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Ripa v. Owens-Corning Fiberglas Corp.6/5/1995
e the fiber defense, and I'm not saying that you have to prove, as I was of the opinion initially, that perhaps you have to prove that the fiber was absent from your product, they have to prove that a fiber that was in your product caused the asbestos .
An expert need not have personal knowledge in order to provide an acceptable basis for his opinion. The evidence rules clearly provide that an expert may rely on sources other than personal knowledge, which sources need not even be admissible evidence in the case, "if of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Evid. R. 56(2) (N.J.R.E. 703). Here, the motion Judge clearly made no inquiry into whether the articles were "of a type reasonably relied upon by experts," nor apparently had that Judge in his earlier case to which he referred at argument.
However, quite apart from the propriety of barring reference to or reliance upon the two articles, the motion Judge's insistence that decedent's exposure to crocidolite had to be proven by fact rather than offered as opinion is alleged to have virtually vitiated Owens-Corning's fiber defense. We disagree with Owens-Corning's position. Defendant should not have been required to offer direct proof of the source of crocidolite exposure in order to combat inferentially plaintiff's theory that all types of asbestos cause mesothelioma.
The motion Judge understood and explained his ruling as only limiting one small area of proof, not the entire "fiber defense." In a later examination in a companion case, Schiavo v. Keene Corp., Nos. L-07636-88, L-09758-88, L-00878-89 (1993), (the record of which was argued to the trial Judge and supplied to us), after being told that defendant considered the fiber defense precluded by his earlier ruling, the motion Judge protested that he did not so rule. He stated:
At no time did I ever foreclose the defense from submitting a defense to this matter. ... No order has ever said that [the firm] ... may not offer, quote, "the fiber defense."
Dr. Demopoulos may get on the stand in any court in which I'm the presiding Judge and testify to that fact [mesothelioma is caused by crocidolite not chrysotile and amosite] and he may relate to any medical literature that he has to support his position.... And being a doctor and an expert, he may rely upon anything which persons practicing his discipline may rely upon in formulating their opinions, including epidemiological studies.
The trial Judge accepted the pretrial ruling by the motion Judge and understood its limited scope.
[Attorney for Owens-Corning]: The last thing I would bring up, Your Honor, is in this case there was a motion in limine brought before [the motion Judge] to preclude certain aspects of the testimony of Dr. Harry Demopoulos with regard to the fiber defense. Specifically it was ordered that Dr. Demopoulos could not testify concerning the fact that there was crocidolite at New York Ship and or Philadelphia Naval Yard in reliance upon literature, he had to have personal knowledge. We did take an interlocutory appeal which was not heard. I would request that his [ruling] be reconsidered by the trial Judge at this time.
[THE COURT]: Well, we have the right to do it. I mean insofar as it's concerned. I have the right to make a different determination, but candidly I'm not going to make a different determination unless there's some additional facts to be argued. Is there anything in addition to what you argued before the [motion Judge]?
[Emphasis added.]
Owens-Corning's fiber defense was built on what was essentially a syllogism: (1) An
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