DAVID FISHBAIN, ETC. VS. COLGATE-PALMOLIVE COMPANY (L-5633-13, MIDDLESEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1786-15T2
DAVID FISHBAIN, individually
and as executor ad prosequendum
of the ESTATE OF LINDA FISHBAIN,
Plaintiff-Appellant/
Cross-Respondent,
v.
COLGATE-PALMOLIVE COMPANY;
THE SCOTTS COMPANY, LLC;
UNION CARBIDE CORPORATION;
UNIVERSAL RAZOR INDUSTRIES,
individually and as successor-in-interest
to and d/b/a The Shulton Group and/or
Shulton, Inc.; BRENNTAG NORTH
AMERICA, as a successor-in-interest to
Mineral Pigment Solutions, Inc., as a
successor-in-interest to Whittaker, Clark
& Daniels, Inc.; BRENNTAG
SPECIALTIES, INC. f/k/a Mineral
Pigment Solutions, Inc., as a
successor-in-interest to Whittaker, Clark
& Daniels, Inc.,
Defendants,
and
SHULTON, INC., individually and as
successor to The Shulton Group and/or
Shulton, Inc.; THE PROCTOR &
GAMBLE COMPANY, as successor-
in-interest to the Shulton Group and/or
Shulton Inc.; WHITTAKER, CLARK &
DANIELS, INC.; and WYETH
HOLDINGS CORPORATION, f/k/a
American Cyanamid Company,
individually and as successor-in-
interest to The Shulton Group and/or
Shulton, Inc.,
Defendants-Respondents/
Cross-Appellants.
_________________________________
Argued October 3, 2018 – Decided August 29, 2019
Before Judges Fuentes, Vernoia and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-5633-13.
Amber R. Long argued the cause for appellant/cross-
respondent (Szaferman, Lakind, Blumstein & Blader,
PC, and Levy Konigsberg, LLP, attorneys; Robert E.
Lytle, Jeffrey P. Blumstein, and Moshe Maimon, on the
briefs).
Alan I. Dunst argued the cause for respondent/cross-
appellant Whittaker, Clark & Daniels, Inc. (Hoagland,
Longo, Moran, Dunst & Doukas, LLP, attorneys;
Richard J. Mirra, of counsel; Richard J. Mirra, Anita S.
Cohen, Aime C. Kalac, and Kathryn F. Suchman, on the
briefs).
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2
Henry L. Miller, III, argued the cause for respondents/
cross-appellants Shulton, Inc., The Proctor & Gamble
Company and Wyeth Holdings Corporation (Goldberg
Segalla LLP, and John D. Cosmich (Cosmich Simmons
& Brown, PLLC) of the Mississippi bar, admitted pro
hac vice, attorneys; Henry L. Miller, III, Anita
Hotchkiss, John D. Cosmich, and LaKeysha Greer Isaac
(Cosmich Simmons & Brown, PLLC) of the
Mississippi bar, admitted pro hac vice, on the briefs).
PER CURIAM
Plaintiff David Fishbain, individually and as executor and executor ad
prosequendum of the Estate of Linda Fishbain, appeals from a final judgment
entered following a jury verdict rendered in favor of defendants Shulton, Inc.
(Shulton), The Proctor & Gamble Company, Wyeth Holdings Corporation
(Wyeth),1 and Whittaker, Clark and Daniels, Inc. (WCD). More particularly,
plaintiff challenges an order granting defendants' motion to exclude evidence
concerning vintage samples of the products plaintiff alleges caused personal
injuries to, and the death of, Linda Fishbain, the court's allowance of alleged
hearsay testimony from a WCD representative and the court's decision
permitting defense counsel to reference and show the jury a 1986 letter from the
1
Plaintiff filed suit against Shulton individually and as successor to Shulton,
Inc., which is also variously referred to as The Shulton Group, but the record
reflects that Shulton's correct name is Shulton, Inc. Plaintiff filed suit against
The Proctor and Gamble Company and Wyeth as successors-in-interest to
Shulton, Inc.
A-1786-15T2
3
Food and Drug Administration (FDA) during opening arguments. Defendants
cross-appeal, arguing that if plaintiff's appeal is successful and the matter is
remanded for trial, there are numerous errors in the court's pretrial and trial
rulings that should be reversed. Based on our review of the record in light of
the applicable legal principles, we affirm the jury verdict and the court 's final
judgment and dismiss defendants' cross-appeals as moot.2
I.
On April 3, 2013, Linda Fishbain was diagnosed with epithelioid
malignant mesothelioma. She and her husband, plaintiff David Fishbain, 3 filed
a complaint asserting strict liability, failure to warn, product liability claims, and
a loss of consortium claim against defendants Shulton, The Proctor & Gamble
Company, WCD, Wyeth and other defendants alleging Linda Fishbain's
exposure to asbestos in various consumer talc products—to which she was
2
Shulton and WCD cross-appeal from various orders of the trial court. It is
unnecessary to address the cross-appeals because we affirm the final judgment
dismissing plaintiff's complaint.
3
We recognize Linda Fishbain was a plaintiff when the complaint was filed,
that she passed away during the trial and that David Fishbain prosecutes the
appeal on his own behalf and as executor ad prosequendum of Linda Fishbain's
estate. Our reference to David Fishbain as the singular plaintiff is for purposes
of clarity and consistency only and is not intended as any disrespect to Linda
Fishbain.
A-1786-15T2
4
exposed from 1964, when she was nine years old, through the late 1970s —
caused her to develop mesothelioma. 4 In general terms, the complaint alleged
WCD supplied asbestos-contaminated talc to Shulton, Shulton incorporated the
talc into its consumer talc products, and Linda Fishbain used and was exposed
to the asbestos-contaminated products, which caused the mesothelioma that
resulted in her death.
The Rule 104 Hearing: The Alleged Vintage Samples
Prior to trial, defendants moved to preclude plaintiff's liability expert,
Sean Fitzgerald, from testifying. Defendants challenged the scientific reliability
of the testing methodology used by Fitzgerald to arrive at his opinion that the
various Shulton talc products Linda Fishbain either used or was exposed
contained asbestos. This included the purported vintage Shulton samples, as
well as ore samples from the source mines of the talc used in Shulton's products.
Defendants also argued that even if the court determined Fitzgerald's testing
methodology was scientifically reliable, plaintiff should be barred from
introducing at trial the purported vintage samples of talc products—Cashmere
Bouquet, Desert Flower and Old Spice, which had been purchased in 2012 on
4
The complaint and first amended complaint included claims against other
defendants that are not pertinent to the disposition of this appeal.
A-1786-15T2
5
the website eBay—and Fitzgerald's testimony concerning his testing of the
samples, because they were not sufficiently authenticated under N.J.R.E. 901.
Shulton manufactured the Desert Flower and Old Spice products. 5 The
Colgate Palmolive Company (Colgate Palmolive) manufactured Cashmere
Bouquet.6 Plaintiff claimed the vintage Shulton samples, which were
purportedly produced in the 1960s and 1970s during the time Linda Fishbain
alleged she either used or was exposed to them, were properly authenticated.
Plaintiff contended that, consequently, the samples should be admitted at trial
and Fitzgerald should be permitted to testify about the results of his testing of
the products for asbestos.
Plaintiff offered Fitzgerald as an expert in geology, microscopy and
asbestos analysis. The court conducted a N.J.R.E. 104(a) hearing and issued a
detailed written statement of reasons rejecting defendants' claim that
Fitzgerald's opinions were not based on a scientific methodology of the type
reasonably relied on by experts in the fields of Fitzgerald's expertise. However,
5
The Old Spice samples consisted of Old Spice Talcum for Men and Old Spice
Traveler Set products.
6
We do not address Fitzgerald's testing of the purported samples of Cashmere
Bouquet because plaintiff settled his claims against Colgate Palmolive during
trial.
A-1786-15T2
6
pertinent to this appeal, the court barred the admission of three purported vintage
samples of Shulton products: Old Spice Talcum for Men, Old Spice Traveler Set
and Desert Flower. The court found these samples were not properly
authenticated under N.J.R.E. 901 because plaintiff failed to present competent
evidence establishing an unbroken chain of custody of the samples during the
over-forty-year period between their alleged production in the 1960s and 1970s
and their 2012 purchase on eBay.
The court explained that plaintiff attempted to authenticate the three
purported vintage samples by relying on the affidavit of Leah Kagan, an attorney
with plaintiff's counsel's law firm, who in turn relied in part on the affidavit of
Eileen Bouvier, a paralegal at Early, Lucarelli, Sweeney & Melsenkothen.
