(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued November 29, 1993 -- Decided November 15, 1994
CLIFFORD, J., writing for a unanimous Court.
In October 1984, Albert Becker was diagnosed as suffering from mesothelioma, a rare form of
incurable cancer that affects the pleural membrane, the layer of cells surrounding the lungs and chest cavity.
Albert and his wife, Edith, filed a strict-liability, toxic-tort lawsuit in November 1985, alleging that the various
miners, manufacturers, and sellers of certain asbestos products had caused Albert's personal injuries and
damages because of Albert's exposure to those products. Albert died of mesothelioma during the course of
this litigation and Edith thereafter added a wrongful-death claim to the complaint.
Albert worked as an automobile mechanic from 1953 to 1985. Throughout much of his career,
Albert performed approximately one to five brake jobs per week and one to four clutch jobs per month. The
products he used to perform those jobs did not provide any warnings regarding asbestos exposure until
approximately 1975. Albert was exposed to dust allegedly containing chrysotile-asbestos fibers that are used
in brake linings.
All but three defendants, United Motor Parts, Inc., Englewood Brake Company, Inc., (Englewood
Brake), and General Motors Corp. (GM) settled or were dismissed prior to trial. At the close of the trial,
on Becker's request, the court informed the jury that it had determined as a matter of law that the friction
products containing asbestos which were manufactured, sold and distributed without warnings were defective
for the reason that they contained no warnings. The jury concluded that Englewood Brake and GM, as well
as other settling defendants, were liable. The jury returned a verdict of $250,000 for Albert's pain and
suffering, $500,000 for his wrongful death and $250,000 for Edith's loss of consortium and services.
Thereafter, Englewood Brake and GM moved for, among other relief, a new trial. The court denied the
new-trial motion, holding that its ruling that asbestos products without warnings are defective as a matter of
law was based on this Court's holding in Beshada v. Johns-Manville Product Corp.
The Appellate Division, in an unreported opinion, affirmed the judgments against GM and
Englewood Brake on the defect-as-a-matter-of-law issue. The Appellate Division rejected the defendants'
argument that Beshada focused only on the state-of-the-art defense, instead finding that Beshada effectively
concluded that asbestos products that are marketed without health warnings are defective as a matter of law.
The Supreme Court granted certification.
HELD: The Appellate Division erred in affirming the trial court's charge to the jury that all asbestos-containing products without warnings are defective as a matter of law; the jury was not given the
opportunity to determine whether the asbestos product was dangerous, thereby rendering
premature and unfounded the court's application of the risk-utility analysis and its conclusion that
without a warning the asbestos product was defective as a matter of law.
1. To assert a successful cause of action in strict-products liability a plaintiff must prove that the product was defective, that the defect existed when the product left the defendant's control, and that the defect caused injury to a reasonably foreseeable user. A failure to warn, or a failure to warn properly, can constitute a defect in a product sufficient to support an action in strict liability. To determine whether a
product is defective, courts look to the risk-utility analysis that compares the utility of the product with the
risk of injury that the product poses to the public. (pp. 7-9)
2. The matter before the Court concerns a failure to warn. In respect of causation in asbestos failure-to-warn cases, a plaintiff must prove product-defect causation (that the absence of a warning proximately
caused the plaintiff's injury) and medical causation (that exposure to the defendant's asbestos proximately
caused the injury). In such cases, the question is whether, assuming the manufacturer knew of the defect in
the product, it acted in a reasonably prudent manner in marketing the product or providing the warnings
given. To refute the assumption of knowledge of the dangerous propensity of a product, a defendant usually
may present state-of-the-art evidence, which is evidence that a product's danger was scientifically
undiscoverable at the time of its distribution by the defendant. (pp. 9-11)
3. The Appellate Division misread Beshada when it held that any friction product that contains
asbestos is defective if it does not contain a warning. The primary flaw in the court's holding is the
assumption that all asbestos products are dangerous and unsafe when, in fact, different types of asbestos pose
different health hazards. Plaintiff's expert testified that chrysotile asbestos can cause mesothelioma in
humans and that brake dust contains chrysotile. On the other hand, defense experts expressed the view that
processed chrysotile does not cause mesothelioma and that used brake dust contains chrysotile only in
amounts that are below established safety standards. Confronted with that disagreement, the trial court
should have permitted the jury to resolve the disputed issue of fact in respect of whether processed chrysotile
asbestos used in brake products poses a risk of causing mesothelioma in the users of those products before
applying the risk-utility test. That analysis should focus on the specific products involved. (pp. 11-23)
4. The Appellate Division read Beshada too broadly. Beshada dealt with the state-of-the-art defense.
Moreover, Beshada came to the Court on interlocutory appeal by the plaintiff from the trial court's denial of
the defendant's motion to strike the state-of-the-art defense. The parties' arguments on appeal were directed
solely to the issue of whether the medical communities' awareness of the dangers of asbestos is a defense to
plaintiff's claims. In Beshada, the Court was not confronted, as it is here, with conflicting proofs that the
asbestos products were not in fact dangerous or that, without a warning, the risks of those asbestos products
outweighed their utility. (pp. 22-30)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law
Division for retrial.
JUSTICES HANDLER, POLLOCK, GARIBALDI, and STEIN join in JUSTICE CLIFFORD's
opinion. CHIEF JUSTICE WILENTZ and JUSTICE O'HERN did not participate.
