Our System Of Justice For Mass Tort Cases—Is This The Best We Can Do? (Barden v. Johnson & Johnson)

Here’s the latest on tort claims against Johnson & Johnson:

a $223.8 million judgment against Johnson & Johnson ($37.3 compensatory + $186.5 punitive) in favor of four plaintiffs (i.e., $55.95 million each) is . . . reversed.

The reversal opinion is Barden v. Johnson & Johnson, et al., Docket Nos. A-0047-20 thru A-0050-20, Superior Court of New Jersey, Appellate Division (decided October 3, 2023).

The appeal is about expert testimony admitted at trial to prove that Johnson & Johnson’s talc products cause cancer. The appellate court finds the expert testimony inadequate and inadmissible to prove causation.

The appellate court concludes that the trial court “misapplied the well-established judicial gatekeeping procedures” in allowing the expert testimony into evidence.

This article attempts to summarize the appellate court’s rationale.

Legal Standards for Expert Witness Testimony

–Appellate Review

A reviewing court will apply an abuse of discretion standard in “assessing whether a trial court has properly admitted or excluded expert scientific testimony in a civil case”:

The trial court’s ruling should be reversed only if it is “so wide off the mark that a manifest denial of justice resulted”; and
Harmless error should be disregarded and only errors “clearly capable of producing an unjust result” will result in the reversal of a jury verdict.

A trial court’s failure to perform its gatekeeping function, by allowing experts to testify concerning untested opinions, is error clearly capable of producing an unjust result.

–Rule of Evidence

Under N.J.R.E. 702, there are three prerequisites to determine whether expert testimony is admissible:

the intended testimony must concern a subject matter that is beyond the ken of the average juror;
the field testified to must be at a state of the art such that an expert’s testimony could be sufficiently reliable; and
the witness must have sufficient expertise to offer the intended testimony.

And here’s an important distinction for admitting expert testimony:

a trial court makes legal determinations about the reliability of an expert’s methodology; and
it is the jury’s role to assess a witness’s credibility.

–Gatekeeping Role

So, the trial court has an important gatekeeping role on expert witness testimony. In this role, trial courts must assess both:

the methodology used by the expert to arrive at an opinion; and
the underlying data used in the formation of the opinion.

This is a “rigorous” and critical role in preventing the jury from exposure to unsound science labeled expert or scientific.

When engaging in its gatekeeping analysis, the court must:

determine whether comparable experts accept the soundness of the presented methodology; and
evaluate the reasonableness of relying on the type of data and information underlying the expert’s opinion.

—Daubert Factors

To aid in evaluating an expert’s methodology, trial courts incorporate factors from the U.S. Supreme Court’s Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-95 (1993), opinion.

Daubert factors applicable in this appeal include:

Whether the scientific theory can be, or at any time has been, tested;
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“;
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
Whether there exists a general acceptance in the scientific community about the scientific theory.

Thus, the party seeking to admit expert testimony must show that the expert “applies his or her scientifically recognized methodology in a way that others in the field practice the methodology.”

Notably, an expert should not selectively choose from the scientific landscape.

A “scientific theory of causation that has not yet reached general acceptance may be found to be sufficiently reliable if it is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field.”

In this regard, the critical determination is “whether comparable experts accept the soundness of the methodology, including the reasonableness of relying on this type of underlying data and information.”

Overall, a proposed expert’s testimony should be excluded when it does not satisfy the standards for a sound methodology and the reasonable reliance on the type of data and information used by other experts in the field.

When an expert’s opinion lacks the requisite foundation, it is an inadmissible net opinion or a bare opinion that has no support in factual evidence or similar data.

Challenge to An Expert’s Testimony

Defendants claim that Expert provided unreliable opinions and should not have been allowed to testify that:

asbestos can include non-asbestos minerals and fibers; and
non-asbestos cleavage fragments can cause cancer.

Such opinions, Defendants insist, are unreliable and unsupported by data or a sound methodology.

Defendants move to exclude Expert’s testimony. The trial court denies defendants’ motion without analysis, stating that the concerns could be addressed in cross-examination.