Bouvier's affidavit in part incorporated three prior affidavits she filed in another
matter. In her affidavit, Bouvier explained that she purchased the three samples
on eBay in 2012 from three different sellers in connection with another matter. 7
The court noted that Bouvier said she purchased the Old Spice Traveler
Set sample from an individual in Texas known to Bouvier only as "baylorfan82"
who provided the following information about the purported sample in an
7
The other matter was identified as Kaenzig v. Charles B. Chrystal Co., No. A-
2512-13 (App. Div. Mar. 27, 2015).
A-1786-15T2
7
electronic transmission: "The only thing that I can tell you is that I found it
when cleaning out my father's house. I think he bought it at a Globe store, which
isn't in business anymore." Kagan further attested to conducting research that
showed "Globe Discount City" was in business from 1960 through 1977 and did
not sell used products. The court noted that Kagan also asserted that a picture
of an Old Spice Traveler Set in a Shulton catalog from the period "1960s-1973"
"matches" the purported sample provided by baylorfan82.
The court also addressed the purported vintage sample of Old Spice
Talcum for Men, noting that Bouvier received an electronic transmission from
an individual, known to Bouvier only as "ladunkerly@[]," who sold the product
to her. The transmission stated: "I was helping my mom do some downsizing
and it was in my dad's linen closet. I am assuming that one of us kids gave it to
him for Christmas or Father['s] Day or something." The court further noted that
Bouvier did not provide any information concerning her purchase of the Desert
Flower sample.
The court explained that Bouvier detailed her examination of each of the
samples when she received them, indicated that each was intact and had not been
tampered with following receipt, and further described what was done with each
sample after she received them. Kagan's affidavit included as an attachment the
A-1786-15T2
8
certification of Steven Compton, PhD, a research scientist who participated in
an analysis of the samples, who stated the samples were in their original
packaging and that the Desert Flower sample was in a container with parchment
paper attached that he had to tear open to access the talcum powder. The court
noted the evidence submitted from three experts that tampering with the talcum
powder in the samples to achieve the consistent test results obtained by
Fitzgerald would be impossible.
The court reasoned that plaintiff presented only two expert witnesses at
the N.J.R.E. 104 hearing, Fitzgerald and Dr. James Weber, and that neither of
these witnesses provided competent evidence supporting the authenticity of the
samples during the over-forty-year period following Linda Fishbain's alleged
use and exposure to similar products and Bouvier's receipt of them. 8 The court
noted Weber's testimony that "he had no way of knowing" whether the product
that left the Shulton production facility over forty years earlier "was the same
product he tested" in the samples obtained by Bouvier. The court rejected
plaintiff's reliance on Kagan's and Bouvier's representations concerning the
samples because they did not "have any personal knowledge" and their
8
The court did not base its finding on the chain of custody on what occurred
following Bouvier's receipt of the samples.
A-1786-15T2
9
representations concerning the samples "merely pass[ed] along hearsay upon
hearsay." The court concluded that plaintiff failed to present sufficient evidence
of an unbroken chain of custody authenticating the samples and barred their
admission at trial and Fitzgerald's testimony concerning his testing of them.
The court also barred the evidence and testimony under N.J.R.E. 403,
finding that plaintiff offered no reliable evidence concerning the identification
of the sellers of the samples and that defendants would therefore be d eprived of
their right to cross-examine the sellers at trial. Stated differently, the prejudicial
effect of these questionable samples far outweighed their minimal probative
value. As the court explained: "At a minimum, the testimony of the respective
sellers of the [samples] would be required" at trial. Plaintiff, however, never
identified the sellers of the samples, beyond the two email addresses included in
the electronic transmissions related to the Old Spice Traveler Set and Old Spice
Talcum for Men samples, and never called the sellers as witnesses at trial .
The court entered an order barring admission of the three purported
Shulton vintage samples at trial and testimony concerning Fitzgerald's testing of
them. The matter then proceeded to trial.
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The Trial
The trial occurred over nineteen days. The evidence showed that Linda
Fishbain was born in 1955 in Somerset County, where she lived in a number of
different locations with her family until they moved to Florida in 1969. She
lived with her parents until 1980, when she married plaintiff.
While living in New Jersey, Linda Fishbain and her family visited their
relatives about twelve times per year in nearby Manville, where a manufacturing
plant owned by Johns Manville produced asbestos-containing products. Linda
Fishbain testified that three of her childhood friends died of mesothelioma, and
her mother testified that two of her close friends from the grammar school they
attended in Manville died of the disease. 9
In the different homes in which Linda Fishbain lived with her family prior
to her marriage in 1980, she shared a bathroom either with her entire family or
her siblings, a sister and two brothers. At age nine or ten, in the mid-1960s,
Linda Fishbain began using talcum powder on a daily basis following showers
or baths. She first used Cashmere Bouquet, began using Desert Flower when
she was eleven or twelve, and started using Friendship Garden between ages
9
Linda Fishbain's videotaped discovery and bene esse depositions were played
for the jury.
A-1786-15T2
11
eleven and thirteen. Her father used Old Spice talcum powder after his showers.
Her sister, Isabele D'Achille, also used talcum powder every day,
including at different times Cashmere Bouquet, Desert Flower and Friendship
Garden. Linda Fishbain said the bathroom window was usually closed when she
and her sister applied the talcum powder and that the air in the bathroom would
become very dusty. She also was present in the bathroom when her mother
applied talcum powder.
Linda Fishbain denied using Old Spice talcum powder or being present
when her father used it, but said she helped clean the family's bathrooms each
week and recalled the floors were full of talcum powder, which was difficult to
remove. She took the bath rugs outside to shake them, producing "[a] lot of
dust." She did not keep any of the talcum powder products that she had used
while in her family's homes and none were ever tested for asbestos
contamination.
Linda Fishbain told her doctors about her potential exposure to asbestos
from growing up near, and visiting her relatives by, the Manville asbestos plant,
but did not mention her exposure to talcum powder. She first learned that
cosmetic talcum powder might contain asbestos a few months prior to her
deposition.
A-1786-15T2
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Linda Fishbain was diagnosed with epithelioid malignant mesothelioma
in April 2013. She thereafter underwent various treatments including
chemotherapy, a pneumonectomy, radiation and a clinical vaccination trial for
mesothelioma, and passed away on October 5, 2015, at age sixty.
Mesothelioma is a cancer of the mesothelial cells and is known as a "signal
tumor" because of its strong association with asbestos, which is a naturally
occurring mineral. There are six asbestos minerals that fall into two groups:
chrysotile, a serpentine rock where the silicate forms into "tight little scroll[s],"
which is the most common type of asbestos used in products; and five
asbestiform varieties of amphiboles, including tremolite, anthophyllite,
actinolite, crocidolite and amosite, which crystallize into long, thin fibers.
Although amphiboles can be found adjacent to talc deposits, they are usually in
a non-asbestiform habit. Asbestos fibers are microscopic and may remain
airborne for hours or days. Inhalation of the fibers can cause mesothelioma.
Asbestos and talc can form in the same bands of rock. Talc is a sheet
silicate, which stays "platey" or flat. Cosmetic talc is ninety-five percent pure
talc with the remaining five percent consisting of associated minerals such as
chlorite, quartz, and dolomite. The types of asbestos most likely to be found in
talc are chrysotile, tremolite, and anthophyllite.
A-1786-15T2
13
WCD distributed products to various industries, including cosmetic talc
to Shulton, which manufactured Old Spice, Friendship Garden, and Desert
Flower talcum powder products. 10 William Ward, Shulton's corporate
representative, testified his review of Shulton archives revealed no reference to
WCD or its testing of talc or any certification that the talc WCD sold to Shulton
was asbestos-free. Ward explained that there were different packaging formats
for Friendship Garden and Desert Flower products sold by Shulton throughout
the 1960s and 1970s, and that they changed periodically.
The jury was shown the video recording of the deposition of Wilfred
Kaenzig and read an excerpt from his trial testimony in another case. 11 Kaenzig
began working for Shulton in August 1963. He testified that in 1966 Shulton
acquired a plant in Mays Landing, where it manufactured colognes and talcum
powder items such as Old Spice, Desert Flower, and Friendship Garden.
Kaenzig testified that during the time he worked at the Mays Landing plant,
WCD supplied ninety-nine percent of the talc used by Shulton. Kaenzig never
10
In 1971, American Cyanamid acquired Shulton, which became a subsidiary.
