USA – NEW JERSEY Trends and Developments Contributed by: Mark Silver, Thomas Cotton, Joseph Amoroso and Timothy Duffy, Schenck, Price, Smith & King, LLP
determining whether a party qualifies as a product seller. A trade association’s general advocacy and self-regulatory activities on behalf of an industry do not constitute “marketing” of specific products within the meaning of the NJPLA. The court further held that the plaintiffs’ common law claims against PCPC ‒ sounding in negligence, fraud, fraudulent concealment, and civil conspiracy ‒ were not subsumed by the NJPLA because those claims did not arise from the sale of a defective product but from PCPC’s alleged misrepresentations and conceal - ment of risks. This aspect of the decision illustrates an important boundary of the NJPLA’s exclusivity doctrine: while the statute broadly pre-empts prod - uct liability claims cast in negligence or strict liability theories, it does not reach claims that are not, at bot - tom, product liability claims at all. Lanzo v Cyprus Amax Minerals Co., 467 N.J. Super. 476 (App. Div. 2021) The Appellate Division’s decision in Lanzo arose from one of the first talcum powder cases tried in New Jer - sey state court and produced a USD117 million judg - ment before the court ordered new separate trials. The case illustrates the NJPLA’s operation in high-stakes toxic tort litigation, particularly on the issues of expert testimony, punitive damages, and the procedural con - sequences of discovery misconduct. Plaintiffs Stephen Lanzo III and his wife Kendra Lanzo asserted design-defect and failure-to-warn claims under the NJPLA against Johnson & Johnson Consumer Inc. (JJCI) and Imerys Talc America, Inc., alleging that Mr Lanzo developed mesothelioma from long-term use of Johnson’s Baby Powder and Show - er to Shower talcum powder, both of which plaintiffs alleged contained asbestos. The trial court had dis - missed all common-law claims and permitted only the NJPLA claims to proceed. After a lengthy trial, a Middlesex County jury awarded USD30 million in compensatory damages to Mr Lan - zo, USD7 million to Mrs Lanzo for loss of consortium, USD55 million in punitive damages against JJCI, and USD25 million in punitive damages against Imerys ‒ a total of USD117 million. The trial court had imposed an adverse inference instruction against Imerys as a
sanction for discovery violations and spoliation of talc samples and test data. The Appellate Division reversed and remanded for new, separate trials. The court found several revers - ible errors, including that the consolidated trial of JJCI and Imerys was prejudicial once the jury received an adverse inference instruction attributing miscon - duct to Imerys alone. The court also scrutinised the admission of expert testimony on causation and the adequacy of jury instructions on alternative causa - tion, which the court held had improperly constrained the defendants’ ability to argue that something other than asbestos in Johnson & Johnson talc caused Mr Lanzo’s mesothelioma. For practitioners, Lanzo underscores the importance of spoliation issues, separate trial motions, and the standards governing expert testimony in NJPLA cases under New Jersey’s Rule 104 framework. It also dem - onstrates that even where the NJPLA’s failure-to-warn and design-defect theories are both viable, trial errors at the causation stage can unravel a large plaintiff’s verdict. Vicente v DePuy Synthes Companies, 570 F. Supp. 3d 232 (D.N.J. 2021) The District of New Jersey’s decision in Vicente is a useful illustration of the NJPLA’s pleading stand - ards and its subsumption doctrine as applied in the medical device context. Plaintiff Brian Vicente brought claims arising from the alleged failure of orthopaedic hardware ‒ plates and screws manufactured by DePuy Synthes and used in surgeries following a motorcy - cle accident ‒ asserting design defect, manufacturing defect, inadequate warning, and breach of implied and express warranty under the NJPLA. The court dismissed all claims with prejudice on the defendant’s second motion to dismiss under Rule 12 (b)(6). On the implied warranty count, the court held that Vicente’s claim was subsumed by the NJPLA because the essence of the claim was personal injury from a defective product, regardless of how it was labelled. The court rejected Vicente’s argument that representation-based claims fall outside the NJPLA’s pre-emptive reach, observing that courts must look to the essence of the claim rather than its label. Where
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