Plaintiff, Angelina Landrigan, sued defendants Owens-Corning Fiberglass
Corporation and Owens Illinois, Inc. for the personal injuries and death
of her husband, Thomas Landrigan, claiming that exposure to defendants'
asbestos had caused his death from colon cancer. She also sued The Celotex
Corporation, against which all actions are stayed because it is in bankruptcy.
Reference in this opinion to "defendants" is to Owens-Corning
Fiberglass Corporation and Owens Illinois, Inc. To prove causation, plaintiff
relied on the testimony of two witnesses, a medical doctor and an epidemiologist.
The trial court rejected both experts' conclusions. It rejected the medical
doctor's conclusion as a "net opinion," unsubstantiated by
facts or reasons. The court ruled that the epidemiologist, not being
a physician, was unqualified to render an opinion that asbestos exposure
caused cancer in a specific individual. The Appellate Division affirmed. 243
N.J.Super. 449, 579 A.2d 1268 (1990). We granted certification, 127
N.J. 324, 604 A.2d 599 (1990), and now reverse and remand to the
Decedent worked as a maintenance man and pipe insulator at the Bayonne
Terminal Warehouse from 1956 until December 1981, when he was diagnosed
as suffering from colon cancer. From 1956 until 1972, he allegedly
worked with insulation containing asbestos supplied by defendants.
In January 1982, he underwent surgery but the cancer spread, and he
died in December 1982. The cause of his death was adenocarcinoma, "a
malignant adenoma arising from a glandular organ," Taber's Cyclopedic
Medical Dictionary 36 (15th ed. 1985), the most common type of colon
cancer. Generally speaking, colorectal cancer is the second most common
cancer in the United States , striking 140,000 persons and causing
60,000 deaths annually. Colonoscopy Recommended, Am. Med. News, Sept.
16, 1991, at 39. In 1984, plaintiff filed this survivorship and wrongful
death action, asserting that exposure to asbestos had caused decedent's
On defendants' motions, the trial court directed plaintiff to elect to
try her claims under a strict liability theory predicated on defendants'
failure to warn, in which defendants would be barred from proving that
they had neither known nor could have known that asbestos was dangerous
(the state-of-the-art defense), see Beshada
v. Johns-Manville Prods. Corp., 90 N.J. 191, 447 A.2d 539 (1982)), or
under a combined strict liability and negligence theory. The court ruled
that if plaintiff proceeded under the combined theory, it would not charge
that knowledge of the dangers of asbestos was imputed to defendant. Plaintiff
elected to proceed solely under the strict liability theory, thereby
barring defendants' state-of-the-art defense.
At the trial in 1989, plaintiff relied on two experts, Dr. Joseph Sokolowski,
Jr., a physician who is board certified in both internal medicine and
pulmonary medicine, and Dr. Joseph K. Wagoner, an epidemiologist and
biostatistician but not a physician. Dr. Sokolowski never treated or
examined decedent. He based his conclusions on a review of decedent's
history of [*411] exposure to asbestos, the absence of other risk factors
in decedent's history, and on various epidemiological, animal, and in
vitro studies. Stating that physicians regularly rely on epidemiological
studies, Dr. Sokolowski testified that asbestos can cause colon cancer
in humans. He also described the path asbestos fibers take from inhalation
to the gastrointestinal tract.
Dr. Sokolowski testified that exposure to asbestos was the cause of decedent's
colon cancer. He relied on the ability of asbestos to cause colon cancer
in humans, decedent's exposure to asbestos, and the absence of other
risk factors, such as a high-fat diet, excessive alcohol consumption,
a family history of colon cancer, and prior bowel disease. Dr. Sokolowski
testified further that decedent would not have contracted colon cancer
if he had not been exposed to asbestos.
Plaintiff also offered Dr. Wagoner to testify that asbestos exposure
had caused decedent's colon cancer. After conducting a hearing pursuant
to Evidence Rule 8, the trial court ruled that as an epidemiologist and
not a physician, Dr. Wagoner was not qualified to testify that asbestos
had caused decedent's cancer. The court, however, permitted the witness
to testify about epidemiological methods and studies linking colon cancer
to asbestos exposure. It also allowed Dr. Wagoner to state his opinion
that asbestos causes colon cancer in humans. Finally, Dr. Wagoner testified
that a low-fiber diet is associated with an increased risk of colon cancer,
and that smoking, hemorrhoids, arthritis, and moderate alcohol consumption
are not so associated.
