A New Jersey appeals court has reopened a wrongful death suit on behalf of a man who, plaintiffs claim, developed mesothelioma as a result of using Scotts lawn fertilizer.

The appeals court, reversing the trial judge, said newly discovered evidence required reopening the case. Scotts had secured dismissal of the lawsuit on summary judgment in January 2014.

Another suit seeking to link Scotts lawn fertilizer to mesothelioma, Fraser v. Scotts, also ended in a defense verdict in a state court in Los Angeles in July 2017, according to online reports. The jury verdict in that case is on appeal.

The New Jersey suit was brought on behalf of Lorenz Brandecker, a cabinet maker from Wayne, New Jersey. His July 2012 suit claimed that his twice-yearly use of Scotts Turf Builder fertilizer on his lawn from 1967 to 1980 contributed to his development of mesothelioma. He also brought suit against other companies that allegedly exposed him to asbestos at work, including Homasote Co., which entered into a confidential settlement, according to court documents. Brandecker's suit claimed Turf Builder was made with vermiculite ore that contained asbestos. He died in October 2012.

From 1966 to 1980 Scotts made its fertilizer with vermiculite from a mine in Libby, Montana, that contained asbestos. Brandecker's lawyers asked Scotts in discovery for samples of Turf Builder made with vermiculite from Libby. The company responded that it had a sample of Turf Builder containing vermiculite but it could not determine when it was made or where the vermiculite came from.

Expert testimony by four witnesses for the plaintiff was partly or completely excluded by the trial judge, and Scotts was granted summary judgment in January 2014. But in May 2015, Scotts served notice to plaintiff's counsel at Szaferman, Lakind, Blumstein & Blader of Lawrenceville, New Jersey, that it had discovered 26 samples of its fertilizer from before 1980 that were made from vermiculite ore obtained from the Montana mine. But that notice was served in another suit brought by Szaferman Lakind, not in Brandecker's case.

Scotts said it rediscovered the samples in 2014 and provided them to an expert, William Longo, without notifying other parties or the court. Longo tested the samples but they were then lost or destroyed.

Counsel for Brandecker's estate moved in July 2015 to vacate their summary judgment dismissal and requested to restore the case to the active docket. They claimed that the samples constituted newly discovered evidence and that Scott's answers to discovery and failure to disclose the samples constituted misrepresentation.

The trial court ruled that Scotts had a duty to provide the vintage samples under the discovery rules. But the trial court denied plaintiff's motion to vacate dismissal on procedural grounds, finding that Rule 4:50-1 only applied to final orders and judgments, and not to the January 2014 orders, which were interlocutory.

On appeal, Judges Jose Fuentes, Ellen Koblitz and Karen Suter ruled that the plaintiffs met the conditions for vacating final judgment based on newly discovered evidence which would probably alter the judgment or orders and whether, by due diligence, it could not be discovered in time to move for a new trial. They vacated the final judgment based on the new evidence related to the 26 samples.

The court met the requirements for relief from a final judgment based on newly discovered evidence, having demonstrated “that the evidence would probably have changed the result, that it was unobtainable by the exercise of due diligence for use at the trial, and that the evidence was not merely cumulative,” the panel said.

The appeals court vacated the final judgment based on the new evidence, but left to the trial court to determine whether plaintiffs should be given additional time to file a motion addressing the effect of the discovery violation on the in limine and summary judgment orders.

Jeffrey Blumstein of Szaferman Lakind represented the plaintiffs at the Appellate Division along with Levy Konigsberg of New York. Blumstein did not return a call.

Scotts' lawyer was Lori Elliott Jarvis of Hunton & Williams in Richmond, Virginia. She did not return a call about the case. Scotts did not respond to a reporter's message to its headquarters seeking comment.