SUPREME COURT OF NEW JERSEY
A-55/
196 September Term 1993
EDITH BECKER, as Administratrix
and Administratrix ad Prosequendum
of the Estate of Albert Becker,
Plaintiff-Respondent,
v.
BARON BROTHERS, COLISEUM AUTO PARTS,
INC.; D & M AUTO PARTS; C & M
AUTOMOTIVE WAREHOUSE, INC.; COUNTY
AUTO PARTS; R & B AUTO SUPPLY; UNITED
MOTORS PARTS, INC.; PARTS PLACE;
TENAFLY FOREIGN & DOMESTIC CARS, INC.;
MAREMONT, INC.; NUTURN, INC.; NATIONAL
BRAKE BLOCK, INC.; SMS AUTOMOTIVE
PRODUCTS, INC.; CONSOLIDATED UNIT;
MORAK; ALLENDALE AUTOMOTIVE ENTERPRISE;
MOTOR AGE WAREHOUSE; SUPREME AUTOMOTIVE
WAREHOUSE; AUTOMOTIVE SYSTEMS, INC.;
STATE CAR AND TRUCK PARTS WAREHOUSE;
WHITE PLAINS/BWP DISTRIBUTORS, INC.;
UCI DISTRIBUTION CENTER/UCI WAREHOUSE
WESTCHESTER; RAYMARK CORPORATION and
RAYMARK INDUSTRIES, INC., as successor
to RAYBESTOS-MANHATTAN; BENDIX
CORPORATION; MOPAR; FORD MOTOR COMPANY;
ABC; BORG WARNER; RAYLOC; EIS; WAGNER;
PRIVATE BRANDS; VERA IMPORTED PARTS;
SANYO AUTOMOTIVE; INTERCO PARTS
CORPORATION; LUCAS INDUSTRIES INC.;
I.A.P. IMPORTED PARTS; COLUMBIA MOTORS
CORPORATION; GLOBE AUTO IMPORTS; EPE,
INC.; and JOHN DOE CORPORATIONS (a
fictitious name representing one or
more suppliers or distributors of
asbestos containing products to
plaintiff's employers); and RICHARD
ROE CORPORATIONS (a fictitious name
representing one or more manufacturers,
of asbestos containing products),
Defendants,
and
GENERAL MOTORS CORPORATION
(originally impleaded as Delco)
and ENGLEWOOD BRAKE CO., INC.,
Defendants-Appellants.
Argued November 29, 1993 -- Decided November 15, 1994
On certification to the Superior Court,
Appellate Division.
Rudy B. Coleman argued the cause for
appellant (Carpenter, Bennett & Morrissey,
attorneys; Mr. Coleman and Rosemary Alito, of
counsel; Ms. Alito and Bonnie E. Bershad, on
the briefs).
Robert E. Mensel on behalf of appellant
Englewood Brake Co., Inc., relies on the
briefs and argument presented on behalf of
appellant General Motors Corporation (Hanlon,
Lavigne, Herzfeld & Rubin, attorneys).
Bryan D. Garruto argued the cause for
respondent (Garruto, Galex & Cantor,
attorneys; Mr. Garruto and Frances A. Tomes,
of counsel; Mr. Tomes, on the brief).
Thomas F. Campion argued the cause for amicus
curiae, Allied Signal, Inc. (Shanley &
Fisher, attorneys).
The opinion of the Court was delivered by
CLIFFORD, J.
On the strength of Beshada v. Johns-Manville Products Corp.,
90 N.J. 191 (1982), the Appellate Division ruled that all
asbestos products marketed without warnings are defective as a
matter of law. It therefore affirmed the judgment of the Law
Division, entered on a verdict by a jury that had been instructed
that that was the law.
We granted the petitions for certification of defendant General Motors Corp., 134 N.J. 476 (1993), and of defendant
Englewood Brake Company, Inc., ___ N.J. ___ (1994), and now
reverse.
Albert Becker was diagnosed in October 1984 as having
contracted mesothelioma, a rare form of incurable cancer that
affects the pleural membrane, the layer of cells surrounding the
lungs and the chest cavity. He and his wife commenced this
strict-liability, toxic-tort action in November 1985, seeking
recovery from various miners, manufacturers, and sellers for
personal injuries and consequent losses that they had sustained
because of Becker's exposure to asbestos-containing products.
After Albert Becker's death from mesothelioma at age fifty-five,
in the course of this litigation, his wife added a count for her
husband's wrongful death. Although she is correctly denominated
the plaintiff, reference henceforth in this opinion to
"plaintiff" is to Albert.
Plaintiff worked as an automobile mechanic for various employers from 1953 to 1967. In that year he opened his own service station, Tenafly Getty, which he operated until 1985. Throughout much of his career as a mechanic, Becker performed approximately one to five brake jobs per week and one to four clutch jobs per month. The products he used to perform those jobs did not provide any warnings regarding asbestos exposure
until sometime around 1975, when manufacturers apparently began
putting warnings on some of their products. Plaintiff was
exposed to dust allegedly containing chrysotile-asbestos fibers
as the result of his work in the following ways: (1) through
removal of old parts from cars to replace them with new ones,
which caused dust to come off the old parts near his face; (2)
through using a wire brush to clean the dust out of the parts or
through washing the dust off the parts, which caused the dust
eventually to settle to the floor, to dry, and to float around in
his shop; (3) through sanding parts with grease on them, which
caused dust to come off the brakes; and (4) through watching one
of his distributors grind old parts on a lathe during the
remanufacturing process, thereby releasing dust into the air.