At trial, Expert testifies that:

the geological definition of “asbestos” is a particle that contains long thin fibers that are flexible and have high tensile strength;
a fiber lacking high tensile strength and good flexibility can still be asbestos, be dangerous, and cause mesothelioma, but would not be as commercially useful;
the definition of “regulated asbestos” is long, thin, individual fibers with an aspect ratio of 3:1 or greater and with substantially parallel sides—fibers that meet this definition have been related to asbestos disease;
“cleavage fragments” would be counted as asbestos fibers because they could form by an amphibole rock breaking into elongated particles with an aspect ratio of greater than 3:1 and parallel sides;
when a cleavage fragment forms a fiber, it is considered hazardous from an environmental health perspective because it has an aspect ratio of greater than 3:1 and essentially parallel sides; and
a cleavage fragment that is a fiber could reach the alveoli and be hazardous.

To reach conclusions, Expert relies on various publications improperly—in a manner described by the appellate court like this:

as to a 1980 Bureau of Mines publication titled “Surface Charge Measurements of Amphibole Cleavage Fragments and Fibers”:
- Expert does not discuss any details of the publication, its parameters of study, or any of the scientific analysis—Expert merely says there is “some evidence” in the literature that the surface charge of a particle is a bio-activator that can cause the mesothelium or alveoli to react and lead to cancer;
- Expert cites only to the abstract of the publication to support the conclusion that the surface charge of asbestos fibers is the same as those of elongated cleavage fragments with the same aspect ratio;
as to a 2006 United States Geological Survey titled “Mineralogy and Morphology of Amphiboles Observed in Soils and Rocks in El Dorado Hills, California”:
- Expert reads to the jury a small portion of the discussion section, which says that the definition of asbestos can vary based on the source of the particles and the purpose of the particles in an industry; and
- without discussing details of the publication or any studies contained in it, Expert concludes that when trying to define asbestos in environmental terms, an analyst must look at the aspects of fibers that are pertinent to human health;
as to a 2006 United States Environmental Protection Agency Region 9 report titled “Response to the November 2005 National Stone, Sand, & Gravel Association Report . . . “:
- Expert merely reads a sentence from the publication, saying that the EPA makes no distinction between fibers and cleavage fragments of comparable chemical composition, size, and shape . . . and agrees with it;
- to validate the notion that cleavage fragments could impact human health, Expert selects a few other sentences from the report, which say that the cleavage fragment hypothesis needs to be studied further before experts can conclude that such particles are benign;
as to a 2009 article from the United States Geological Survey. Expert uses it to conclude that Johnson Baby Powder contains hazardous, cancer producing asbestos—but during cross-examination, Expert admits:
- he did not perform any exposure analysis or research to see if there were any trace amounts of asbestos in Johnson’s Baby Powder; there is no scientific study published in peer review literature that concludes that Johnson’s Baby Powder increases a person’s risk of mesothelioma; there has never been any published paper or study concluding that cleavage fragments have the same health effects as asbestos or increase a person’s risk for mesothelioma; and the Occupational Safety and Health Administration (OSHA) concludes that there is not enough substantial evidence to conclude that non-asbestos versions of tremolite, anthophyllite, and actinolite present the same health effects as asbestos; and OSHA concludes that cleavage fragments do not have similar health effects as asbestos.

Further, Expert is confronted on cross-examination with his own statement, in a prior publication, that not all particles with 3:1 aspect ratios are asbestos fibers. In reply, Expert says that his own prior statement was not “well-advised.”

Prior Case With Same Expert

In a prior case, this same appellate court analyzed the same expert testimony from the same expert and reached these conclusions:

the trial court abused its discretion in allowing the jury to hear Expert’s opinion that non-asbestos minerals similar in size to asbestos minerals can cause mesothelioma;
the trial court failed to assess Expert’s methodology, and did not consider Expert’s underlying data;
in front of the jury, Expert testified that cleavage fragments have the same potential to cause disease as asbestos fibers with similar aerodynamic dimensions and, also, that Expert is not aware of any studies showing that non-asbestos cleavage fragments can cause mesothelioma; and
Expert fails to cite any authority for the claim that cleavage fragments present the same risk as asbestos fibers because of their identical chemical composition and bio-durability.

