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Ripa v. Owens-Corning Fiberglas Corp.6/5/1995
injured plaintiff's mesothelioma can only be caused by crocidolite; (2) defendant's product contains no crocidolite; therefore, (3) plaintiff contracted his or her mesothelioma by exposure to some other product, one containing crocidolite; and (4) since crocidolite was present in other products at decedent's worksite, the opinion concerning causation is borne out by the circumstances of the case. Remove either of the first two parts, and the syllogism fails. But if the fourth element is removed, all that is missing is some corroboration.
If the Judge had prohibited testimony about decedent's putative exposure to crocidolite because that testimony was opinion based on deductive reasoning and not on first-hand knowledge, the court would have materially impinged on the role of the expert witness, which is to assist the trier of fact in areas "beyond the ken of the average juror." State v. Kelly, 97 N.J. 178, 208, 478 A.2d 364 (1984). Even the fourth element was admissible as expert opinion, and was mistakenly excluded. The issue was not, as stated by the motion Judge, one of hearsay because of the witness' incorporation of the two disputed studies as a basis of his opinion. The function of the trial court is to determine the admissibility of evidence, but not to pass on its eventual credibility or weight. Lanzet v. Greenberg, 126 N.J. 168, 186, 594 A.2d 1309 (1991). The admissibility of the articles was not the issue; Dr. Demopoulos's opinions were.
This conflict points out the problem with the motion Judge's order, and the trial Judge's concurrence. The objection to Dr. Demopoulos' testimony should not have been raised as a hearsay issue unless defendant attempted to prove the truth of the articles or statements made by other experts to the witness. The articles and statements were not the proposed evidence; the opinions of the witness were. The witness stated, as he did in the extensive voir dire in another companion case (argued to the trial Judge) where the opinion evidence was permitted (Sheeks v. Keene Corp., L-7453-91 (1992)), that the basis of his opinion was the type of data upon which experts in his field rely. This would have satisfied Evid. R. 56(2) (N.J.R.E. 703), unless Evid. R. 4 (N.J.R.E. 403) barred the use of the opinion evidence, or the scientific reliability was challenged under the standards of Landrigan v. Celotex Corp., 127 N.J. 404, 414-418, 605 A.2d 1079 (1991). Cf. Daubert v. Merrell Dow Pharmaceuticals, Inc., U.S. , 113 S. Ct. 2786, 2794-2795, 125 L. Ed. 2d 469, 480, 481 (1993).
Although only the final element of defendant's proof was precluded, defendant chose not to present any part of Dr. Demopoulos' reasoning. The jury, at defendant's choice, was not given the theory that mesothelioma was only caused by crocidolite, a substance not found in Kaylo. This testimony was not barred and would have provided the foundation for the mistakenly barred testimony. But in determining the effect of the errors, we must try to look only at the barred opinion testimony as it might have affected the trial. If defendant did not think that the permitted testimony was of sufficient import to present, why should the preclusion of only the final non-dependent argument be other than harmless error? We are not inclined to upset the entire compensatory verdict over a preclusion of an embellishment where the basic argument was voluntarily withheld by defendant.
We therefore conclude the pretrial limitation of Dr. Demopoulos' testimony was but harmless error. We find no basis to upset the liability verdict or compensatory damages awarded.
V.
Defendant's objections to the punitive damage award have been divided into six sections. It claims
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