All but three defendants, United Motor Parts, Inc., Englewood Brake Company, Inc. (Englewood Brake), and General Motors Corp. (General Motors) settled or were dismissed prior to trial. At the close of the case, plaintiff asked the court to rule that "an asbestos[-]containing friction product [that] is friable is defective as a matter of law if it contains no warnings." Because the court believed that all asbestos products without warnings are defective, it agreed with plaintiff's position. The court stated that whether processed chrysotile asbestos can cause mesothelioma "is a proximate cause defense. It has nothing to do with whether * * * a product that contains asbestos, more specifically chrysotile, can be marketed without a
warning and be considered not defective." The court therefore
told the jury before the attorneys' closing arguments:
I've already ruled as a matter of law that
some of the asbestos[-]containing friction
products that were manufactured, sold and
distributed by some of the defendants
constituted an unsafe product. In other
words, a defective product. The defect being
the absence of any warning at all on these
particular products. * * * . You must,
therefore, accept that the asbestos products
in this case are legally unsafe and defective
products, those that contain no warnings at
all.
In keeping with that ruling, the court placed the following
preamble on the jury-verdict sheet: "This court has determined
as a matter of law that those friction products containing
asbestos which were manufactured sold and distributed without
warnings were defective for the reason that they contained no
warnings." The verdict sheet also asked the jury to determine
whether "those asbestos-containing friction products which * * *
did provide warnings [were] defective because they failed to
provide adequate warnings"; whether "exposure to the type of
asbestos contained in the friction products [was] a proximate
cause of Albert Becker's injury and death"; whether the "products
manufactured, sold and distributed by the [specified defendants
were] a substantial contributing factor in the cause of Albert
Becker's injury and death"; and if so, then to allocate a
percentage share of responsibility for each of those defendants.
The jury returned a verdict of $250,000 for plaintiff's pain
and suffering, $500,000 for his wrongful death, and $250,000 for
his wife's loss of consortium and services, finding defendants
Englewood Brake and General Motors, as well as several other
defendants that had settled, liable. Englewood Brake and General
Motors then moved for, among other relief, a new trial. In
denying the new-trial motions, the court stated that its basis
for ruling that asbestos products without warnings are defective
as a matter of law was "pretty much * * * judicial gut reaction
and instinct as well as Beshada."
On appeal, the Appellate Division, in an unreported opinion,
affirmed the judgments against General Motors and Englewood Brake
on the defect-as-a-matter-of-law issue. The Appellate Division
rejected defendants' argument that Beshada "focused only on the
state-of-the-art defense." The court found instead that "[t]he
Beshada Court effectively concluded that asbestos products which
are marketed without health warnings are defective as a matter of
law." The Appellate Division cited one published opinion
discussing the issue, Campolongo v. Celotex Corp.,
681 F. Supp. 261 (D.N.J. 1988), which stated:
The focus of Beshada was whether the
product was defective for lack of a warning.
* * * . Beshada survives but is limited to
the circumstances giving rise to its holding.
Since New Jersey chooses to treat asbestos
cases differently than other product
liability cases, it does not require a
quantum leap for this court to suggest that,
as a matter of law and policy, an asbestos-related product without a warning is a
defective product.
The court also rejected General Motors' "argument that Beshada's
absolute liability principle has no pertinence here because the
product was fabricated brake linings, not bulk asbestos." It
concluded that "[t]he form of the asbestos product, whether raw
fiber in bags or in a finished product, is not controlling in
determining whether the asbestos product is defective as a matter
of law. The key consideration is whether the asbestos product
was marketed without a warning."
Because this case was filed before the enactment of the
Products Liability Act, N.J.S.A. 2A:58C-1 to -7, that legislation
does not guide our decision in this case. See L. 1987, c. 197,
§ 8 (stating that act applies only to products-liability actions
filed after date of enactment, July 22, 1987); Herman v. Sunshine
Chem. Specialties Co.,
133 N.J. 329, 335 (1993) (same).
This strict-products-liability case is based on an inadequate-warning theory. Strict liability "imposes liability for injury to another's person * * * without any consideration of the defendant's intent to commit the act or cause the injury, or
of his moral blameworthiness." Fischer v. Johns-Manville Corp.,
103 N.J. 643, 652-53 (1986). Successful assertion of a cause of
action in strict products liability requires that a plaintiff
prove several elements: "that the product was defective, that
the defect existed when the product left the defendant's control,
and that the defect caused injury to a reasonably foreseeable
user." Feldman v. Lederle Labs.,
97 N.J. 429, 449 (1984); see
also O'Brien v. Muskin Corp.,
94 N.J. 169, 179 (1983) (same);
Michalko v. Cooke Color & Chem. Corp.,
91 N.J. 386, 394 (1982)
(same).
A manufacturer has "a duty to produce and distribute a product that is reasonably fit, suitable, and safe. It has not met that obligation if it puts a defective article into the stream of commerce that causes injury * * * ." Feldman, supra, 97 N.J. at 450. A failure to warn, or a failure to warn properly, can constitute a defect in a product sufficient to support an action in strict liability. See id. at 449 (stating that "defect may take one of three forms: a manufacturing flaw, a design defect, or an inadequate warning"); Freund v. Cellofilm Properties, Inc., 87 N.J. 229, 236-41 (1981) (holding that inadequate warning could constitute design defect); Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 176 (1979) ("[A] product may be unsafe because of inadequate instructions."). "[A]n adequate warning is one that includes the directions,
communications, and information essential to make the use of a
product safe." Freund, supra, 87 N.J. at 243.