In that prior case, this appellate court took further issue with the sources Expert relied upon:

holding that a study was insufficient to support the conclusion that non-asbestos tremolite causes mesothelioma because the study did not distinguish between asbestos and non-asbestos fibers;
a single quote from an OSHA paper is insufficient to explain the scientific basis for Expert’s opinion that non-asbestos amphibole particles could meet the definition for a fiber;
a later publication clarifying that inclusion of non-asbestos minerals in the definition of airborne asbestos fibers was based on inconclusive evidence;
Expert’s reliance on another article is flawed because it cited conclusions that have no basis in medical science, it failed to report a scientific study, and it was not peer reviewed; and
Expert improperly relied on another article that does not cite to any studies and failed to discuss any details in his testimony.

Expert’s testimony that non-asbestos cleavage fragments could cause mesothelioma was untested, and Expert failed to show that his theory was generally accepted in the scientific community.

Further, the trial court in the prior case erred because it:

failed to establish that the methodology involved data and information of the type reasonably relied upon by experts in the field;
failed to assess Expert’s methodology; and
failed to consider the underlying data that Expert used to form the opinions.

In the present case, the trial court errs by admitting Expert’s testimony, which is not harmless error.

As in the prior case, the trial court in the present case fails to perform its gatekeeping role in assessing the underlying reasonableness of expert’s methodology and underlying data in forming his opinion.

Further Problems with Expert’s Testimony

In the present case, when citing to a limited number of publications, Expert fails to identify the data he used to form his opinion and does not discuss how the authorities he relied upon provided comparable data from other experts in the same field.

Instead, Expert only generally states, without explanation or discussion, that the sources he relies upon are similarly relied upon by other unspecified experts.

In discussing one study, Expert does not discuss the details of the study or the parameters of evaluation. Expert only briefly references one sentence from the abstract of the study to support the conclusion that cleavage fragments can cause cancer.

Similarly, when discussing another study, Expert extrapolates the idea that, when studying asbestos in the environment, an analyst should look at the effects of asbestos on human health. There is no support in Expert’s testimony that the study actually makes this connection, nor does Expert explain how he reaches this conclusion.

Two of Expert’s sources in the present case are explicitly criticized in the prior case:

a 2009 article was not peer reviewed, makes controversial claims, and does not support the proposition that non-asbestos minerals can cause cancer; and
a 2006 article provides no details of any studies, makes no distinction between asbestos fibers and cleavage fragments, and does not state that exposure to cleavage fragments causes mesothelioma.

Court’s Gatekeeping Function

As to its gatekeeping function, the trial court in the present case fails to hold a hearing and makes no legal determination of reliability about Expert’s methodology.

Instead, the trial court allows the jury to hear unsound science, labeled as expert and scientific, and make credibility determinations thereon, contrary to explicit instructions in controlling case law.

Daubert Factors Applied

An application of the Daubert factors does not support admission of Expert’s testimony, because Expert’s theories are untested, are not subject to peer-review, and are not generally accepted in the scientific community.

Expert’s testimony does not explain the standards applied to reach conclusions and instead sets forth bare conclusion in the form of unsupported opinions.

Since the trial court fails to assess Expert’s methodology or underlying data, it commits harmful error by admitting expert’s testimony—which testimony is so wide off the mark that a manifest denial of justice results.

Expert theorizes, without support, that cleavage fragments can cause mesothelioma, which testimony bolsters plaintiffs’ claims that their illnesses are linked to particles that could have been present in talcum powder. Although Expert does not opine that cleavage fragments were in Johnson’s Baby Powder, Expert links the existence of cleavage fragments to mesothelioma.

Additional Experts

The appellate opinion also analyzes the testimony of three additional experts—and reaches the same not-admissible and harmful error decision on each.

End Result

The end result of the appellate court’s opinion is that the jury verdict is overturned and a new trial required—but the newly-rejected testimony of plaintiffs’ experts cannot be admitted as evidence in the new trial. This evidence exclusion is, presumably, fatal to plaintiffs’ case in the new trial.

Conclusion

Thousands of plaintiffs have received little-or-no recoveries through the courts on their claims against Johnson & Johnson.

A few others, however, have achieved judgements in fabulous amounts—tens of millions of dollars, in both compensatory and punitive damages. Some of these judgments have been able to withstand appeal.

But other large judgments holders—like the ones discussed above—have their judgments taken away, because the “expert” testimony upon which the judgments are based is, according to the appellate court, nothing more than junk science masquerading as the real thing.

So . . . all this can shake our faith in our system of justice for mass tort cases—for both plaintiffs and defendants. Is this the best we can do?!

Surely, there is a better way.

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