At the close of plaintiff's case, the trial court granted defendants'
motions for a directed verdict. See Rule
4:40-1 . The court ruled that Dr. Sokolowski's testimony was a net
opinion because it was supported only by epidemiological studies and
the exclusion of other risk factors, explaining:
Epidemiological evidence can only be used to show that a defendant's
conduct increased a plaintiff's risk of injury to some measurable extent
but it cannot be used to answer the critical question did the asbestos
cause Mr. Landrigan's [*412] colon cancer. Judge Deighan so stated in
the case of [ Thompson
v. Merrell Dow Pharmaceuticals, 229 N.J.Super. 230 [551 A.2d 177] (App.Div.1988)].
The court also rejected plaintiff's proffer concerning Dr. Wagoner's
Dr. Wagoner is not a medical doctor. He never prescribed a course of
treatment for cancer patients. He conducted no human research. Dr.
Wagoner teaches that if you can't find the cause of a disease by medical
observation and you can find no other cause for it, you then go to
these studies that have been conducted and pick a cause from a known
risk or an increased risk factor.
Again, I repeat that epidemiology cannot be used to predict an occurrence
of health related events for a given specific individual. Therefore,
it is this Court's decision that the colon cancer claim of Mr. Landrigan
and Mrs. Landrigan is dismissed as to all defendants.
Concerning Dr. Wagoner, the Appellate Division apparently relied on the
fact that he had used only epidemiological methods:
Dr. Wagoner's qualifications as an epidemiologist and biostatistician
did not endow his opinion as to proximate cause with the expertise
necessary to "assist the trier of fact to understand the
evidence or determine [the] fact in issue" [quoting Evid.R.
56(2)]. As we noted earlier, epidemiology deals with the movement
of different diseases within human populations. It does not address
questions of specific causation in the individual case. While
epidemiological information, taken together with other medical
facts, may be useful to a physician in forming a particular diagnosis
or in determining the etiology of an illness, court determinations
as to such matters cannot be based on an expert opinion which
rests on the application of statistical skills and studies alone. [243
N.J.Super. at 462, 579 A.2d 1268.]
Epidemiology, then, relates to two aspects of plaintiff's proof. For
the physician, Dr. Sokolowski, epidemiological studies provided some
of the facts on which he relied to conclude that asbestos exposure had
caused decedent's colon cancer. Concerning Dr. Wagoner, the epidemiologist,
the main issue was whether he was qualified as a non-physician to render
an opinion that the exposure had been the cause of decedent's cancer.
In recent years, we have sought to accommodate the requirements for the
admission of expert testimony with the need for [*413] that testimony.
v. Witco Chem. Corp., 125 N.J. 421, 593 A.2d 733 (1991); Ryan
v. KDI Sylvan Pools, Inc., 121 N.J. 276, 579 A.2d 1241 (1990). Nowhere
is that accommodation more compelling than on the issue of causation
in toxic-tort litigation concerning diseases of indeterminate origin.
Many such injuries remain latent for years, are associated with diverse
risk factors, and occur without any apparent cause. Steve Gold, Note,
Causation in Toxic Torts: Burdens of Proof, Standards of Persuasion,
and Statistical Evidence, 96
Yale L.J. 376, 376 (1986) (hereinafter Gold). In that context, proof
that a defendant's conduct caused decedent's injuries is more subtle
and sophisticated than proof in cases concerned with more traditional
Evidence Rule 56(2), which governs the admission of opinion testimony,
states in relevant part:
A witness qualified pursuant to Rule 19 as an expert by knowledge, skill,
experience, training or education may testify in the form of opinion
or otherwise as to matters requiring scientific, technical or other specialized
knowledge if such testimony will assist the trier of fact to understand
the evidence or determine a fact in issue.
The Rule imposes three basic requirements: (1) the intended
testimony must concern a subject matter that is beyond the ken
of the average juror; (2) the field testified to must be at a
state of the art such that an expert's testimony could be sufficiently
reliable; and (3) the witness must have sufficient expertise
to offer the intended testimony. State
v. Kelly, 97 N.J. 178, 208, 478 A.2d 364 (1984).
Our focus is on the last two requirements, that the testimony is reliable
and that the witness is qualified to offer the intended testimony. In
Rubanick, which we decided after the Appellate Division had rendered
its opinion in this case, we modified the standard for the admission
of expert testimony, holding that
in toxic-tort litigation, 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. The evidence of
such scientific knowledge must be proffered by an expert who
is [*414] sufficiently qualified by education, knowledge, training,
and experience in the specific field of science. The expert must
possess a demonstrated professional capability to assess the
scientific significance of the underlying data and information,
to apply the scientific methodology, and to explain the bases
for the opinion reached. [125
N.J. at 449, 593 A.2d 733.]
