You may have heard the news that a New Jersey Court of Appeals tossed out the 223.8 million-dollar verdict that was awarded against Johnson and Johnson for Talc containing asbestos and causing ovarian cancer. The appellate court opinion was handed down on October 3rd, 2023, giving J&J one more bone in their attempt to avoid responsibility in the Talc ovarian cancer mass tort litigation. They have previously had several big verdicts taken against them with some success in overturning them on appeal. They have also unsuccessfully attempted a bankruptcy trick known as the Texas Two Step—and failed twice.
New Jersey Expert Opinions
Expert witnesses are just one of the costs not considered recoverable by the the courts.
In New Jersey, as in other states, the trial court acts as a gatekeeper when it comes to expert testimony. While the roles are slightly different from state to state, in New Jersey there are three prerequisites to determine whether expert testimony is admissible, namely: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert’s testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. When it comes to reliability, the court is not assessing the credibility of the opinion itself, but rather, whether the methodology used to arrive at it is one that is widely accepted by the scientific community.
The Appellate Court’s Role
When it is not clear what methodology an expert used to arrive at his conclusions, a New Jersey trial court is required to hold a preliminary-type hearing to evaluate the methodology. This allows the appellate court to review the record and determine whether the expert testimony was reliable.
Implications of the New Jersey Talc Case Reversal
In the Talc case, the New Jersey trial court declined to hold a necessary hearing to evaluate the methodology of three important experts who testified as to how there was asbestos in the Talc product and how it caused the plaintiff’s cancers. Because no hearing was held, the appellate court had no way to look at the record and draw a conclusion as to whether it was or was not based upon proper methodology. Thus, it reversed the trial court’s 223.8-million-dollar judgment and ordered the case back to the trial court for a new trial. The experts are not struck, the Court will simply have to conduct the preliminary hearing the next time around before the experts are permitted to testify. Meanwhile, Talc lawsuit lawyers continue to file new lawsuits seeking justice for plaintiffs alleging to have received ovarian cancer as a result of Talc use.
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