American Cyanamid was later sold to Wyeth, and in 1990, the Old Spice product
line was sold to The Proctor & Gamble Company.
11
Kaenzig v. Charles B. Chrystal Co., No. A-2512-13 (App. Div. Mar. 27,
2015).
A-1786-15T2
14
saw any asbestos warning labels on the bags of raw talc WCD sent to Shulton.
He did not know where WCD obtained the talc or who supplied Shulton with
raw talc before 1966.
According to Kaenzig, in the late 1970s, Shulton received complaints
about a white powder residue on some of its "pack-out items" and recalled a
light dusting of white powder throughout the plant. In the late 1970s, Shulton
moved its talc operation to Memphis, Tennessee: Kaenzig did not know the
identities of the suppliers of talc to Shulton after that time. He never saw
warnings about asbestos on Old Spice or Desert Flower products and said no
one ever warned him of the health hazards associated with talc.
Theodore Hubbard testified as WCD's corporate representative in
response to a notice in lieu of subpoena served by plaintiff and explained that
WCD sold the following grades of cosmetic talc to Shulton: 141 from a mine in
Alpine, Alabama; 2450 and 643 from the Hitchcock Mine in North Carolina;
and 1615 from a mine in Val Chisone, Italy.
Hubbard, who began working at WCD in 1978, testified the company
started testing for possible asbestos contamination in August 1971, when it
learned of the FDA's interest in the possible presence of asbestos in talc. He
explained that in an October 6, 1971 letter, the FDA stated it "generally agreed
A-1786-15T2
15
that most talcum powders of major manufacturers [we]re relatively free of
asbestos," but that it was "working on the details of a laboratory procedure for
the analysis of asbestos in talcum powders."
Hubbard said WCD initially outsourced the testing of talc to other
laboratories because it lacked the in-house capabilities, and the testing
methodology used by those laboratories in 1971 was adopted in 1976 by the
Cosmetic Toiletry and Fragrance Association (CTFA), a trade association for
companies selling cosmetics, and later recommended by the FDA.
Hubbard said WCD began its testing program for talc because WCD had
an obligation to ensure it did not supply cosmetic companies with defective
products. Hubbard reviewed the results of hundreds of X-ray diffraction tests
of WCD's talc and reported that probably four were positive for asbestos. He
testified WCD never sold contaminated talc to Shulton or any other customer
for use in cosmetic products. WCD received pre-shipment samples of cosmetic
talc, and if the tests revealed asbestos, the shipments were canceled.
Hubbard stated that after testing began in 1971, WCD never warned
Shulton about the potential danger of asbestos contamination in talc because it
never found asbestos in any product sold to Shulton. He also explained that the
FDA never required that a warning be placed on talcum powder products sold
A-1786-15T2
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to the public. He confirmed that in a 1986 letter the FDA denied a consumer's
petition for a requirement that asbestos warning labels be placed on cosmetic
talc products. He explained the letter noted the significant improvement in the
quality of cosmetic talc in the late 1970s, and that even if asbestos was present,
"the levels were so low that no health hazard existed."
Fitzgerald, who was qualified as plaintiff's expert in geology, microscopy,
and asbestos analysis, testified that from 1955 to 1980, WCD's grades of talc
141, 1615, 643 and 2450, and Shulton's Desert Flower, Friendship Garden, and
Old Spice talcum powder products were "regularly and consistently
contaminated with asbestos." In forming his opinion, Fitzgerald relied on: (1)
articles about asbestos and those grades of talc that WCD obtained from the
three mines and were used in Shulton's products; (2) historical testing of talc
from the three source mines; and (3) his own testing of raw talc ore samples.
According to Fitzgerald, the geology of the three source mines and the
historical testing confirmed asbestos contamination in the grades of talc supplied
by WCD for use in Shulton's Old Spice, Friendship Garden and Desert Flower
talcum powder products. For example, in 1972, ES Laboratories tested talc for
WCD and found chrysotile and anthophyllite. In 1973, tests performed for WCD
on talc from the source mines in Alabama, North Carolina and Italy showed
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chrysotile and tremolite. A 1977 test of grade 1615 talc from the Val Chisone
mine in Italy detected tremolite. In 1982, at WCD's request, New York
University conducted a test of grade 1615 talc from the Val Chisone mine and
found it was two percent tremolite and 0.5 percent chrysotile.
Fitzgerald said that his tests of talc grades 141 from the Alabama mine
and 1615 from the Italian mine also showed asbestos contamination. He tested
the talc using the glove box method, defined by the Environmental Protection
Agency (EPA) as a "sealed test chamber" for fiber generation and air sampling.
Fitzgerald explained that, by "simulating the product use," the aerosolization of
the raw talc confirmed the presence of asbestos inside the glove box and yielded
results that were consistent with his review of the geology and historical tests. 12
Fitzgerald confirmed the presence of asbestos using other methods such
as diffraction and testified that the results of the follow-up tests revealed the
presence of chrysotile and anthophyllite in both grades of the talc ore. He also
tested rocks he collected from the mine in North Carolina, and detected the
presence of "magnesium, silicon, calcium and iron consistent with the chemical
formula for the amphibole tremolite." He opined that one hundred percent of
12
The jury watched a video of the aerosolization of talc inside the glove box.
The record does not include the video. The video, however, is not an issue on
appeal.
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the talc from the North Carolina mine was contaminated with asbestos, even
though some tests failed to detect any contamination.
Fitzgerald conceded the FDA had approved only bulk testing of talc, and
acknowledged that the EPA criticized the indirect method of breaking apart
complex structures because it led to higher counts than the direct method.
Fitzgerald further acknowledged that other historical studies did not detect
tremolite or chrysotile in the source mines. In support of his opinions, Fitzgerald
relied on the deposition testimony of Hubbard and Kaenzig that WCD provided
Shulton with the raw talc from the three source mines for Shulton's use in its
Old Spice, Desert Flower and Friendship Garden products. He did not know
who supplied the raw talc to Shulton before 1966.
Dr. Jacqueline Moline, plaintiff's expert in occupational and
environmental medicine, and asbestos and asbestos disease, testified the
presence of asbestos in cosmetic talc has been confirmed and scientific
communities generally agree there is no safe level of exposure. She explained
that exposure to asbestos could cause mesothelioma, but recognized the vast
majority of individuals who had occupational or environmental exposure to
asbestos did not develop mesothelioma. According to Moline, a person could
develop mesothelioma after exposure to a very low dose of asbestos, although a
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longer exposure made it more likely.
Moline said Linda Fishbain breathed in asbestos fibers that escaped into
the air in the confined space of the bathrooms shared with her family members
and that asbestos fibers also could have gotten into the ducts and other parts of
the house, causing continuous exposure. She noted that vacuuming or sweeping
asbestos-covered floors could make the problem worse by bringing the asbestos
back into the air. Moline did not know whether Linda Fishbain was significantly
exposed to asbestos growing up near the Manville plant, explaining she had no
idea about wind patterns or actual exposure. She also testified that asbestos
could linger in the air for hours, "if not days," and that the typical latency period
from exposure to development of the disease was "30, 40, 50" years. In Moline's
opinion, Linda Fishbain's use of and exposure to Shulton's and WCD's talc
products were substantial factors in causing her mesothelioma.
Moline had no personal knowledge that the Shulton products actually
contained asbestos or whether WCD supplied Shulton with asbestos-
contaminated talc. Based on the information provided to her, she assumed WCD
supplied the talc to Shulton for its talcum powder products and that "the talcum
powder products that [Linda Fishbain] was exposed to contained asbestos." She
conceded that if either of those assumptions was incorrect, her conclusion that
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Shulton and WCD caused the mesothelioma was invalid. When Moline prepared
her expert report, she also offered the opinion that Linda Fishbain's exposure to
Scotts' lawn care products and Colgate-Palmolive's Cashmere Bouquet talcum
powder were substantial contributing factors causing her mesothelioma.
Mark Taragin, M.D., an internist with a master's degree in public health,
testified as defendants' expert in the fields of epidemiology and the assessment
of diseases from exposure to asbestos. He reviewed medical records,
depositions and expert reports and concluded Linda Fishbain's use of cosmetic
talcum powder was not a substantial contributing factor in causing her
mesothelioma.