In general, courts approach the question of whether a
product is defective through the risk-utility analysis, a
standard "based on a comparison of the utility of the product
with the risk of injury that it poses to the public * * * ."
O'Brien, supra, 94 N.J. at 181. "In the case of a design defect
consisting of an inadequate warning, * * * imposing the
requirements of a proper warning will seldom detract from the
utility of the product." Freund, supra, 87 N.J. at 238 n.1.
In respect of causation in asbestos failure-to-warn cases, a
plaintiff must prove two types of causation: product-defect
causation and medical causation. Product-defect causation means
that the absence of a warning proximately caused the plaintiff's
injury, and medical causation means that exposure to the
defendant's asbestos proximately caused the injury. Coffman v.
Keene Corp.,
133 N.J. 581, 594 (1993).
Generally, the emphasis in strict-products-liability analysis is on the safety of the product, not on the reasonableness of a defendant's conduct. Feldman, supra, 97 N.J. at 450. Thus, in most cases, strict liability is different from negligence. In a strict-liability case "the defendant is assumed to know of the dangerous propensity of the product, whereas in a
negligence case, the plaintiff must prove that the defendant knew
or should have known of the danger." Ibid. In cases in which
the defect alleged is failure to warn, however, strict-liability
analysis becomes similar to negligence analysis. Id. at 451.
The reasonableness of a defendant's conduct becomes a factor to
consider. Ibid. The question in such cases is whether,
"assuming that the manufacturer knew of the defect in the
product, he acted in a reasonably prudent manner in marketing the
product or providing the warnings given." Ibid.; see Fischer,
supra, 103 N.J. at 654. A court will assume that "the defendant
knew of the dangerous propensity of the product, if the knowledge
that is assumed is reasonably knowable in the sense of actual or
constructive knowledge." Id. at 454.
To refute the assumption of knowledge of the dangerous
propensity of a product, a defendant usually may present state-of-the-art evidence -- that is, evidence that a product's danger
was scientifically undiscoverable at the time the defendant
distributed the product. See Fischer, supra, 103 N.J. at 656
("[T]he effect of the 'state-of-the-art' defense is to permit a
defendant to rebut the presumption of knowledge of its product's
harmful propensities * * * by proving the impossibility of
knowledge, even by experts in the field."). However, in Beshada,
supra,
90 N.J. 191, a case involving injuries from exposure to
various asbestos products, the Court held that the state-of-the-art defense was unavailable. But in Feldman, supra, a strict-products-liability case involving prescription drugs, the Court
restricted Beshada "to the circumstances giving rise to its
holding." 97 N.J. at 455. Accordingly, the Court allowed the
presentation of state-of-the-art evidence.
In this case, the Appellate Division affirmed the trial
court's determination that any friction product that contains
asbestos is defective if it does not provide a warning. That
ruling adopts as a matter of law the proposition that the utility
of asbestos-containing friction products outweighs the risk that
those who use them will contract mesothelioma and that a warning
about that risk would have made the products safer without
impairing their utility. Underlying that conclusion is the
assumption, then, that in fact a risk exists that users of
friction products will contract mesothelioma. The court relied
on Beshada, supra, 90 N.J. at 209 (stating in case involving
asbestos products that "[w]e are saying that defendants' products
were not reasonably safe because they did not have a warning"),
believing that Feldman, supra, 97 N.J. at 455 ("We do not
overrule Beshada, but restrict Beshada to the circumstances
giving rise to its holding."), means that Beshada's statement
that asbestos products without warnings are not reasonably safe
applies to all asbestos cases.
We conclude that the Appellate Division's ruling that any
friction product that contains asbestos is defective if it does
not contain a warning is based on a misreading of Beshada. The
primary flaw in the Appellate Division's analysis is its
assumption, derived from its understanding of Beshada, that all
asbestos products are dangerous and unsafe. That assumption is
dispelled by a detailed examination of the record in this case,
which reveals that different types of asbestos pose different
health hazards. That examination makes abundantly clear that
whether the processed chrysotile in brake products poses a risk
of causing mesothelioma in the users of those products was a
sharply-disputed issue of fact at trial.
Chrysotile asbestos is the type of asbestos used in brake linings. Another type is amphibole asbestos. Amphiboles have long, straight, inflexible fibers that are resistant to corrosion and that the body can retain for a lifetime. About ten percent of commercially-used asbestos consists of two types of amphiboles: amosite and crocidolite. Chrysotile asbestos, on the other hand, consists of short, flexible, corkscrew-shaped fibers that have numerous subunits, called fibrils, that break down readily in the body. Chrysotile asbestos comprises about ninety percent of asbestos that is commercially used in this
country. Chrysotile can be contaminated with a number of
carcinogenic substances, including tremolite.
No witness at trial appeared to dispute that amphiboles can
cause mesothelioma. Moreover, even a defense expert admitted
that non-processed chrysotile may cause mesothelioma (although he
attributed mesotheliomas resulting from such exposure to the
presence of contaminants, tremolite or actinolite, contained in
the raw chrysotile fiber). The parties presented conflicting
evidence, however, about whether processed chrysotile can cause
the disease.