Rubanick changed the emphasis for the admission of expert testimony from
general acceptance in the scientific community to the methodology and
reasoning supporting the testimony. Although we acknowledged the controversy
surrounding that change, we determined that "there are sound reasons
for adopting a broadened standard for determining the reliability and
admissibility of scientific theories of causation in toxic-tort litigation." Id.
at 454, 593 A.2d 733.
The trial court in Rubanick had ruled inadmissible the testimony of a
biochemist who had testified that polychlorinated biphenyls (PCBs) could
cause colon cancer. We directed the court to reconsider that testimony
under the previously-quoted standard.
The admissibility of such testimony depends on the expert's ability to
explain pertinent scientific principles and to apply those principles
to the formulation of his or her opinion. Thus, the key to admission
of the opinion is the validity of the expert's reasoning and methodology. Id.
at 449, 593 A.2d 733; see Bert Black, A Unified Theory of Scientific
Fordham L. Review 595, 604 (1988) (hereinafter Black) ("when
expert witnesses are forced to make their reasoning explicit, courts
can evaluate it against accepted scientific practice"). In resolving
these issues, the trial court should not substitute its judgment for
that of the relevant scientific community. The court's function is to
distinguish scientifically sound reasoning from that of the self-validating
expert, who uses scientific terminology to present unsubstantiated personal
beliefs. See State
v. Zola, 112 N.J. 384, 447, 548 A.2d 1022 (1988) (Handler, J., dissenting); Kelly,
supra, 97 N.J. at 209, 478 A.2d 364; Buckelew
v. Grossbard, 87 N.J. 512, 525, 435 A.2d 1150 (1981); cf. Black,
supra, 56 Fordham L. Review at 633 ("an uncritical [*415] approach
to acceptance allows a group that advocates a technique or method to
self-validate it simply by declaring acceptance").
Traditionally, plaintiffs have established a connection between tortious
conduct and personal injuries through the testimony of medical experts
who testify that the defendant's specific conduct was the cause of the
plaintiff's injuries. Toxic torts, however, do not readily lend themselves
to proof that is so particularized. Developments in the Law -- Toxic
Waste Litigation, 99
Harv.L.Rev. 1458, 1620 (1986). Plaintiffs in such cases may be compelled
to resort to more general evidence, such as that provided by epidemiological
studies. A basic understanding of some fundamentals of epidemiology is
essential for an assessment of the admissibility of such evidence.
Simply defined, epidemiology is "the study of disease occurrence
in human populations." Gary D. Friedman, Primer of Epidemiology
1 (3d ed. 1987) (hereinafter Friedman). Epidemiology studies the relationship
between a disease and a factor suspected of causing the disease, using
statistical methods to determine the likelihood of causation. Bert Black & David
E. Lilienfeld, Epidemiologic Proof in Toxic Tort Litigation, 52
Fordham L. Review 732, 750 (1984) (hereinafter Black & Lilienfeld).
By comparison to the clinical health sciences, which are directly concerned
with diseases in particular patients, epidemiology is concerned with
the statistical analysis of disease in groups of patients. The statistical
associations may become so compelling, as they did in establishing the
correlation between asbestos exposure and mesothelioma, that they raise
a legitimate implication of causation. See id.
at 758. "[S]tatistical associations," however, "do
not necessarily imply causation. * * * It is important, therefore, to
have some basis for deciding whether a statistical association derived
from an observational study represents a cause-and-effect relationship." Friedman,
supra, at 182-83. See Austin B. Hill, The Environment and Disease: Association
or Causation?, 58 Proc. Royal Soc. Med. 295 (1965) (criteria to assess
likelihood of causal relationship [*416] from statistical associations).
At oral argument, defendants, for example, stressed two criteria, among
others, that are crucial in determining whether a statistical association
will give rise to an inference that a particular substance causes a certain
disease in people who are exposed to it. The two criteria are the strength
of the association and the consistency of any such association with other
knowledge. The argument is sound. As Professor Friedman explains:
In general, the stronger the association, the more likely it represents
a cause-and-effect relationship. Weak associations often turn out to
be spurious and explainable by some known, or as yet unknown, confounding
variable. In order for an association to be spurious, the underlying
factor that explains it must have a stronger relationship to the disease
than the suspected causal factor. When the causal factor under consideration
is strongly related to the disease, it is likely, although not certain,
that the underlying variable with the necessarily even stronger relationship
to the disease would be recognizable.
