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New Jersey Appeals Court Revives Asbestos Cancer Lawsuit Against Scotts Turf Builder

A panel of judges for the New Jersey Superior Court's Appeals Division recently revived a lawsuit brought on behalf of a man who claimed he developed mesothelioma from years of exposure to asbestos in lawn fertilizer made by Scotts. As part of their ruling, the three-judge panel determined that the lower trial court erred when it failed to reverse its order granting summary judgement to the defense after new evidence came to light. With that order, the plaintiff has hope that the trial court will grant it the opportunity to convene a new trial and give the plaintiff a chance to recover the vital compensation necessary to be made whole again.


The case began in July 2012 when a man from Wayne, New Jersey filed suit against Scotts, claiming that from 1967 to 1980 he was repeatedly exposed to asbestos contaminated vermiculite contained in the company's Turf Builder lawn fertilizer. The mesothelioma cancer lawsuit claimed that the vermiculite Scotts manufactured its Turf Builder with was sourced from a now infamous mine in Libby, Montana, which is the root of hundreds and potentially thousands of other lawsuits against the mine's former owner.


As the case made its way through the civil lawsuit process, the trial judge hearing the case dismissed the testimony of four expert witnesses for the plaintiff who would have testified to the victim's claims that Scotts Turf Builder contained asbestos. As a result, the defendants successfully argued a motion for summary judgement in January 2014, which effectively threw out the case and left the plaintiff with limited access to justice.


Fortunately for the plaintiff, the defendants produced evidence to the same lawyers handling another case that showed that Scotts had discovered other samples of vermiculite from before 1980, which the company had used in its Turf Builder product. In July 2015, the plaintiff introduced a motion to have the defendant's motion for summary judgement reversed based on the discovery of the new evidence. The trial judge ruled that although the defendants did have a duty to provide the evidence, it could not reverse the order under state evidentiary rules in civil cases.


The plaintiffs then appealed the trial court's refusal to allow a new trial and the Superior Court's Appeals Division ruled that the plaintiffs had indeed met the law's requirements for vacating final judgment based on newly discovered evidence that would probably alter the outcome. However, it will still be up to the trial judge to determine whether the plaintiff may have additional time to file a motion addressing the effect of the discovery violation on the in limine and summary judgment orders.


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