Dr. Daum, plaintiff's medical expert, certified in internal medicine and preventive and occupational medicine, testified in support of her conclusion that "[b]rake mechanics are definitely at risk of getting mesothelioma from their exposure to asbestos in brakes." Dr. Daum explained that only ninety percent of asbestos that gets into the lungs escapes from the body through coughing. Thus, inasmuch as an average factory worker breathes in millions of asbestos fibers in an eight-hour day, the body retains many fibers, which invade the tissue surrounding the air sac, the interstitium, causing scar tissue and asbestosis. She further explained that the fibers migrate from there to the pleura, the lining of the lung and chest wall that lubricates and seals the lung, causing mesothelioma. Dr. Daum testified that a microscopic examination of the pleura will not show the presence
of chrysotile fibers, but their absence on examination does not
support the conclusion that they were never there. Although
mesothelioma has a long latency period from the first exposure
(the latency period averages approximately twenty-five to thirty
years, although ranges as short as nine and as long as fifty
years have been documented), chrysotile fibers eventually break
down and leave the body; autopsies reveal scar tissue and the
presence of tremolite, a contaminant, indicating that chrysotile
was in the pleura.
In contrast, a defense expert, Dr. Craighead, a pathologist and epidemiologist, concluded that "no epidemiological evidence [exists] to indicate that processed chrysotile has the capacity to produce mesotheliomas in man," although he acknowledged that he had written in one publication that epidemiological studies indicate that occupational groups exposed to chrysotile asbestos have a "low order of risk" for contracting the disease. He explained that the shape of chrysotile fibers would cause them to tend not to enter the pleura and cause mesothelioma in the manner that Dr. Daum had described. He noted that amphiboles, because they are straight, thin fibers, do penetrate deep into the lungs to the periphery, along the pleural lining where mesothelioma starts. Chrysotile, however, generally does not travel as far toward the pleura because of its curly shape. Accordingly, chrysotile fibers accumulate centrally in the lungs, break into
smaller fibers, and get removed by macrophages, the mucociliary
escalator, and lymphatics.
Dr. Daum concluded that eighty-five to one-hundred percent
of mesotheliomas are caused by asbestos exposure. She also
testified that although the remaining fifteen percent have no
known cause, she believed they could be attributed to asbestos in
the atmosphere. Dr. Craighead, on the other hand, believed that
the percentage of mesotheliomas with unknown causes was twenty to
forty percent. Dr. Daum acknowledged on cross-examination that
she believed that fiberglass, or glass fibers of a certain size,
or radiation also could cause mesothelioma.
The experts also disagreed about the conclusiveness of a number of case and epidemiological studies regarding asbestos exposure and mesothelioma. Dr. Daum testified about studies showing in various contexts, including studies of workers in mines, factories, and garages, that people exposed to asbestos later contracted mesothelioma. Dr. Craighead countered that many of those studies were not conclusive in respect of processed chrysotile because many of the people in those studies who had developed the disease had also been exposed to amphiboles or to raw chrysotile with contaminants. As Dr. Daum admitted, many of the studies on which she relied did not differentiate between types of asbestos fibers. Finally, Dr. Wong, an epidemiologist, testified for the defense that the studies Dr. Daum had cited
relating specifically to garage mechanics contracting
mesothelioma did not actually show an increased risk of
mesothelioma for mechanics; the same or fewer number of
mesothelioma cases had occurred among the garage mechanics as had
occurred in the background, non-asbestos-exposed population.
Concerning animal testing, Dr. Daum noted that one study
showed that injecting inorganic fibers of chrysotile's size into
animals caused mesothelioma. Dr. Craighead agreed that injecting
large amounts of chrysotile into the abdominal cavity of rats
could cause mesothelioma, but he concluded that the results of
animal studies are not totally translatable in respect of humans;
such studies may show how mesotheliomas develop but they are
"artificial situations that don't speak to the question of what
types of asbestos cause mesothelioma." The same experiment as
had used rats as the subject did not cause mesothelioma when
conducted on hamsters and mice. Moreover, although injecting
fiberglass, aluminum, and talc into rats causes mesothelioma in
those animals, no evidence has shown that those three substances
cause mesothelioma in humans.
The testimony was further in conflict on whether plaintiff could have been exposed to chrysotile asbestos from working with brake shoes. Plaintiff's expert, Dr. Frasca, who had examined a number of unused brake shoes with an electron microscope and with an energy-dispersive x-ray, testified that he had detected
chrysotile-asbestos fibers in the new brake shoes. He also
testified that half of the chrysotile fibers he had seen were of
respirable size (smaller than one-hundred microns), and that more
than ten percent of the chrysotile fibers on the surface of the
products were potentially friable, that is, they had the ability
to become airborne if the surface was touched or disturbed in
some way. Dr. Daum testified that one to fifteen percent of the
chrysotile survived the braking process.
On the other hand, a defense witness, Dr. Krebs, General
Motors' director of toxic materials, who held a Ph.D. in
industrial health, testified that although most brakes have
approximately fifty-percent chrysotile asbestos, more than
ninety-nine percent of that fibrous chrysotile is converted to
non-fibrous asbestos by the extreme heat of the braking process,
meaning that used-brake dust contains less than one-percent
fibrous chrysotile asbestos. Moreover, after studying the air in
the service stations of several General Motors dealerships, he
determined that the level of fibers in the air was under the
threshold limit value for chrysotile established by the
Conference of Governmental Industrial Hygienists (two fibers per
cubic centimeter of air) and under the OSHA permissible exposure
limit for all asbestos (two fibers greater than five micrometers
in length per cubic centimeter). Those standards represent the
level at which those organizations have determined that adverse
health effects will occur.