Strength of an association is usually measured by the relative risk or
the ratio of the disease rate in those with the factor to the rate in
those without. The relative risk of lung cancer in cigarette smokers
as compared to nonsmokers is on the order of 10:1, whereas the relative
risk of pancreatic cancer is about 2:1. The difference suggests that
cigarette smoking is more likely to be a causal factor for lung cancer
than for pancreatic cancer.
* * *
If the association makes sense in terms of known biological mechanisms
or other epidemiologic knowledge, it becomes more plausible as a cause-and-effect
relationship. Part of the attractiveness of the hypothesis that a high-saturated
fat, high-cholesterol diet predisposes to atherosclerosis is the fact
that a biologic mechanism can be invoked. Such a diet increases blood
lipids, which may in turn be deposited in arterial walls. A correlation
between the number of telephone poles in a country and its coronary heart
disease mortality rate lacks plausibility as a cause-and-effect relationship
partly because it is difficult to imagine a biologic mechanism whereby
telephone poles result in atherosclerosis. [ Id. at 183-84 (citation
The "attributable risk," by comparison, is the proportion of
the disease that is statistically attributable to the factor. Black & Lilienfeld,
supra, 52 Fordham L. Review at 761. It "is a composite measure that
takes into account both the relative risk of disease if exposed and the
proportion of the population so exposed." Ibid.[*417]
For our purposes, we need not describe in detail how to structure an
epidemiological study, analyze the data, draw conclusions about the study
population, and, if possible, extrapolate from statistical results inferences
about specific individual subjects. It suffices to state that at a Rule
8 hearing epidemiologists, like experts generally, must be able to identify
the factual bases for their conclusions, explain their methodology, and
demonstrate that both the factual bases and the methodology are scientifically
reliable. That explanation will enable the trial court to determine whether
the expert's opinion "will assist the trier of fact to understand
the evidence or determine a fact in issue," Evid. R. 56(2), or whether
the opinion is, in current parlance, "junk science."
Making these determinations often "will be complicated and the ultimate
decision difficult." Rubanick,
supra, 125 N.J. at 449, 593 A.2d 733. We agree with defendants that
when an expert relies on such data as epidemiological studies, the trial
court should review the studies, as well as other information proffered
by the parties, to determine if they are of a kind on which such experts
ordinarily rely. The court should then determine whether the expert's
opinion is derived from a sound and well-founded methodology that is
supported by some expert consensus in the appropriate field. Id.
at 449-50, 593 A.2d 733.
Defined landmarks guide a trial court in making this determination. Support
may be demonstrated by reference to professional journals, texts, conferences,
symposia, or judicial opinions accepting the methodology. See Kelly,
supra, 97 N.J. at 210-11, 478 A.2d 364. Additionally, recognized
professional societies may have positions that help determine the soundness
of the witness's approach. Finally, the witness's qualifications may
be relevant in assessing the soundness of his or her methodology. Rubanick,
supra, 125 N.J. at 452, 593 A.2d 733. On meeting these requirements,
a witness with appropriate expertise in epidemiology may rely on a combination
of epidemiological studies and particularized proof about an individual
to [*418] testify that exposure to a toxic substance has caused the person's
disease. See Grassis
v. Johns-Manville Corp., 248 N.J.Super. 446, 454, 591 A.2d 671 (App.Div.1991).
Turning to the experts in this case, plaintiff's medical expert was Dr.
Sokolowski. Initially, he explained that he had examined certain literature
on colon cancer, including the landmark study by Dr. Irving Selikoff.
See Irving Selikoff et al., Mortality Experience of Insulation Workers
in the United States and Canada, 330 Annals N.Y. Acad. Sci. 91 (1979).
The study indicated a relative risk of colon cancer from the exposure
to asbestos of 1.55. The attributable risk, which would vary according
to the extent and intensity of the exposure, was approximately thirty-five
percent. Thus, assuming a causal relationship, the Selikoff study indicates
that thirty-five percent of the cases of colon cancer in the population
exposed to asbestos can be attributed to that exposure.
Dr. Sokolowski had never treated or examined decedent, but he had reviewed
decedent's medical records and plaintiff's answers to interrogatories.
Those materials indicated that decedent had been exposed to asbestos
in his work. They also indicated the absence of other risk factors such
as a family history of colon cancer, a high-fat diet, and the undue consumption
of alcohol. Dr. Sokolowski acknowledged that "many studies * * *
show no statistically significant increase in colon cancer in workers
exposed to asbestos." Finally, he relied on the results of animal
and in vitro studies.
