A New Jersey appeals court reopened a mesothelioma wrongful death lawsuit against Scotts Turf Builder lawn fertilizer after new evidence was discovered. The original lawsuit was filed in 2012 by New Jersey cabinetmaker Lorenz Brandecker. His personal injury lawsuit claimed his annual use of their products from 1967 to the 1980s contributed to his mesothelioma diagnosis. Scotts secured a victory in this case in 2014.
Brandecker’s lawsuit alleged the fertilizer he used was made with vermiculite ore that was contaminated with asbestos. Throughout the time period that he was using Turf Builder, evidence showed that Scotts used vermiculite from a mine in Libby, Montana. The mines in Libby are still part of numerous cleanup efforts by the Environmental Protection Agency today, after being listed on their National Priority List in 1999 because of the asbestos contamination. A report from the Agency for Toxic Substances and Disease Registry revealed Scotts used vermiculite as a filler in their products through 2001, though not all the vermiculite was obtained from Libby.
In the original 2012 filing, Brandecker’s lawyer requested samples of Turf Builder that would have been made with vermiculite from Libby. The company confirmed they had samples of vermiculite-containing fertilizer, but didn’t confirm it was made with samples from Libby or the time frame the sample was made. Without the proper evidence and the trial judge excluding some witness testimony on the plaintiff’s behalf, Scotts was granted a summary judgement in 2014. Brandecker unfortunately passed away from his mesothelioma years before the case closed.
Another similar lawsuit in 2015, however, ignited Brandecker’s estate to request the trial be reopened on grounds of newly discovered evidence and misrepresentation in the original trial. Another New Jersey lawsuit against Scotts revealed the company had found 26 samples of Turf Builder containing vermiculite that had been produced before 1980, a request that was seemingly unanswered in the 2012 lawsuit. These samples still need to be tested for asbestos contamination.
On appeal, the court vacated the final judgment based on the newly discovered evidence and that having the evidence would have more than likely impacted the result of the lawsuit. There is no expected timeline at this point for a new trial for Brandecker’s estate.
In the meantime, Scotts is facing another potential appeal from a similar lawsuit victory in 2017. Noel Fraser and his wife alleged his mesothelioma developed as a result of exposure to asbestos from the contaminated lawn fertilizer. Fraser also died of his mesothelioma in 2013. In an initial lawsuit, the court ruled in favor of Scotts. Fraser’s wife appealed the verdict, stating the judge failed to query the jury on a risk-benefit test of the fertilizer’s design defects and thus the trial was incomplete. It has yet to be seen if the appeal will be granted for this case.