Defendants also offered an alternative explanation for the
cause of plaintiff's disease in the form of a different asbestos
exposure. From the time of his boyhood, plaintiff had enjoyed
mineralogy. In pursuit of his hobby he had collected rocks,
including a sample of mineral asbestos. That hobby also took him
to quarries, which may have contained asbestos, just after the
quarries had been blasted.
We have recapitulated in such detail the testimony of the
various experts only to put beyond question that the trial
revolved around a factual dispute over whether the dust from
brake products can cause mesothelioma. In sum, plaintiff's
expert Dr. Daum testified in support of the propositions that
garage mechanics are at risk of contracting the disease, that
chrysotile asbestos can cause mesothelioma in humans, and that
brake dust contains chrysotile. Defense experts, on the other
hand, expressed the view that processed chrysotile does not cause
mesothelioma and that used-brake dust contains chrysotile only in
amounts under established safety standards. Confronted with
that disagreement, the trial court should have permitted the jury
to resolve the disputed issue of fact in respect of the dangers
of the asbestos product involved in this case before moving to
application of the risk-utility test. See, e.g., O'Brien, supra,
94 N.J. at 184.
Ordinarily, in respect of the risk-utility analysis, if the
parties present conflicting proofs, the fact-finder is to
determine whether a defect exists. See Soler v. Castmaster,
Division of H.P.M. Corp.,
98 N.J. 137, 153-54 (1984) ("[I]t is
the jury that must * * * determine whether th[e] duty [to
manufacture a product that is suitably safe for its intended or
anticipated purposes under the risk-utility standard] has been
breached."); Johnson, supra, 97 N.J. at 89 ("Ordinarily the jury
should be permitted to determine whether 'the risks of injury so
outweighed the utility of the product as to constitute a
defect.'" (quoting O'Brien, supra, 94 N.J. at 184)).
A ruling that all asbestos-containing products without warnings are defective as a matter of law presumes that all asbestos-containing products pose the same risks about which the users of those products must be warned, regardless of the differences in those products. This Court, however, has ruled that the risk-utility analysis should focus on the specific product before the court. See, e.g., Feldman, supra, 97 N.J. at 447 (stating that whether product "is unsafe should be decided on a case-by-case basis"); O'Brien, supra, 94 N.J. at 183 ("Where a particular product falls on the risk-utility continuum will depend on the facts of each case."). In addition, the use of a product-by-product approach rather than a categorical one is supported by commentators. See generally James A. Henderson, Jr. and Aaron D. Twerski, Closing the American Product Liability
Frontier: The Rejection of Liability Without Defect,
66 N.Y.U.
L. Rev. 1263, 1314-15 (1991) (pointing out that product-category
law is not currently governing law in any jurisdiction).
The evidence presented in this case demonstrates why the analysis should focus on the specific product before the court. First, as various experts testified, two types of asbestos, with different physical characteristics and different dangers, exist. The generic term "asbestos" does not describe just one material; it can refer to chrysotile or to amphibole. No one disputed at trial that the long, straight, difficult-to-dissolve amphibole fibers can migrate to the pleura and cause mesothelioma. The parties presented conflicting evidence, however, about whether the serpentine-shaped, easy-to-break-down chrysotile fibers can cause the disease. Second, the term "asbestos-containing products" describes a variety of materials with differing amounts of asbestos and different built-in safeguards. For example, in this case, plaintiff did not allege that he had been exposed to bags of raw fiber; rather, he alleged that he had been exposed to dust from brake parts, which contained only approximately fifty-percent fibrous chrysotile when new, more than ninety-nine percent of which may have become non-fibrous during the braking process. The experts appeared to agree that a person exposed to raw chrysotile fiber may have an increased risk of contracting mesothelioma, but they hotly disputed whether brake dust could
cause the disease. Accordingly, a ruling that all asbestos
products are the same appears to confound reality.
Our courts have acknowledged that asbestos-containing products are not uniformly dangerous and thus that courts should not treat them all alike. For example, in Sholtis v. American Cyanamid Co., 238 N.J. Super. 8 (App. Div. 1989), the court had to determine whether to apply market-share liability in a case in which plaintiff had been exposed to various asbestos products during a four-decade career at American Cyanamid "first as mill operator, then as maintenance laborer, pipefitter's helper, junior mechanic and finally as an area mechanic." Id. at 14. Market-share liability is defined as follows: "Where multiple defendants have all produced the same or similar products, but plaintiff has been exposed to but one or some of them, and through circumstances beyond plaintiff's control, it cannot be determined which manufacturer supplied the product that injured plaintiff, liability may still be found * * * ." Id. at 22 (emphasis added). The court declined to apply such liability, however, stating that "[t]he nature of the asbestos products undoubtedly hampers the use of a market-share approximation of responsibility * * * ." Id. at 24. The court also acknowledged "the varying degrees of toxicity of different asbestos products." Ibid.; see also Shackil v. Lederle Labs., 116 N.J. 155, 168 (1989) (declining to adopt market-share liability in vaccine context and noting that most courts decline to apply market-share