The trial court rejected Dr. Sokolowski's testimony as a "net opinion" unsupported
by any facts. Specifically, the court stated that "[e]pidemiological
evidence can only be used to show that a defendant's conduct increased
a plaintiff's risk of injury to some measurable extent but it cannot
be used to answer the critical question did the asbestos cause Mr. Landrigan's
The Appellate Division agreed with that assessment, explaining that Dr.
Sokolowski had failed to account for other factors [*419] that may have
caused decedent's cancer. Although it accepted the validity of the Selikoff
study, the court stated that the 1.55 relative risk was insufficient
to support Dr. Sokolowski's opinion that decedent's exposure had caused
the cancer. Without expressly adopting a specific standard, the court
cited with approval several cases that adopted a requirement that an
epidemiological study show a relative risk in excess of 2.0 to prove
that causation in a specific individual was more probable than not. The
significance of a relative risk greater than 2.0 representing a true
causal relationship is that the ratio evidences an attributable risk
of more than fifty percent, which means that more than half of the cases
of the studied disease in a comparable population exposed to the substance
are attributable to that exposure. This finding could support an inference
that the exposure was the probable cause of the disease in a specific
member of the exposed population.
Defense counsel urges that the Appellate Division opinion may be read
as requiring that an expert may not rely on an epidemiological study
to support a finding of individual causation unless the relative risk
is greater than 2.0. See 243
N.J.Super. at 457-59, 579 A.2d 1268. At oral argument before us,
they agreed that such a requirement may be unnecessary. Counsel acknowledged
that under certain circumstances a study with a relative risk of less
than 2.0 could support a finding of specific causation. Those circumstances
would include, for example, individual clinical data, such as asbestos
in or near the tumor or a documented history of extensive asbestos exposure.
So viewed, a relative risk of 2.0 is not so much a password to a finding
of causation as one piece of evidence, among others, for the court to
consider in determining whether the expert has employed a sound methodology
in reaching his or her conclusion.
If epidemiological studies are to provide the basis for an expert's opinion,
they must have been "soundly and reliably generated" and be "of
a type reasonably relied on by comparable [*420] experts in the particular
supra, 125 N.J. at 447, 593 A.2d 733; see also Kelly,
supra, 97 N.J. at 209-11, 478 A.2d 364 (general discussion of means
to demonstrate acceptability of scientific evidence); Michael Dore, A
Commentary on the Use of Epidemiological Evidence in Demonstrating Cause-in-Fact,
7 Harv.Envtl.L.Rev. 429, 432 (1983) ("The usefulness of an epidemiological
study depends on the quality of the underlying data, the reliability
of the methodology, and the validity of the interpretations.").
A finding that experts in the field rely on certain data raises a presumption
that such reliance is reasonable. Ryan,
supra, 121 N.J. at 289, 579 A.2d 1241.
The court must also examine the manner in which experts reason from the
studies and other information to a conclusion. As previously indicated,
that conclusion must derive from a sound methodology that is supported
by some consensus of experts in the field. Rubanick,
supra, 125 N.J. at 449-50, 593 A.2d 733.
In the present case, Dr. Sokolowski began by reviewing the scientific
literature to establish both the ability of asbestos to cause colon cancer
and the magnitude of the risk that it would cause that result. Next,
he assumed that decedent was exposed to asbestos and that his exposure,
in both intensity and duration, was comparable to that of the study populations
described in the literature. He then assumed that other known risk factors
for colon cancer did not apply to decedent. After considering decedent's
exposure and the absence of those factors, Dr. Sokolowski concluded that
decedent's exposure more likely than not had been the cause of his colon
Without limiting the trial court on remand, its assessment of Dr. Sokolowski's
testimony should include an evaluation of the validity both of the studies
on which he relied and of his assumption that the decedent's asbestos
exposure was like that of the members of the study populations. The court
should also verify Dr. Sokolowski's assumption concerning the absence
[*421] of other risk factors. Finally, the court should ascertain if
the relevant scientific community accepts the process by which Dr. Sokolowski
reasoned to the conclusion that the decedent's asbestos exposure had
caused his cancer. Thus, to determine the admissibility of the witness's
opinion, the court, without substituting its judgment for that of the
expert, should examine each step in Dr. Sokolowski's reasoning.
The trial court also rejected the testimony of plaintiff's second witness
on causation, Dr. Wagoner, an epidemiologist. The court permitted Dr.