Taragin said there was no scientific literature or epidemiological study
suggesting the use of or exposure to cosmetic talcum products caused
mesothelioma, or studies indicating that miners and millers of cosmetic talc had
an increased risk of developing the disease. Taragin viewed the lack of such
studies as "critical information" because "the highest exposure is going to be
people mining the substance." He referred to the 1986 FDA letter regarding the
agency's views that: (1) "[t]he risk from a worse case estimate of exposure to
asbestos from cosmetic talc will be less than the risk from environmental
background levels of exposure to asbestos (non-occupational exposure over a
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21
lifetime)"; and (2) no health hazard existed even when asbestos was present
because the levels of asbestos were so low.
Taragin said thirty to fifty percent of women in the 1960s and 1970s used
cosmetic talc and that, given that rate of use, he "wouldn't be at all surprised to
find that a woman with mesothelioma or any cancer is going to have a frequent
use of cosmetic talc because that's what was common." In Taragin's opinion,
"[Linda] Fishbain's [fourteen] years in the vicinity of Johns Manville was a
substantial contributing factor towards her mesothelioma." He also considered
it significant that Linda Fishbain and her family visited an uncle who lived in
Manville, noting that approximately twelve visits a year over fourteen years
meant she spent the equivalent of four months in Manville.
Taragin explained that the documentation in Linda Fishbain's medical
records "jive[d] with the literature as to why she would have mesothelioma." He
referred to a 1997 article by Michael Berry of the Department of Health stating
that women who lived in Somerset County, excluding Manville and Johns
Manville employees, were at twice the risk of the comparison group of
developing mesothelioma. Another study by the State of New Jersey identified
cancer clusters from 1979 through 2001 and found that women who lived in the
vicinity of Manville had a "15 fold" increase in their risk of developing
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22
mesothelioma. Excluding people who lived in Manville and worked at the plant,
Taragin determined that women who lived in the same areas as Linda Fishbain
had an increased "12 fold risk." He said there was no known safe level of
exposure to asbestos, but that some literature suggested exposure at an early age
placed people more at risk for developing mesothelioma.
Taragin acknowledged on cross-examination that the FDA also
recognized in its 1986 letter that asbestos inhalation over extended periods was
hazardous to humans, that the agency was aware that "some cosmetic talc
produced in the 1960's and 1970's did contain asbestiform minerals," and that
the agency found significant improvement in the quality of cosmetic talc in the
latter part of the 1970s. He acknowledged that he could not say with medical
certainty that Linda Fishbain's fourteen years in the vicinity of the Johns
Manville plant were a substantial contributing factor in causing her
mesothelioma, but only a possibility.
Alan Segrave testified as defendants' expert in geology, mineralogy and
microscopy "with an emphasis on the testing of asbestos-containing materials
and talc, and the methodology associated with it." He managed the asbestos
laboratory for Bureau Veritas North America, "the world leader in testing,
inspection and certification in many different industries," and had thirty years
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23
of experience in testing materials for asbestos.
Segrave opined that the test data from 1971 through 1994 and the results
of Fitzgerald's testing of the talc ore samples did not support the conclusion that
Linda Fishbain was exposed to asbestos-contaminated talc. Segrave believed
the scientific literature was consistent with his opinion that the three mines that
supplied talc to Shulton were not regularly and consistently contaminated with
asbestos. He relied on published literature by geologists who had studied the
deposits in those mines and on epidemiological studies on miners of talc who
did not develop any increased incidence of disease. He also relied on 309 x-ray
diffraction charts from WCD's testing of talc samples between 1971 and 1990,
which included four reports of tremolite or anthophyllite, and the follow-up tests
at his laboratory that found only one sample of grade 2450 from North Carolina
was positive for tremolite and the other three samples were inconclusive.
Instead, he mostly found the "accessory minerals" often associated with good
quality talc such as chlorite, quartz, and dolomite.
Segrave tested one of the rocks collected by Fitzgerald at the North
Carolina mine and determined it contained hornblende, a non-asbestiform
amphibole mineral that contained aluminum. Segrave believed Fitzgerald 's
failure to detect aluminum led him to misidentify the mineral as tremolite and
A-1786-15T2
24
noted that most amphiboles found were non-asbestiform and that it was very
rare to find asbestiform amphiboles.
Segrave believed Fitzgerald's testing of the raw talc samples was flawed
because a glove box was "not a recognized space to conduct a test for
releasability." He also observed that Fitzgerald tested raw talc, not end products,
explaining that end products such as talcum powder contained additives that
could inhibit the release of asbestos. Even accepting Fitzgerald's methodology,
Segrave said the results of the glove box testing fell below the Asbestos Hazard
Emergency Response Act (AHERA), 15 U.S.C. §§ 2641 to 2656, clearance
criteria and, in his opinion, Fitzgerald's glove box study was not "representative
of a real world exposure or release of asbestos." Segrave concluded that
Fitzgerald did not follow an acceptable protocol for a release study, that he used
a hybrid of methods, that his results could not be reproduced, and that his testing
failed to prove Linda Fishbain had been exposed to asbestos-contaminated talc.
The jury returned a verdict in defendants' favor finding plaintiff failed to
prove: (1) either Shulton or WCD manufactured, sold or distributed a talc
product that was not reasonably fit, suitable and safe for its intended and
foreseeable use because it lacked a warning or because it was defectively
designed; (2) Linda Fishbain used or was exposed to a talc product
A-1786-15T2
25
manufactured, sold or distributed by either defendant that was not reasonably
fit, suitable and safe for its intended and foreseeable use because it lacked a
warning; and (3) Linda Fishbain's use of or exposure to a talc product
manufactured, sold or distributed by either defendant that was not reasonably
fit, suitable and safe for its intended and foreseeable use because of a lack of
warning or a defective design was a substantial factor in causing her
mesothelioma. The jury also determined defendants proved that at the time the
talc products left their control, the danger that they could cause an asbestos-
related disease was not known or knowable and that no practical and technically
feasible alternative design existed that would have prevented Linda Fishbain's
injuries without substantially impairing the reasonably anticipated or intended
essential functions of the talc products. Plaintiff appealed and, as noted,
defendants cross-appealed.
II.
Plaintiff first argues the court erred by barring admission of the three
putative vintage Shulton samples and Fitzgerald's testimony concerning his
testing of the samples. 13 We are not persuaded.
13
The court also barred Fitzgerald from testifying concerning his testing of
"vintage Colgate Palmolive samples" consisting of three containers of various
A-1786-15T2
26
"[A] trial court's evidentiary rulings are entitled to deference absent a
showing of an abuse of discretion, i.e., there has been a clear error of judgment."
State v. Nantambu, 221 N.J. 390, 402 (2015) (alteration in original) (quoting
State v. Harris, 209 N.J. 431, 439 (2012)). Under this standard, the trial court's
decision to allow evidence should not be overturned "unless it can be shown that
the trial court palpably abused its discretion, that is, that its finding was so wide
[of] the mark that a manifest denial of justice resulted." State v. Lykes, 192 N.J.
519, 534 (2007) (alteration in original) (quoting Verdicchio v. Ricca, 179 N.J.
1, 34 (2004)). If the trial court does not determine the admissibility of evidence
under the correct legal standard, however, its decision is not afforded any
deference and we review the issue de novo. State v. Reddish, 181 N.J. 553, 609
(2004).
Here, plaintiff challenges the court's determination barring admission of
the three purported vintage Shulton samples and Fitzgerald's testimony about
them because plaintiff failed to authenticate the samples. See N.J.R.E. 901.
"The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the
sizes of purported "Colgate Cashmere Bouquet brand talcum powder," and two
other talcum powder samples, Talc Ore Grade 1615 and Talc Ore Grade 141.
Plaintiff does not challenge the court's order barring that testimony on appeal.
A-1786-15T2
27
matter is what its proponent claims." Ibid. This rule of evidence "does not
require absolute certainty or conclusive proof." State v. Mays, 321 N.J. Super.
619, 628 (App. Div. 1999). "The proponent of the evidence is only required to
make a prima facie showing of authenticity." Ibid. After such a showing is
made, the evidence is admissible and the jury decides the ultimate question of
authenticity. Ibid.
"A party introducing tangible evidence has the burden of laying a proper
foundation for its admission." State v. Brunson, 132 N.J. 377, 393 (1993).
Generally, that "foundation should include a showing of an uninterrupted chain
of custody." State v. Mosner, 407 N.J. Super. 40, 62 (App. Div. 2009). Evidence
will usually be admitted "if the court finds 'in reasonable probability that the
evidence has not been changed in important respects or is in substantially the
same condition as when'" the relevant event occurred. Ibid. (citations omitted).
