September 2019
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On September 11, 2019, a jury in the Superior Court of New Jersey, Middlesex County, reached a verdict in four cases that were consolidated for trial, in which plaintiffs claimed that they developed mesothelioma as a result of asbestos exposure from Johnson & Johnson baby powder. Defendants Johnson & Johnson and Johnson & Johnson Consumer, Inc. were hit with a total of over $37 million dollars in compensatory damages.

After a two month trial presided over by the Honorable Ana C. Viscomi, J.S.C. , closing arguments took place last week at which time Judge Viscomi struck the defendants’ closing arguments, admonishing defense counsel who suggested, among other things, that the evidence was “created” by the four plaintiffs. As to the jury awards, to each plaintiff, they were as follows.

  • Plaintiff Douglas Barden was awarded a total of $5.9 million for past and future disability, pain and suffering; his wife Roselyn Barden was awarded $1.35 million for loss of consortium damages.
  • Plaintiff David Etheridge and his wife were awarded a total of $9.45 million which included economic damages, past and future disability, pain and suffering and loss of consortium damages.
  • Plaintiff D’Angela McNeill was awarded $14.7 million for past and future disability, pain and suffering.
  • Plaintiff William Ronning was awarded $3.8 million for past and future disability, pain and suffering; his wife, Elizabeth Ronning was awarded $2.1 million in damages for past and future loss of consortium.

Notably the jury was unanimous with the exception of one juror who voted no on the questionnaire that a lack of warning/instructions was a substantial factor in causing mesothelioma; that exposure to asbestos from a defective product was the cause of the mesothelioma; and that the plaintiffs’ exposure to asbestos due to defective manufacture was a substantial factor in causing mesothelioma.

A punitive jury phase will begin shortly in this case, if the judge does not grant the defendants mistrial motion, which motion was filed on September 9, 2019, or the anticipated defense motion to set aside the verdict.

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In a decision published today, September 11, 2019, the New Jersey Supreme Court held that excerpts from settling defendants’ interrogatory answers and corporate representative deposition transcripts were admissible as statements against interest under N.J.R.E. 803(c)(25). Further, in conjunction with other evidence at trial, the statements against interest presented a "prima facie showing that the settling defendants bore some fault in this matter” and as such the trial court properly submitted to the jury the issue of allocation of fault and apportionment as to the settled defendants. (Page 6). In so ruling, the New Jersey Supreme Court reversed the Appellate Division decision in the case of Donna Rowe v. Bell & Gossett Company , (A-16-18) (081602) and reinstated the jury verdict and trial court judgment. (Pages 6, 41). In Rowe , a living mesothelioma matter, the jury awarded a total judgment of $1.5 million, allocating 20% liability to the trial defendant and the remaining 80% liability to the settled defendants.

In the September 11, 2019 decision, the New Jersey Supreme Court set forth the circumstances under which allocation of fault of a settling defendant is permitted: (i) the non-settling defendant must give plaintiff "fair and timely notice" of the intent to allocate fault of any settling defendant (Pages 26–27); (ii) the defendant seeking apportionment of fault has the burden "to "prove by a preponderance of the evidence elements of the claim against the settling defendant” (Pages 27–28); and (iii) the non-settling defendant must present to the trial court “prima facie evidence supporting any claims asserted against the settling defendant” (Page 28).

Moreover, the New Jersey Supreme Court, in Rowe , analyzed N.J.R.E. 803(c)(25) and applied it to settled defendants answers to interrogatories and deposition testimony. The Court held, (i) that “N.J.R.E. 803(c)(25) does not require a showing that the declarant is unavailable in order for that declarant’s statement against interest to be admissible”(Pages 31–32); (ii) that “whether a statement is in fact against the defendant’s interest must be determined from the circumstances of each case” (Page 32); (iii) that “the test of admissibility under N.J.R.E. 803(c)(25) is ‘whether, in the context of the whole statement, the particular remark was plausibly against the declarant’s penal interest, even though it might be neutral or even self-serving if considered alone[,]’” (Page 32); and (iv) that "in order to be admissible as a statement against interest, the statement must have been contrary to the declarant's interest at the time that it was made”(Page 33). The Court also recognized that the “prospect that the declarant may be subject to civil liability by virtue of the statement may satisfy N.J.R.E. 803(c)(25)". (Page 33). Unequivocally, the New Jersey Supreme Court held that the declarant "need not be a party to the action in which the statement is admitted." (Page 33)

Applying this analysis to the Rowe case, (Pages 33–37) the New Jersey Supreme Court then held that "all of the excerpts from the settling defendants’ answers to interrogatories and corporate representative deposition testimony at issue in this case satisfied the standard of N.J.R.E. 803(c)(25) and were admissible pursuant to that rule.” (Page 39) Despite the fact that the New Jersey Supreme Court did not reach the issue of “whether the evidence was admissible under N.J.R.E. 804(b)(1) (testimony in prior proceedings), N.J.R.E. 803(b)(1) (statements by party-opponent), or Rule 4:16-1(b)” (Page 39), the Supreme Court found that the trial court properly admitted the trial defendants proofs supportive of apportionment of fault as to the settling defendants and it was within the jury’s "province to accept or reject those proofs"; therefore the New Jersey Supreme Court affirmed the trial verdict. (Page 41)

This decision will absolutely assist trial defendants in allocation of fault amongst settled parties. In Rowe , an asbestos action, the New Jersey Supreme Court was cognizant that the interrogatory and deposition statements were against interest, addressing liability, successor liability, and warnings issues. In this context, the Supreme Court as well as the trial court was satisfied that such prior discovery of a settled defendant met the standard of N.J.R.E. 803(c)(25) for admissibility at trial.
If you would like a copy of the New Jersey court decision in Donna Rowe v. Bell & Gossett Company , (A-16-18) (081602) please do not hesitate to contact Hardin Kundla McKeon & Poletto.

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