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Ripa v. Owens-Corning Fiberglas Corp.6/5/1995
hearing should have been held. Defendant should have been permitted to show that the foundation upon which Dr. Demopoulos relied was the type reasonably relied on by experts in the field. In effect, the order entered by the motion Judge mistakenly shifted the burden of proof to defendant. As we will explain, however, defendant was not materially prejudiced by these rulings.
By letter of October 13, 1992, Dr. Demopoulos was identified as an expert who was expected to testify for defendant at trial. As a proponent of the "fiber theory" of causation of mesothelioma, Dr. Demopoulos was expected to state that Ripa's mesothelioma was probably caused by exposure to crocidolite, a type of asbestos that allegedly was not present in Kaylo. He noted that the concept of mesothelioma was not accepted by the medical community until 1960. Since decedent developed mesothelioma, and, therefore, according to Dr. Demopoulos had obviously been exposed to crocidolite asbestos, and Kaylo did not contain crocidolite, the mesothelioma could not have been caused by Kaylo. Further, the doctor opined that decedent was exposed to crocidolite at work. In reaching his Conclusion that crocidolite was present at the New York Shipyard in Camden, the witness planned to rely on two articles concerning the alleged import of crocidolite into this country and its presence at other shipyards.
Plaintiff moved in limine to preclude Dr. Demopoulos from offering testimony about the presence of crocidolite at Ripa's worksites. On December 18, 1992, the motion Judge held a hearing but declined to hear any extended argument on the motion, citing the argument made by the attorneys before him on the identical issue in a companion case. That same day, he entered an order that precluded defense experts from relying on or testifying about the two articles. The order then prevented defense experts from "testifying that... decedent was exposed to crocidolite asbestos," absent first-hand knowledge or otherwise competent, admissible evidence that crocidolite was present at a worksite of decedent. This order did not, however, preclude Dr. Demopoulos' inferential opinion concerning his theory that decedent's mesothelioma was not caused by exposure to Kaylo.
The admission or exclusion of evidence is generally within the discretion of the trial court, and its ruling will not be disturbed absent a clear abuse of that discretion resulting in an inJustice. Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92, 599 A.2d 528 (App. Div. 1991).
Here, defendant asked for an Evid. 8 (N.J.R.E. 104(a)) hearing, but the motion Judge refused and alluded to his experience in another case. The Judge stated that
there was a very limited Rule 8 hearing one time when [the motion Judge] turned Doctor Demopoulos in a very casual fashion and said "Doctor do you have any personal knowledge of that?" and he very candidly and honestly said no he did not . . . And then [that trial] went on, because [the motion Judge] didn't want to make a big deal out of it because the jury was sitting right there, and that was the end of it, so that was [the court's] limited Rule 8.
This was an inadequate Evid. R. 8(1) hearing. But the exclusion of evidence must still be examined to see whether it was harmless. R. 2:10-2. The motion Judge also had just explained his exclusionary ruling:
Well, I'm not shifting any burden of proof or anything else, I am just specifically saying that your expert cannot rely on these particular articles to make the quantum leap that therefore there had to be this particular fiber at the New York Ship or the -- whichever one it was, that's what I'm saying. I'm not saying that you can't us
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