wyeth") and Whittaker, Clark and Daniels, Inc. ("WCD") was rejected by the Appellate Division of the Superior Court of New Jersey in an unpublished decision. The court found that the trial court did not err by preventing the jury from considering three putative vintage samples purchased by Fishbain’s counsel on eBay because of a lack of chain of custody for forty years (Fishbain v. Colgate-Palmolive Co., August 29, 2019, per curiam).

On April 3, 2013, a consumer who had used a variety of talc products since the age of nine was diagnosed with epithelioid malignant mesothelioma. She and her husband filed a complaint against the manufacturers and suppliers (collectively, manufacturers) of the talc products she allegedly used—Shulton, Inc., The Proctor & Gamble Company, Wyeth Holdings Corporation, and Whittaker, Clark and Daniels, Inc. (WCD)—asserting strict liability, failure to warn, and product liability claims, as well as a loss of consortium claim. Their complaint alleged that the consumer’s exposure to asbestos in the various consumer talc products she had used—to which she was exposed from 1964 through the late 1970s—caused her to develop mesothelioma. In general terms, the complaint alleged that WCD supplied asbestos-contaminated talc to Shulton, Shulton incorporated the talc into its consumer talc products, and the consumer used and was exposed to the asbestos-contaminated products, which caused the mesothelioma that resulted in her death. The deceased consumer’s husband, individually and as executor of his wife’s estate, appealed from a final judgment entered following a jury verdict rendered in favor of the manufacturers. The manufacturers cross-appealed, arguing that if the husband’s appeal was successful and the matter remanded for trial, there were numerous errors in the court 's pretrial and trial rulings that should be reversed. A three-judge panel for the New Jersey Superior Court, Appellate Division affirmed the jury verdict and the trial court’s final judgment, and dismissed the manufacturers’ cross-appeals as moot.

The jury’s verdict. The jury returned a verdict in the manufacturers’ favor finding that the decedent’s husband failed to prove that: (1) either Shulton or WCD manufactured, sold, or distributed a talc product that was not reasonably fit, suitable, and safe for its intended and foreseeable use because it lacked a warning or because it was defectively designed; (2) the decedent had used or was exposed to a talc product manufactured, sold, or distributed by either Shulton or WCD that was not reasonably fit, suitable, and safe for its intended and foreseeable use because it lacked a warning; and (3) the decedent’s use of or exposure to a talc product manufactured, sold, or distributed by either Shulton or WCD that was not reasonably fit, suitable, and safe for its intended and foreseeable use because of a lack of warning or a defective design was a substantial factor in causing the decedent’s mesothelioma.

Admission of putative vintage samples. The husband first argued the trial court erred by barring admission of three putative vintage Shulton talc-product samples and his expert’s testimony concerning his testing of the samples. The Appellate Division was not persuaded. The husband challenged the trial court’s determination that he failed to authenticate the samples. The lower court’s determination that the husband failed to demonstrate an uninterrupted chain of custody of the samples was supported by the lack of any competent evidence establishing an uninterrupted chain of custody during the approximately forty-year period that elapsed from the samples’ alleged production and distribution in the 1960s or 1970s until they were purchased by the plaintiff’s counsel on eBay in 2012, according to the Appellate Division. As such, the appellate court found no abuse of discretion in the trial court’s finding that the plaintiff failed to sustain his burden to demonstrate a reasonable probability that the samples were in the same condition as they were when they left Shulton’s production facility forty years earlier. Therefore, the trial court’s order barring admission of the samples and the related testimony by the husband’s expert was affirmed.

Admission of corporate representative deposition testimony. In addition, the Appellate Division agreed with the husband that the trial court erred in permitting WCD’s corporate representative’s testimony explaining his understanding as to why WCD entered into a talc testing program in 1971. His response clearly was not based on his personal knowledge, was founded on what others told him, and did not fall within any exceptions to the hearsay rule. However, the appellate court was not convinced that the cumulative effect of the hearsay testimony was clearly capable of producing an unjust result.

Admission of FDA letter. Finally, the husband argued that the trial court erred by ruling during a pretrial proceeding that counsel for Colgate-Palmolive Company could show the jury a slide of a redacted version of a 1986 letter from the Food and Drug Administration (FDA) that was written in response to a citizen's petition requesting asbestos warnings on talc products. The Appellate Division was not persuaded that the admission of the letter was clearly capable of producing an unjust result.

The case is No. A-1786-15T2.

Attorneys: Amber R. Long (Szaferman, Lakind, Blumstein & Blader, PC) for David Fishbain. Alan I. Dunst (Hoagland, Longo, Moran, Dunst & Doukas, LLP) for Colgate-Palmolive Co., The Scotts Co. LLC and Whittaker, Clark and Daniels, Inc. Henry L. Miller, III (Goldberg Segalla LLP) for Shulton, Inc.

Companies: Colgate-Palmolive Co.; The Scotts Co. LLC; Whittaker, Clark and Daniels, Inc.; Shulton, Inc.

Cases: CourtDecisions EvidentiaryNews AsbestosNews HouseholdProductsNews NewJerseyNews