liability in asbestos context because "'products containing
asbestos are not uniformly harmful -- many products contain
different degrees of asbestos'" (quoting Starling v. Seaboard
Coast Line R.R. Co.,
533 F. Supp. 183, 191 (S.D. Ga. 1982))).
The decisions of courts from other jurisdictions also support the view that because asbestos products are not uniformly harmful, courts should not treat those products as a monolithic group. See, e.g., Robertson v. Allied Signal, Inc., 914 F.2d 360, 379-80 (3d Cir. 1990) (declining to impose market-share liability in asbestos context for number of reasons, including that "'different manufacturers' asbestos products differ in degrees of harmfulness'" (quoting Vigiolto v. Johns-Manville Corp., 643 F. Supp. 1454, 1464 (W.D. Pa. 1986))); Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1145 (5th Cir. 1985) ("[A]ll asbestos-containing products cannot be lumped together in determining their dangerousness."); University System of N.H. v. United States Gypsum Co., 756 F. Supp. 640, 656 (D.N.H. 1991) (agreeing with "[m]ost courts, [which] have refused to apply market-share liability in asbestos cases due to the 'non-fungibility' of asbestos"); Mullen v. Armstrong World Indus., 246 Cal. Rptr. 32, 36-37 (Ct. App. 1988) (declining to apply market-share liability in asbestos context because asbestos products are not made from same formula, come in various forms, and carry different risks of harm); Celotex Corp. v. Copeland, 471 So.2d 533, 538 (Fla. 1985) ("Asbestos products * * * have widely
divergent toxicities, with some asbestos products presenting a
much greater risk of harm than others."); Goldman v. Johns-Manville Sales Corp.,
514 N.E.2d 691, 697 (Ohio 1987) (declining
to apply alternative or market-share liability in asbestos
context because "[a]sbestos-containing products do not create
similar risks of harm because there are several varieties of
asbestos fibers, and they are used in various quantities, even in
the same class of product").
Finally, we conclude that Beshada, supra,
90 N.J. 191,
should not have stood in the way of a jury deciding the disputed
issue of the dangers of the asbestos involved in this case. The
Appellate Division determined that because of Feldman's
limitation of Beshada to "the circumstances giving rise to its
holding," 97 N.J. at 455, Beshada's statement that the asbestos
products in that case "were not reasonably safe because they did
not have a warning," 90 N.J. at 209, renders all asbestos
products without warnings defective as a matter of law. That
conclusion represents a much too broad reading of the Beshada
opinion.
Beshada involved six consolidated strict-liability, failure-to-warn cases against manufacturers and distributors of asbestos products. Id. at 196. The suits involved the following asbestos-containing articles: unspecified "asbestos, asbestos products or asbestos materials" used by employees of Jersey
Central Power and Light Company, id. at 197-98; insulation
products used by pipefitters; unspecified products used by
employees of Research Cottrell, Inc.; finished asbestos products
used by an electrician; and other insulation products. Id. at
198. The Court framed the issue as follows: "The sole question
here is whether defendants in a product liability case based on
strict liability for failure to warn may raise a 'state of the
art' defense." Id. at 196.
The Court held that use of the state-of-the-art defense in
failure-to-warn cases was impermissible. See id. at 204 n.6
(summarizing opinion's holding by stating that "[w]e hold in this
case that a state-of-the-art defense should not be allowed in
failure to warn cases"). The Court reasoned that precluding the
use of the state-of-the-art defense would prevent the infusion of
negligence principles into strict liability, id. at 204, and
would promote a number of policy concerns, id. at 205-08. Thus,
the Court concluded as follows:
Failure to warn of a risk which one could not
have known existed is not unreasonable
* * * . But this argument is based on
negligence principles. We are not saying
what defendants should have done. That is
negligence. We are saying that defendants'
products were not reasonably safe because
they did not have a warning. Without a
warning, users of the product were unaware of
its hazards and could not protect themselves
from injury.
Two years after Beshada, the Court was again confronted with
the state-of-the-art-defense issue in Feldman, supra,
97 N.J. 429. In that case, the question presented was whether "the
doctrine of strict products liability should apply to
prescription drugs." Id. at 434. After concluding that strict
liability could apply to manufacturers of prescription drugs, id.
at 441-49, the Court moved to the strict-liability analysis
itself. In that analysis, the Court addressed Beshada's holding
in respect of the state-of-the-art defense and concluded that
"[t]he rationale of Beshada is not applicable to this case. We
do not overrule Beshada, but restrict Beshada to the
circumstances giving rise to its holding." Id. at 455.
Accordingly, we concluded that the defendants should be permitted
to present state-of-the-art evidence.
The Appellate Division in this case determined, based on Feldman, that "the Beshada decision continues to be sound precedent in asbestos litigation." That determination is correct in respect of its state-of-the-art-defense holding. See Fischer, supra, 103 N.J. at 656 ("Under the holding of Beshada a defendant is precluded and a plaintiff is relieved, on the liability aspect of an asbestos, strict-liability, failure-to-warn case, from introducing evidence relating to a defendant's actual knowledge or the state of knowledge in the asbestos field at the time of distribution."). But this case is not about state-of-the-art evidence. Rather, we must determine whether the statement in
Beshada that "defendants' products were not reasonably safe
because they did not have a warning," 90 N.J. at 209, has any
binding effect for other cases involving asbestos-containing
products the hazards of which are genuinely disputed.
Significant for today's purposes is the procedural posture
of Beshada when it reached this Court, namely, on interlocutory
appeal by the plaintiffs from the trial court's denial of the
defendant's motions to strike the state-of-the-art defense.