Wagoner to testify generally that asbestos can cause colon cancer, but
precluded him from testifying specifically that exposure to defendants'
asbestos had caused decedent's cancer. In barring the witness from so
testifying, the court stated that Dr. Wagoner
cannot give an opinion as to causation, based upon the reasoning
that has been argued here that the doctor is not a medical doctor.
He has never treated patients. * * * He will be permitted to
testify as an epidemiologist and not give any opinion as to whether
or not this man's colon cancer was caused by his exposure to
The Appellate Division agreed. 243
N.J.Super. at 462, 579 A.2d 1268.
In the interim, we decided Rubanick, in which we affirmed an Appellate
Division ruling that a witness who was a biochemist, but not a physician,
could testify that exposure to PCBs had caused colon cancer in the individual
plaintiffs. Defendants' brief in the instant case, written before our
opinion in Rubanick, acknowledges that the Rubanick ruling in the Appellate
Division conflicts with their contention that persons other than licensed
physicians, such as epidemiologists, are unqualified to offer a medical
opinion about the cause of colon cancer in a specific individual. Defendants
acknowledge that Rubanick permits an otherwise qualified witness who
is not a physician to testify that a toxic substance caused colon cancer
in a specific plaintiff. In light of our intervening decision in Rubanick,
we [*422] are obliged to reverse the judgment of the Appellate Division
and remand the matter to the trial court for retrial.
Our decision does not necessarily mean that on remand the trial court
must reach a different result. Although the diagnosis of decedent's disease
and the cause of his death are not in dispute, the parties vigorously
contest the probability that decedent's colon cancer was caused by asbestos
exposure. The issue posed to both Dr. Wagoner and Dr. Sokolowski was
the likelihood that decedent's colon cancer was caused by asbestos exposure.
Dr. Wagoner did not rely exclusively on epidemiological studies in addressing
that issue. In addition to relying on such studies, he, like Dr. Sokolowski,
reviewed specific evidence about decedent's medical and occupational
histories. Both witnesses also excluded certain known risk factors for
colon cancer, such as excessive alcohol consumption, a high-fat diet,
and a positive family history. From statistical population studies to
the conclusion of causation in an individual, however, is a broad leap,
particularly for a witness whose training, unlike that of a physician,
is oriented toward the study of groups and not of individuals. Nonetheless,
proof of causation in toxic-tort cases depends largely on inferences
derived from statistics about groups. Gold, supra, 96 Yale L.J. at 401.
The ultimate decision whether Dr. Wagoner is qualified to render an opinion
on the issue of specific causation must depend on the trial court's assessment
of both his qualifications and his methodology.
Our resolution of the issue concerning the admissibility of the testimony
of plaintiff's experts is consistent with Rubanick
v. Witco Chem. Corp., supra, 125 N.J. 421, 593 A.2d 733, Hake
v. Township of Manchester, 98 N.J. 302, 486 A.2d 836 (1985), and
with opinions from other jurisdictions. In Hake, the plaintiffs offered
the testimony of a trained first-aider to establish the lifesaving potential
of cardiopulmonary resuscitation (CPR). We noted that "[w]hile the
subject is ultimately medical in nature, all aspects of the subject are
not within the exclusive knowledge of licensed practitioners," 98
N.J. at 314, 486 A.2d [*423] 836, and held that the plaintiffs should
have been given the opportunity to demonstrate that their witness had "the
minimal technical training and knowledge" required for him to express
a reliable opinion, id.
at 316, 486 A.2d 836. See also State
v. Frost, 242 N.J.Super. 601, 616, 577 A.2d 1282 (App.Div.1990) (non-psychologist
clinical director of women's resource center "eminently well qualified" to
testify on battered-woman syndrome).
Courts of other jurisdictions also permit non-physician scientists to
testify on matters of individual causation when their training and experience
indicate sufficient expertise to support a reliable opinion. See, e.g., In
re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 855-56 (3d Cir.1990) (toxicologist,
microbiologist, and physicist, each with clinical or research experience),
cert. denied, U.S. ,
111 S.Ct. 1584, 113 L.Ed.2d 649 (1991); Loudermill
v. Dow Chem. Co., 863 F.2d 566, 570 (8th Cir.1988) (toxicologist
with clinical experience); Roberts
v. United States, 316 F.2d 489, 492-93 (3d Cir.1963) (industrial
hygienist/toxicologist with practical experience); Valiulis
v. Scheffels, 191 Ill.App.3d 775, 138 Ill.Dec. 668, 547 N.E.2d 1289,
1296-97 (1989) (clinical psychologist/neuropsychologist regularly
consulted by physicians); Nicholas
v. City of Alton, 107 Ill.App.3d 404, 63 Ill.Dec. 108, 437 N.E.2d 757,
760 (1982) (toxicologist/pharmacologist with practical experience); Karasik
v. Bird, 98 A.D.2d 359, 470 N.Y.S.2d 605, 608 (1984) (pharmacologist);
see also Black, supra, 56 Fordham L. Review at 661 ("Causation involves
fundamentally scientific questions. As one writer puts it, 'the patient
seeks relief, the physician tries to provide it, and the scientist seeks
understanding' [quoting Lester S. King, Medical Thinking 131 (1982)].").