However, the "determination of whether the [proponent] sufficiently established
the chain of custody is within the discretion of the trial court," ibid., and that
"determination will not be overturned in the absence of a clearly mistaken
exercise thereof," State v. Brown, 99 N.J. Super. 22, 27 (App. Div. 1968).
We discern no abuse of discretion in the court's decision barring admission
of the three putative Shulton samples and Fitzgerald's testimony about them. An
A-1786-15T2
28
abuse of discretion occurs "when a decision is 'made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis.'" US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467-68
(2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
The court's determination plaintiff failed to demonstrate an uninterrupted
chain of custody of the samples is supported by the lack of any compe tent
evidence establishing an uninterrupted chain of custody during the
approximately forty-year period that elapsed from the samples' alleged
production and distribution in the 1960s or 1970s until they were purchased by
Bouvier in 2012. Plaintiff relies on email transmissions from two individuals
describing assumptions and speculation concerning their respective families'
possessions of the two Old Spice samples, but the individuals are unknown, their
representations are not certified and cannot be verified, and defendants had no
ability to challenge the representations. Moreover, even if the statements
contained in the emails are true, they do not establish an uninterrupted chain of
custody from the date of production of the samples until their delivery to
Bouvier. Indeed, the emails contain only assumptions concerning the manner in
which the samples were obtained and do not include any information or
competent evidence concerning the condition of the samples when they came
A-1786-15T2
29
into each family's possession, the length of the custody of each sample or the
circumstances surrounding possession of the samples. In addition, other than
Bouvier's statement that she purchased the Desert Flower sample on eBay,
plaintiff's proffer concerning that sample is untethered to any evidence
establishing its chain of custody prior to Bouvier's purchase.
The court did not abuse its discretion by barring admission of the samples
and Fitzgerald's testimony. Plaintiff simply, but undeniably, failed to present
any competent evidence establishing the uninterrupted chain of custody of the
samples necessary to authenticate the samples under Rule 901 for the
approximately forty-year period prior to Bouvier's purchases. See Brunson, 132
N.J. at 393; Brown, 99 N.J. Super. at 27.
We are also unpersuaded by plaintiff's claim the court abused its
discretion by finding the samples were not properly authenticated because there
was circumstantial evidence establishing authentication. Plaintiff argues the
circumstances include Bouvier's observations of the condition of the packaging
of the samples when she received them, a defense expert's testimony he had
never seen evidence removed and replaced from a sample prior to testing,
Fitzgerald and Weber's testimony at the N.J.R.E. 104 hearing that it would be
difficult to replace the original talcum powder in the samples with powder
A-1786-15T2
30
containing the concentrations of asbestos Fitzgerald reported finding, and
Bouvier and Compton's representations that the Desert Flower sample included
parchment paper that had to be torn to obtain access to the talcum powder.
In the first instance, one of the circumstances ignored by plaintiff, but
properly recognized by the court, is the lack of any evidence concerning the
chain of custody of the samples prior to Bouvier's purchase of them. In other
words, in its assessment of whether plaintiff established a reasonable probability
that the samples had not been changed in important respects or were in
substantially the same condition as when they were first produced forty years
earlier, see Mosner, 407 N.J. Super. at 62, the court properly recognized and
relied on an important circumstance plaintiff ignores—the absence of any
evidence showing the custody and condition of the samples during that forty-
year period.
Moreover, the record lacks any evidence concerning Bouvier's or
Compton's knowledge of the samples, including the Desert Flower sample, when
they were first produced and, thus, their observation of parchment paper
covering the powder did not establish the condition of the sample forty years
earlier or at any time other than when it was in their possession, and could not
establish whether the condition of the sample was the same or had changed over
A-1786-15T2
31
that period. None of plaintiff's witnesses certified the talcum powder contained
in the samples was the same talcum powder that was included forty years earlier
when the sample containers were produced, and plaintiff's witness, Weber,
testified "he had no way of knowing" whether the product that left the Shulton
production facility over forty years earlier "was the same product" in the samples
obtained by Bouvier that he examined. Fitzgerald similarly testified he did not
know when the samples were produced, the names of the original purchasers,
how many people had used the samples and where they had been stored before
Bouvier purchased them on eBay.
Based on that record, we discern no abuse of discretion in the court 's
finding that plaintiff failed to sustain his burden under Rule 901 to demonstrate
a reasonable probability that the samples were in the same condition as they
were when they left Shulton's production facility forty years earlier. See
Brunson, 132 N.J. at 393 (finding the party offering evidence has the burden to
establish authentication under N.J.R.E. 901). The court's determination was
amply supported by a record devoid of competent evidence demonstrating any
of the circumstances surrounding the possession of the putative samples during
the four decades prior to Bouvier's receipt of the samples from the anonymous
A-1786-15T2
32
sellers. We therefore affirm the court's order barring admission of the samples
and Fitzgerald's testimony about them at trial.
III.
Plaintiff also challenges the admission of portions of Hubbard's testimony
that he provided in his capacity as WCD's corporate representative. Plaintiff
claims Hubbard impermissibly offered testimony concerning information that
predated the commencement of his employment with WCD in 1978, and that the
testimony constituted inadmissible hearsay because it could only have been
based on what he was told by others.
WCD, joined by Shulton, argues the challenged testimony was properly
admitted because Hubbard was designated as WCD's corporate representative
and produced in response to a notice in lieu of subpoena plaintiff issued pursuant
to Rule 1:9-1. WCD argues that because Rule 1:9-1 allows the subpoena of a
corporate representative that is "deposable on its behalf, under [Rule] 4:14-2,"
the designated representative "is not limited to that witness's own personal
knowledge" and therefore Hubbard could properly testify based on what he
learned from others in the corporation.
Defendants' briefs are bereft of any citation to legal authority supporting
the notion that the trial testimony of a corporate designee subpoenaed under
A-1786-15T2
33
Rule 1:9-1 is exempt from the Rules of Evidence and the fundamental
requirement that a witness testify solely to matters within his or her personal
knowledge. N.J.R.E. 602. Rule 1:9-1's reference to Rule 4:14-2 does not expand
the scope of a witness's permissible testimony at trial or create an exception to
Rule 602's prohibition against testimony concerning "a matter unless evidence
is introduced sufficient to support a finding that the witness has personal
knowledge of the matter." N.J.R.E. 602. Rule 1:9-1 defines only the means for
securing the presence at trial of a corporate designee deposable under Rule 4:14-
2—by subpoena or a notice in lieu thereof. Rule 1:9-1 does not define the
permissible scope of the designee's testimony once he or she takes the witness
stand at trial.
Hubbard's testimony is also not otherwise exempt from the Rules of
Evidence simply because he necessarily had to obtain information from others
to testify as WCD's corporate representative. "A person who has no knowledge
of a fact except what another has told him [or her]" may not testify as to the fact
because of a lack of the personal knowledge required under Rule 602. Neno v.
Clinton, 167 N.J. 573, 585 (2001) (alteration in original) (quoting McCormick
on Evidence § 10 (5th ed. 1999)). That is because a statement founded on
A-1786-15T2
34
hearsay lacks "'personal knowledge' of the substance of the statement, but only
knowledge of the fact that the statement was made." Id. at 585-86.
Rule 4:14-2 allows a corporate representative to testify at a deposition "as
to matters known or reasonably available to the organization," even if those
matters are outside of the witness's personal knowledge. R. 4:14-2(c). But our
Rules of Evidence permit the admission of hearsay testimony at trial only under
limited circumstances, N.J.R.E. 801 to 808, and otherwise make no provision
for the admission at trial of hearsay from a witness designated as a deposable
corporate representative pursuant to Rule 4:14-2, other than, for example, by
allowing admission of the hearsay testimony under exceptions to the hearsay
rule, such as a statement by a party-opponent, N.J.R.E. 803(b), a statement
against the corporation's interest, N.J.R.E. 803(c)(25), 14 or by a representative
discussing admissible business records, N.J.S.A. 803(c)(6). 15 Indeed, Hubbard
14
Under N.J.R.E. 803(b) and 803(c)(25), plaintiff may have been entitled to
present testimony from Hubbard that would otherwise constitute hearsay, but
WCD was not. See, e.g., Spencer v. Bristol-Myers Squibb Co., 156 N.J. 455,
460-64 (1998) (affirming the trial court's admission of statements of a corporate
representative as statements of a party-opponent under Rule 803(b)).