Neither the briefs in that case, which we have examined, nor this
Court's opinion anywhere suggest that at that stage of the
proceedings any party had raised any issue concerning the
dangerous nature of the defendants' products or had questioned
that exposure to those products could cause asbestosis or
mesothelioma, the diseases that the Beshada plaintiffs had
allegedly contracted. The parties' arguments and the Court's
discussion were directed solely to the issue of "whether the
medical community's presumed unawareness of the dangers of
asbestos is a defense to plaintiffs' claims." Id. at 197.
Hence, in Beshada, the Court was not confronted with conflicting
proofs, or even assertions, that the asbestos products there
involved were not in fact dangerous or that without a warning
the risks of those asbestos products outweighed their utility.
In this case, however, informed by a voluminous trial record, we are faced with a hotly-contested threshold factual
issue, namely, whether the brake products that defendant used are
dangerous. Accordingly, the jury should have determined that
issue before the court moved to the risk-utility standard.
Beshada, which was based on different facts, does not require a
contrary result.
We are aware that the federal district court for the
District of New Jersey has concluded that Beshada requires courts
to find that asbestos products without warnings are defective as
a matter of law. In Campolongo, supra,
681 F. Supp. 261, in the
context of a suit for damages for exposure to an array of
asbestos products that allegedly caused the plaintiff, an
insulation contractor, to contract mesothelioma, that court
concluded:
Since New Jersey chooses to treat asbestos
cases differently [from] other product
liability cases, it does not require a
quantum leap for this court to suggest that,
as a matter of law and policy, an asbestos-related product without a warning is a
defective product. We have moved beyond the
risk-utility analysis and past concern of
whether the benefit outweighs the risk.
Although we often look to the decisions of federal courts for guidance, we are not bound by their decisions in respect of our own state law. They are bound by ours. See Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 113 (3d Cir. 1992) (stating that in reaching decision under state law, "Absent clear guidance from
the [state] Supreme Court, [a federal court] must predict how it
would decide the issues * * * "), cert. denied, ___ U.S. ___,
113 S. Ct. 1645,
123 L. Ed.2d 267 (1993); see also West v. American
Tel. & Tel. Co.,
311 U.S. 223, 236-37,
61 S. Ct. 179, 183,
85 L.
Ed. 139, 144 (1940). Regarding the issue in this case, the
district court merely anticipated incorrectly this Court's ruling
in respect of whether all asbestos-containing products are
presumed to be dangerous and therefore defective as a matter of
law if not provided with warnings.
In light of the distinction between this case and Beshada,
the question that may fairly be posed is whether an asbestos
product that is dangerous is defective as a matter of law if it
does not provide a warning. We acknowledge that if "there is a
fact question whether the risks outweigh the utility of a
product, then the matter is for the trier of fact." O'Brien,
supra, 94 N.J. at 186. However, we recognized in the same
decision that "[i]f the minds of reasonable men could not differ
on whether the risks posed by a product outweigh its utility, or
vice versa, then the court could make the appropriate
determination as a matter of law." Ibid.
We believe that products-liability-case defendants will rarely, if ever, be able to produce any evidence demonstrating that a dangerous asbestos product marketed without a warning of its hazards or the need for precaution to overcome the risks
attendant on its use is not defective. Reasonable people would
not likely differ on whether such a warning, one that could
improve the safety of the product without impairing or destroying
its usefulness, is required. In cases "of a design defect
consisting of an inadequate warning, * * * imposing the
requirements of a proper warning will seldom detract from the
utility of the product." Freund, supra, 87 N.J. at 238 n.1. As
applied to an asbestos product shown to be dangerous, the
observation in Campolongo is well taken:
Experience demonstrates that an asbestos-related product is unsafe because a warning
could have made it safer at virtually no
added cost and without limiting its utility.
Indisputably, a warning would have lessened
exposure and avoided countless injuries.
[681 F. Supp. at 264.]
If, in this case, the friction products containing asbestos are
found to be dangerous and the evidence does not indicate that a
warning would render the products useless or worthless, the trial
court could properly find the asbestos products defective as a
matter of law. Of course, such a determination would not itself
encompass the issue of proximate cause or obviate the need for a
determination by the jury of whether the failure-to-warn defect
constituted a proximate cause of plaintiff's fatal mesothelioma.
See Coffman v. Keene Corp., supra,
133 N.J. at 594.
Accordingly, we are satisfied that the Appellate Division's determination, which approved the trial court's charge to the
jury, that all asbestos-containing products without warnings are
defective as a matter of law was error. That error deprived the
jury of the opportunity to determine whether the asbestos product
was in fact dangerous, and rendered premature and unfounded the
court's application of the risk-utility analysis and its
conclusion that without a warning the asbestos product was
defective as a matter of law. Inasmuch as the parties presented
conflicting evidence on the issue of dangerousness and did not
have the opportunity to introduce or develop any evidence bearing
on, or to argue, whether the failure to warn can raise a genuine
dispute over the defectiveness of such a product, the case must
go back for retrial.
Judgment reversed. The cause is remanded to the Law
Division for retrial, costs to abide the event.
Justices Handler, Pollock, Garibaldi, and Stein join in this opinion. Chief Justice Wilentz and Justice O'Hern did not participate.
NO. 55/196-93 SEPTEMBER TERM 1993
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
EDITH BECKER, etc.,
Plaintiff-Respondent,
v.
BARON BROTHERS, et al.,
Defendants,
and
GENERAL MOTORS CORPORATION, etc., et al.,
Defendants-Appellants.
DECIDED November 15, 1994
Justice Clifford PRESIDING
OPINION BY Justice Clifford
CONCURRING OPINION BY
DISSENTING OPINION BY