Before the Appellate Division, plaintiff challenged the trial court's
direction to proceed on strict liability only, in which event it would
instruct the jury that defendants were deemed to [*424] know of the
danger of asbestos, or to proceed on both her strict liability and
negligence claims, in which event defendants could attempt to prove
the state-of-the-art defense to both claims.
Unfortunately, the parties failed to arrange for the entry of an order
based on the trial court's ruling. Ordinarily, this failure would be
fatal to an appeal. See Credit
Bureau Collection Agency v. Lind, 71 N.J.Super. 326, 328-29, 177 A.2d
36 (App.Div.1961); Homeowner's
Taxpayers Ass'n v. South Plainfield Sewerage Auth., 60 N.J.Super. 321,
323, 158 A.2d 847 (App.Div.1960). Here, however, the parties are
in apparent agreement on the trial court's ruling, and the matter is
of importance to both plaintiffs and defendants in the trial of asbestos
cases. Hence, we review the decision of the trial court as if an order
had been entered. See R.
1:1-2 ; Bitting
v. Willett, 47 N.J. 6, 9, 218 A.2d 859 (1966).
The Appellate Division laconically disapproved of the trial court's ruling,
Although we agree that the trial court erred in severing plaintiff's
strict liability and negligence claims for trial, our disposition of
this appeal would not be altered by the two claims having been tried
together. The evidence of proximate cause would have been the same. [243
N.J.Super. at 462, 579 A.2d 1268.]
We granted defendants' cross-petitions seeking a determination
whether the Appellate Division erred in its disapproval of the
trial court's ruling.
Although the parties refer to the trial court's ruling as one for severance,
the effect of the ruling was to compel plaintiff to elect between proceeding
on a theory of strict liability that would not be subject to the state-of-the-art
defense or on theories of both strict liability and negligence that would
be subject to that defense. The court did not permit plaintiff to proceed
first on strict liability and failing that, on negligence. Nor did it
provide that if the two claims were severed for trial, the state-of-the-art
defense would not apply to the strict liability claim. [*425]
The essence of plaintiff's strict liability claim is that defendants
failed to provide adequate warnings of the dangerous propensities of
asbestos during the period of decedent's exposure. Defendant Owens-Corning
Fiberglass contends that in response to a 1964 scientific article demonstrating
an association between asbestos insulation and a higher rate of cancer
among asbestos workers, it placed a warning on its packages of asbestos.
Defendant Celotex did not provide any warnings until 1972. In her negligence
claim, plaintiff alleges that defendants were negligent in failing to
inspect decedent's workplace to determine whether the proper equipment
and procedures were employed by the workers handling asbestos.
To analyze the propriety of the trial court's order, we must review this
Court's ten-year trek in the law of strict liability concerning asbestos
cases. The journey begins with Beshada
v. Johns-Manville Products Corp., supra, 90 N.J. 191, 447 A.2d 539. Beshada
was a products liability case based on strict liability for the failure
to warn of asbestos-related dangers, in which we ruled that manufacturers
and distributors would be deemed to know of the dangers of asbestos products
at the time of their manufacture. Id.
at 204-05, 447 A.2d 539. In effect, Beshada abolished the state-of-the-art
defense in asbestos cases. In reaching that result, we distinguished
negligence and strict liability cases. Writing for the Court, Justice
Pashman stated: "Essentially, state of the art is a negligence defense.
It seeks to explain why defendants are not culpable for failing to provide
a warning. * * * But in strict liability cases, culpability is irrelevant.
The product was unsafe." Id.
at 204, 447 A.2d 539. Accordingly, a defendant in a strict liability
asbestos case could not rely on the state-of-the-art defense and claim
it neither knew nor could have known that asbestos was dangerous. Thus,
Beshada imposed liability on defendants for the failure to warn of dangers
that were undiscoverable at the time of manufacture. The rationale for
this result was that it would advance the goals of strict liability --
[*426] risk spreading, accident avoidance, and the simplification of
fact-finding at trials. Id.
at 205-08, 447 A.2d 539.