15
Rule 4:16-1(c) provides that any party may utilize the deposition testimony
of a witness, "whether or not a party," against any other party that was present
or represented at the taking of the deposition "if the court finds that the
appearance of the witness cannot be obtained," but does not authorize the
A-1786-15T2
35
testified throughout his direct examination by plaintiff's counsel, and during
cross-examination by the various defense counsel, about the contents of what
appear to be business records, many of which were created prior to the
commencement of his employment. Plaintiff does not challenge the admission
of that testimony on appeal.
Plaintiff challenges portions of Hubbard's testimony during WCD's
counsel's cross-examination. We first consider whether the court erred by
admitting the challenged testimony, and then determine whether the court 's
alleged errors were clearly capable of producing an unjust result. R. 2:10-2.
Although we accord deference to the court's evidentiary rulings absent an
abuse of discretion, Nantambu, 221 N.J. at 402, we review a trial court's rulings
de novo where the court does not determine the admissibility of evidence under
the correct legal standard, Reddish, 181 N.J. at 609. We apply those standards
here.
Plaintiff first asserts the court erred by allowing Hubbard to respond to a
question about why WCD entered into a talc testing program in 1971. Hubbard
admission of hearsay testimony included in a deposition to which a proper
objection is made. In any event, defendants did not seek admission of Hubbard's
deposition testimony, plaintiff challenges only the admission of Hubbard's trial
testimony, and Rule 4:16-1(c) is inapplicable here because Hubbard testified at
trial.
A-1786-15T2
36
began his response by stating that it was his understanding that the director of
WCD's laboratory at the time "had seen an article." Plaintiff's counsel objected,
and WCD's counsel, in obvious recognition of the hearsay nature of Hubbard's
response, said he was not interested in what the WCD laboratory director had
said, but instead wanted Hubbard to testify as to "what [he knew] as" WCD's
corporate representative. Plaintiff's counsel again objected on hearsay grounds
and, following a sidebar discussion, the court sustained the objection and said,
"Let's develop the background."
In response to WCD's counsel's questions, Hubbard explained that he
obtained his knowledge of the reasons WCD began testing talc for asbestos in
1971 by reviewing various corporate records, and he "also spoke[] to other
individuals who worked at" WCD. Hubbard was then asked if he "obtained an
understanding as to why" WCD began testing talc for asbestos in 1971.
Plaintiff's counsel objected based on hearsay, and the court overruled the
objection. Hubbard then indicated that he obtained his understanding based on
his review of certain records and his "personal knowledge from the people who
work[ed] there at the time." Plaintiff's counsel again objected, but the court
overruled the objection. Ultimately, the court permitted Hubbard to testify that
WCD instituted a testing program for asbestos in talc in 1971 in response to "the
A-1786-15T2
37
interest of the FDA," which was detailed in newspaper articles that were in
WCD's "clipping file."
We agree with plaintiff that the court erred in permitting Hubbard's
testimony explaining his understanding as to why WCD entered into a talc
testing program in 1971. His response was clearly not based on his personal
knowledge—he was not employed by WCD in 1971 when the testing began—
was founded on what others told him, and does not fall within any exceptions to
the hearsay rule. Defendants' assertion the testimony was admissible based on
Hubbard's status as the corporate representative finds no support in our Rules of
Evidence.
Plaintiff also objected to Hubbard's testimony that it was "always [his]
understanding" that WCD first learned of the potential risk of asbestos
contamination of talc when the "articles appeared in the newspaper . . . and the
FDA took an interest." The court overruled the objection, supporting its
determination by stating "It's cross." We again agree the court erred. Based on
the context of the questioning, Hubbard's testimony constituted inadmissible
hearsay because he was not employed by WCD in 1971, his "understanding"
was therefore necessarily based on what he learned from others, and WCD fails
to demonstrate the testimony is otherwise admissible under any exception to the
A-1786-15T2
38
hearsay rule. See Neno, 167 N.J. at 584-85 (explaining that a witness cannot
indirectly incorporate hearsay into a statement of opinion or understanding).
The court similarly erred by permitting Hubbard to testify, over plaintiff's
objection, that WCD never made a decision about the methods used by their
outside labs to test talc based on cost, and that WCD sent letters to certain of its
talc suppliers in 1972 concerning the results of talc testing. In both instances,
Hubbard testified solely about events occurring prior to his employment based
on what he learned from others, and none of the testimony falls within an
exception to the hearsay rule.
We also consider whether the admission of those portions of Hubbard's
testimony to which plaintiff objected constitutes harmless error—that is, was it
clearly capable of producing an unjust result. R. 2:10-2; see Toto v. Ensuar, 196
N.J. 134, 144 (2008). We conclude it was not. Hubbard's extensive admissible
testimony, supported by numerous WCD records that were admitted in evidence,
otherwise showed no record of WCD testing for asbestos prior to 1971, the FDA
expressed concern about the presence of asbestos in 1971 and became actively
involved in developing a protocol for the reliable testing for asbestos at that time
and during the following years, and WCD began at least some testing of its talc
as early as 1971 and thereafter continued testing some of its talc and participated
A-1786-15T2
39
in CTFA's efforts to coordinate with the FDA to develop an acceptable testing
protocol. Thus, in our view, there was ample evidence, independent of
Hubbard's inadmissible hearsay testimony, establishing WCD's talc testing
history, its alleged knowledge of the possibility that its talc might contain
asbestos, and its use and consideration of various testing methods. As a result,
we are unable to conclude that Hubbard's hearsay testimony to which plaintiff
objected, that related to WCD's lack of testing prior to 1971 and the reasons
WCD began its testing in the early 1970s, was clearly capable of producing an
unjust result. R. 2:10-2; see, e.g., Rice v. Miller, 455 N.J. Super. 90, 107-08
(App. Div. 2018).
We also consider plaintiff's challenge to the admission of portions of
Hubbard's testimony to which no objection was made at trial. We generally do
not consider issues raised for the first time on appeal, see Zaman v. Felton, 219
N.J. 199, 226-27 (2014), and for that reason alone reject plaintiff's challenge to
the portions of Hubbard's testimony to which plaintiff chose not to object at trial.
Plaintiff's decision not to object deprived the trial court of an opportunity to
address the objection and prevented defendants from further developing the
record supporting admission of the testimony and from presenting other
evidence in place of the testimony plaintiff now contends was inadmissible. See
A-1786-15T2
40
State v. Witt, 223 N.J. 409, 419 (2015). Moreover, the record shows plaintiff
ably and consistently objected to other portions of Hubbard's testimony based
on hearsay grounds, and plaintiff's failure to do so with regard to the portions of
Hubbard's testimony about which he now complains bespeaks a conscious trial
strategy.
In any event, we consider whether the portions of Hubbard's testimony to
which plaintiff did not object constituted inadmissible hearsay and, if so,
whether its admission constituted plain error. R. 2:10-2. Plaintiff asserts
Hubbard provided inadmissible hearsay testimony concerning the reasons WCD
"start[ed] to test talc for the presence of asbestos in 1971, seven years before
Hubbard began his employment with the company." Hubbard testified that
WCD began testing because it wanted to determine "if there's a possibility" of
"a problem with the product," it had an obligation to make sure the product was
not "defective," and it did not want to sell a product that would "ruin [WCD's]
reputation." Plaintiff also claims Hubbard improperly offered hearsay testimony
that prior to Hubbard's employment with WCD, it would not have sold talc that
tested positive for asbestos, it would have destroyed any talc that tested positive
for asbestos and that it never sold Shulton any talc that tested positive for
asbestos.
A-1786-15T2
41
Based on our review of the record, Hubbard's testimony about the reasons
WCD began testing for asbestos and as to what WCD did or would have done
with talc that contained asbestos appears to constitute inadmissible hearsay
because it is untethered to Hubbard's personal knowledge. Again, Hubbard did
not become employed at WCD until 1978, and his knowledge concerning what
occurred before his employment necessarily was derived from others. We note
that plaintiff's failure to object deprived defendants of an opportunity to
establish that Hubbard's testimony was either based on admissible business
records or otherwise admissible under the exceptions to the hearsay rule. In any
event, even accepting Hubbard's testimony as inadmissible hearsay, which we
conclude it was based on the record, we are not convinced its admission was
clearly capable of producing an unjust result. R. 2:10-2.
Hubbard provided lengthy and detailed admissible testimony, to which no
objection was made at trial and no challenge is made on appeal, concerning
WCD's testing of talc for asbestos in the years prior to his employment. That
testimony consisted of his detailing of WCD records, which were admitted in
evidence, that he reviewed in his capacity as WCD's corporate representative.
In general terms, the records showed, and Hubbard explained, WCD's
interactions with the FDA during the 1970s; WCD's interactions with various
A-1786-15T2
42
testing laboratories that it used to test its talc during the 1970s; various tests of
WDC talc during the 1970s, including one in 1972 showing the presence of
tremolite and chrysotile; WCD's participation in CTFA meetings during the
1970s dedicated to addressing the testing of talc for asbestos; and the back-and-
forth between CTFA and the FDA in 1973 and thereafter concerning the
development of a reliable test for the presence of asbestos in talc.
That testimony, as well as the testimony of the other witnesses, including
plaintiff's experts, about similar subjects throughout the long trial provides the
context in which we determine that Hubbard's hearsay testimony was not clearly
capable of producing an unjust result. Indeed, we can properly infer from
plaintiff's failure to object "that in the context of the trial" the errors about which
he now complains were "actually of no moment." State v. Macon, 57 N.J. 325,
333 (1971). Moreover, the reasons Hubbard provided for WCD's decision to
test for asbestos and his testimony that WCD would have destroyed any cosmetic
talc in which it found asbestos was not clearly capable of producing an unjust
result because plaintiff's claim was founded, at least in part, on Linda Fishbain's
exposure to asbestos-contaminated talc in Shulton's products on a daily basis
beginning in 1965, six or seven years prior to any testing of the talc for asbestos.
Thus, Hubbard's testimony about the reasons testing commenced and that WCD
A-1786-15T2
43
would have destroyed talc that tested positive for asbestos is irrelevant to that
portion of plaintiff's claim founded on what occurred from 1965 through WCD's
testing in 1971.
Hubbard's testimony about the reasons the testing began was not capable
of producing an unjust result because there is otherwise evidence, in the form of
WCD records, that the testing commenced in 1971, after the FDA expressed
concern about the presence of asbestos in talc and the appropriate testing
methodology. Last, Hubbard's testimony about what WCD would have done if
a test showed asbestos in its talc was not clearly capable of producing an unjust
result because there was no evidence WCD actually tested all of the talc it sold
to Shulton after 1971, Hubbard never identified any cosmetic talc that WCD
actually destroyed in response to a test showing the presence of asbestos, and
Fitzgerald presented detailed testimony explaining that the source mines for
WCD talc, as well as Shulton products that Linda Fishbain allegedly used and
was exposed, were "regularly and consistently contaminated with asbestos" from
1955 to 1980.
We are also not convinced that the cumulative effect of Hubbard's hearsay
testimony, including that to which plaintiff did and did not object, was clearly
capable of producing an unjust result. For the reasons noted, plaintiff makes no
A-1786-15T2
44
showing that any of the testimony, when considered in the totality of the
evidence presented at trial, was clearly capable of producing an unjust result
here. The parties presented substantial evidence, including comprehensive and
detailed expert testimony, supporting their respective positions and addressing
the allegation that Linda Fishbain's mesothelioma was caused by her exposure
to asbestos in the allegedly contaminated Shulton products that she used and to
which she was exposed. In our view, Hubbard's challenged testimony added
little, if anything, of import that might have affected the jury's determination of
the complex issues presented. We reject plaintiff's conclusory contentions to
the contrary.
IV.
Plaintiff next argues the court erred by ruling during a pretrial proceeding
that counsel for Colgate Palmolive could show the jury a slide of a redacted
version of the 1986 letter from the FDA that was written in response to a citizen's
petition requesting asbestos warnings on talc products. Plaintiff also claims the
court erred in its jury instructions on the proper consideration of the letter.
Plaintiff claims the letter "created the misleading impression that the [FDA] had
approved the absence of warnings about the dangers of asbestos on Shulton
products during the period of Linda Fishbain's exposure."
A-1786-15T2
45
Prior to trial, plaintiff objected to counsel for Colgate Palmolive's plan to
show a portion of the letter to the jury during opening statements. Plaintiff
argued that "[p]utting aside the hearsay problems with" the letter, it
"postdate[d]" the period during which Linda Fishbain allegedly was exposed to
asbestos-contaminated talc. The court did not make any legal conclusions
supporting its decision on the objection but implicitly overruled it, stating only
that counsel "could argue to the jury" and that if defendants "don't meet the
proofs then [plaintiff] can argue that to the jury."
At trial, none of the various defendants moved the letter into evidence.
Instead, plaintiff's counsel first mentioned the letter to the jury during his
opening statement, questioned a series of his witnesses about it and later moved
the letter into evidence over the objections of the various defendants. Plaintiff
now claims it was error for the court to admit the letter.
"[T]rial errors that 'were induced, encouraged or acquiesced in or
consented to by . . . counsel ordinarily are not a basis for reversal on appeal.'"
State v. Munafo, 222 N.J. 480, 487 (2015) (quoting State v. A.R., 213 N.J. 542,
561 (2013)). As our Supreme Court has explained, the invited error doctrine
"gives voice to 'the common-sense notion that a "disappointed litigant" cannot
argue on appeal that a prior ruling was erroneous "when that party urged the
A-1786-15T2
46
lower court to adopt the proposition now alleged to be error."'" Ibid. (quoting
A.R., 213 N.J. at 561). Here, we consider whether plaintiff's claim the court
erred by admitting the letter must be rejected under the invited error doctrine
because plaintiff moved for admission of the letter over the objections of the
various defendants at trial.
Plaintiff argues he did not waive his right to challenge the admission of
the letter because his counsel was compelled to mention the letter during
opening statements and move for its admission because the court ruled Colgate
Palmolive's counsel could show a portion of the letter to the jury during
openings. Plaintiff relies on Saldana v. Michael Weinig, Inc., where the trial
court denied the plaintiff's application to crop a photograph of the machine that
caused the plaintiff's injuries, and the plaintiff later moved for admission of the
uncropped photograph into evidence. 337 N.J. Super. 35, 44-46 (App. Div.
2001). We rejected the defendant's claim that the plaintiff's request to admit the
photograph at trial constituted a waiver of the plaintiff's right to challenge the
court's rejection of the plaintiff's motion to crop the photograph. Id. at 47-48.
We held that because "[a] party who objects to the admission of evidence is
bound by an adverse ruling for the remainder of the trial . . . [he or she] is entitled
to minimize the effect of the ruling by taking a contrary position without
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waiving, for the purposes of appeal, the prejudicial effect of the introduction of
the entire subject matter over which the initial objection was made." Id. at 47.
We concluded that the "admission of the uncropped photograph, based upon the
adverse ruling of the trial judge, did not represent a waiver of [the plaintiff 's]
initial objection" to the uncropped photograph's admission into evidence. Id. at
47-48 (emphasis added).
Whether the holding in Saldana should bar plaintiff from challenging the
admission of the 1986 letter is not easily resolved here because the court 's lack
of legal findings renders unclear whether its determination that counsel for
Colgate Palmolive could show a portion of the letter to the jury during opening
statements constituted a determination the letter was admissible as evidence at
trial. If the court's decision constituted a finding the letter was admissible as
evidence, plaintiff's strategy of addressing the letter his opening statement and
moving for admission of the letter into evidence did not result in a waiver of his
right to argue on appeal the court erred by admitting the letter in the first
instance. Id. at 47-48.
Based on our review of the record, we are convinced the court's decision
to allow Colgate Palmolive's counsel to show a portion of the letter to the jury
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during opening statements effectively constituted a decision to admit the letter 16
into evidence at trial. Plaintiff's objection to Colgate Palmolive's counsel's plan
to show the jury a portion of the letter was based on evidence principles and not
those pertaining to the proper scope of opening statements. See Morales-
Hurtado v. Reinoso, 457 N.J. Super. 170, 191 (App. Div. 2018) (explaining that
the "narrow purpose and scope" of an opening statement is to explain "what
evidence will be presented, to make it easier for the jurors to understand what is
to follow, and to relate parts of the evidence and testimony to the whole"
(citation omitted)). In plaintiff's objections to Colgate Palmolive's planned use
of the letter during opening statements, his counsel expressly referenced hearsay
problems and issues of relevancy, N.J.R.E. 403, claiming the letter detailed FDA
actions occurring after Linda Fishbain's exposure to talc.
In addition, we can reasonably conclude that, presented with plaintiff's
express objections, the court would not have allowed counsel to show the jury a
document during opening statements unless the court had decided the letter was
admissible in evidence. That does not mean the court's determination was
16
None of the parties argue that because Colgate Palmolive requested
permission only to show the jury a portion of the letter that admission of the
letter, if appropriate, should have been limited only to that portion. The parties
do not dispute that proper admission of the portion of the letter permitted
admission of the balance of the letter.