Subsequently, in Feldman
v. Lederle Laboratories, 97 N.J. 429, 455, 479 A.2d 374 (1984), we
clarified Beshada by limiting the abolition of the state-of-the-art defense
to asbestos cases. Then, in Fischer
v. Johns-Manville Corp., 103 N.J. 643, 512 A.2d 466 (1986), we further
clarified Beshada by holding that a defendant's knowledge, or state of
knowledge, although inadmissible on a claim for compensatory damages
on a theory of strict liability, could be admissible on a claim for punitive
damages. The rationale was that claims for punitive damages depend on
proof of the defendant's knowledge and conduct. As we stated, "strict
products liability proofs center on the product; punitive damages proofs
center on a defendant's conduct." Id.
at 655, 512 A.2d 466. Thus, we held that "in a strict-liability
failure-to-warn case involving exposure to asbestos or asbestos products,
plaintiffs are not precluded from introducing evidence relating to defendants'
knowledge or conduct as it may be relevant to other aspects of the case,
including punitive damages." Id.
at 656, 512 A.2d 466.
The defendant in Fischer argued that one of the reasons for the Beshada
holding was that the elimination of the state-of-the-art defense would
simplify matters for the jury. This purpose, so the defendant argued,
would not be served by denying proofs of the defendant's misconduct on
the strict liability aspect of the case while allowing those proofs on
the claim for punitive damages. We rejected that argument, stating:
Presumably the fear is that jurors will be unable in their evaluation
of the strict liability claim to disregard whatever evidence
there may be of defendant's misconduct, and hence will be unable
to return a fair verdict. The fear is unfounded. Our faith in
the jury system is greater than the argument suggests. Juries
are often called on to consider alternative theories and to conduct
deliberations in stages, as when given interrogatories or a special
verdict sheet. We are confident that a careful charge, clearly
explaining the elements necessary for each finding, can assist
juries in reaching fair verdicts on both the liability phase
and, should they reach the question, punitive [*427] damages
in a failure-to-warn, strict products liability case. [ Id.
at 659, 512 A.2d 466 (citation omitted).]
Like the defendant in Fischer, defendants here contend that allowing
the introduction of conduct-oriented proofs will confuse the jury. We
remain persuaded, however, as we were in Fischer, that trial courts,
through careful instructions and special verdicts, can control the risk
of jury confusion. Furthermore, we are unpersuaded by defendants' arguments
that we violate principles of equal protection and due process by permitting
plaintiff to proceed on theories of both strict liability and negligence.
We are aware that the United States Court of Appeals for the Third Circuit
found "the Fischer case troubling." In
re Asbestos Litig., 829 F.2d 1233, 1244 (3d Cir.1987), cert. denied, 485
U.S. 1029, 108 S.Ct. 1586, 99 L.Ed.2d 901 (1988). Troubled as it
was by the potential impairment of simplified jury trials through the
admission of the defendant's conduct on punitive damages, the court sustained
the constitutionality of the abolition of the state-of-the-art defense
to strict liability claims in asbestos cases. 829
F.2d at 1244.
On remand, the trial court should not require plaintiff to elect between
proceeding on either negligence or strict liability theories. Plaintiff
may proceed on both claims. If plaintiff elects to proceed on her strict
liability claim, the state-of-the-art defense will not apply and plaintiff
need not show that defendants knew or should have known that asbestos
was dangerous. If plaintiff also proceeds on a negligence theory, her
negligence claim will be subject to the state-of-the-art defense.
Following the original oral argument, we directed the parties to brief
the issue of causation in toxic-tort cases. Pursuant to that direction,
the parties submitted supplemental briefs and reargued the case. On
further consideration, we have decided not to address the issue on
the record before us. [*428]
The trial court's dismissal of the complaint flowed directly from the
court's exclusion of Dr. Wagoner's testimony and its conclusion that
Dr. Sokolowski's testimony was a net opinion. Without the testimony of
these witnesses, plaintiff's case was devoid of proof of causation. Because
the directed verdict was the inexorable result of the evidentiary rulings,
our disposition of them requires that the directed verdict be set aside.
re Paoli R.R. Yard PCB Litig., supra, 916 F.2d at 835.
The judgment of the Appellate Division is reversed, and the matter is
remanded to the Law Division.