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correct; it means only that the record supports a conclusion that the court 's
decision constituted a determination the letter was admissible. Plaintiff's
counsel certainly understood that to be the case; he supported his request for
admission of the letter by arguing that Colgate Palmolive had been permitted to
"open" on the letter over plaintiff's objection. In other words, plaintiff argued
that the letter was admissible because the court had already determined that it
could be shown to the jury. Neither WCD nor Shulton refuted that contention. 17
In sum, a fair reading of the record shows the court's determination that
Colgate Palmolive's counsel could show a portion of the letter to the jury during
opening statements constituted an implicit rejection of plaintiff's objection to
the admission of the letter and a determination the letter was admissible as
evidence. As a result, we are not persuaded that plaintiff's counsel's decision to
refer to the letter in his opening statement and later move it into evidence
resulted in a waiver of plaintiff's right to claim admission of the letter was in
error. Saldana, 337 N.J. Super. at 47-48. We therefore address plaintiff's claim
17
We acknowledge that due to apparent difficulties in the transcription of the
trial record, it is not clear which counsel spoke during the colloquy over the
objection to plaintiff's request to admit the letter in evidence and that much of
the substantive exchange is identified only as "indiscernible." We glean as much
as we can from the sparse record.
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the court erred by determining the letter was admissible in the first instance and
whether its admission was clearly capable of producing an unjust result.
Because of the manner in which the letter was first addressed by the court
and later admitted into evidence based on plaintiff's request, determination of
the admissibility of the letter rests on an almost non-existent record. The court
did not conduct a Rule 104 hearing on its admission and thus the record related
to its admission is limited to what appears to be the letter's contents and the
parties' apparent acceptance of its authenticity. The letter is dated July 11, 1986,
and bears the purported signature of the then "Acting Associate Commissioner
for Regulatory Affairs" of what the parties apparently concede is the FDA. The
letter is not typed on FDA letterhead and bears no seal or certification as to its
origin or authenticity.
Shulton and WCD relied on the letter to establish the truth of its contents.
They relied on the letter's statements that the FDA had never required a warning
on talc products, the FDA questioned the reliability of analytical methods for
testing talc for the presence of asbestos during the early 1970s, and "the quality
of cosmetic talc significantly improved, and that even when asbestos was
present, the levels were so low that no health hazard existed." Because the letter
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was relied on by Shulton and WCD, at least in part, to establish the truth of its
contents, it constituted hearsay. See N.J.R.E. 801.
Neither WCD nor Shulton cite to any exception to the hearsay rule
permitting the proper admission of the letter. The record does not permit a
determination whether admission of the letter properly falls within any
exception to the hearsay rule. Although authentication of the letter might have
been accomplished through appropriate testimony, see State v. Moore, 158 N.J.
Super. 68, 83 (App. Div. 1978), or otherwise by self-authentication, see N.J.R.E.
902(b) and (d), the parties' apparent concession it was authentic does not render
it admissible. Rather, because defendants relied on the letter for the truth of its
contents, it was not admissible unless it was both authentic, N.J.R.E. 901, and
there was a showing that the letter satisfied the requirements of Rule 803(c)(8)
as a public record, report or finding. N.J.R.E. 803(c)(8). The record, however,
is bereft of any evidence satisfying the Rule's requirements: there is no evidence
the statements in the letter are "within the scope of the [author's] duty either to
perform the act reported or to observe the act, condition, or event reported and
to make the written statement." Ibid. We therefore conclude, based on the
record, the letter constituted inadmissible hearsay.
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Nevertheless, we are not persuaded admission of the letter was clearly
capable of producing an unjust result. R. 2:10-2. The letter's statement
indicating the FDA had never required warnings for talc products pertains to a
fact that is otherwise undisputed, and plaintiff did not present any evidence
showing the FDA required a warning on talc products during Linda Fishbain's
alleged period of exposure to Shulton's products. Similarly, the letter's
statements concerning the unreliability of the testing methodologies used during
the 1970s and the FDA's efforts to develop a reliable methodology was also the
subject of extensive other testimony and evidence.
The letter's reference to the improved quality of talc during the "latter
portion of the 1970s" and the FDA's apparent finding that the levels of asbestos
in talc found during that period did not create a health hazard relates to only a
small portion of Linda Fishbain's alleged period of exposure to contaminated
talc. Moreover, that statement is undermined by the numerous other statements
in the letter that supported plaintiff's position at trial and upon which plaintiff
relied at trial. For example, the letter states that: "asbestos inhalation over
extended periods is hazardous to humans"; the FDA is "aware that some
cosmetic talc produced in the 1960s and early 1970s did contain asbestiform
minerals;" "[d]uring the early 1970s, [the] FDA became concerned about the
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possibility that cosmetic talc did contain significant amounts of" asbestiform
materials and, during that time, "the analytical procedures for determining
asbestos in talc were not fully developed"; and "[b]ecause of the questionable
nature of the analytical results, the [FDA] was not able to assess reliably the
levels of asbestiform minerals in cosmetic talc then in the marketplace." In other
words, the letter confirmed many of plaintiff's most important factual claims:
asbestos is hazardous to humans and during Linda Fishbain's daily exposure to
the talc from the mid-1960s until the late 1970s, the FDA, cosmetic talc industry
and defendants had no reliable methodology to determine the level of asbestos
contained in cosmetic talc products. We therefore do not find that admission of
the letter was clearly capable of producing an unjust result. R. 2:10-2.
We also reject plaintiff's claim the court erred in its instruction to the jury
concerning its consideration of the letter. Plaintiff contends the court erred by
instructing the jury that it could consider the FDA's failure to require asbestos
warnings when deciding whether Shulton's products were unsafe.
The court charged the jury as follows:
Defendants have offered evidence that the [FDA]
considered whether to require warnings on cosmetic
talc products for asbestos-related dangers and
determined that no warning was necessary. There is no
dispute that there was no regulatory requirement that
any of the defendants include a warning with its
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products.
Plaintiffs dispute the basis of the FDA's decision and
contend that regardless of the FDA's decision a warning
was still required. The absence of an FDA requirement
that a warning be given, however, does not mean
necessarily that the product needed no warning. It is,
however, something you may take into consideration.
Clear and correct jury charges are necessary for a fair trial and a court's
failure to provide them may constitute plain error. Das v. Thani, 171 N.J. 518,
527 (2002); Wade v. Kessler Inst., 172 N.J. 327, 341 (2002). Jury charges
outline the jury's function, set forth the issues, state the applicable law, and spell
out how the jury should apply the legal principles to the facts. Wade, 172 N.J.
at 341. An appellate court will not disturb a jury's verdict based on an
instructional error, "where the charge, considered as a whole, adequately
conveys the law and is unlikely to confuse or mislead the jury, even though part
of the charge, standing alone, might be incorrect." Ibid. (quoting Fischer v.
Canario, 143 N.J. 235, 254 (1996)).
Plaintiff argues that the instruction was misleading "because it implied the
FDA had approved Shulton's decision to omit any warnings about the dangers
of asbestos in its products during the period those products were used by Linda
Fishbain and other members of her family." The claim lacks merit because the
instruction does not suggest or imply that the FDA approved the omission of
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warnings on Shulton's products during the time of Linda Fishbain's exposure to
the allegedly asbestos-contaminated talc. Indeed, plaintiff's counsel repeatedly
questioned witnesses about the FDA's statement that some cosmetic talc in the
1960s and 1970s contained asbestiform minerals and argued during summation
that the FDA never said cosmetic talc was always free from asbestos
contamination. Plaintiff's counsel reminded the jurors that the FDA letter said
only "the talc in 1986 is clean." The court's instruction therefore could not have
misled or confused the jury. Ibid.
In addition, the court tailored the instruction to provide a fair description
of the position of all parties and allow the jury to consider the evidence,
including the FDA letter. It is presumed that the jury followed the court 's
instructions. State v. Loftin, 146 N.J. 295, 390 (1996); Belmont Condo. Ass'n,
Inc. v. Geibel, 432 N.J. Super. 52, 97 (App. Div. 2013). There is nothing in the
record to suggest the jury failed to do so. And, in our view, the instruction
accurately described the parties' respective positions.
Any other arguments made on plaintiff's behalf that we have not expressly
addressed are without sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
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