SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2885-94T2
A-2886-94T2
CHARLES KURAK and
PRISCILLA KURAK, his wife,
Plaintiffs-Respondents,
v.
A.P. GREEN REFACTORIES COMPANY,
ARMSTRONG WORLD INDUSTRIES,INC.,
THE ANCHOR PACKING COMPANY,
BABCOCK & WILCOX COMPANY,
CALON INSULATION CORPORATION,
COMBUSTION ENGINEERING, COOPER
INDUSTRIES, INC., EASTERN STEAM
SPECIALTIES, F.M. ROJEK, INC.,
FLEXITALLIC, INC., FOSTER WHEELER
CORPORATION, FRICK COMPANY,
GAF CORPORATION, GARLOCK, INC.,
INGERSOLL RAND CO., KAISER
ALUMINUM & CHEMICAL CORP.,
KEENE CORPORATION, MADSEN
& HOWELL, INC., NORRIS
INSULATION, INC., PITTSBURGH
CORNING CORPORATION, PORTER
HAYDEN COMPANY, ROBERT A. KEASBEY
COMPANY, ROCKWOOL MANUFACTURING CO.,
ROOTS CONNERSVILLE, STATE INSULATION
CORPORATION, TURNER & NEWALL, P.L.C.,
U.S. GYPSUM CO., WORTHINGTON
CORPORATION, and YORK INDUSTRIES, INC.,
Defendants,
and
OWENS-CORNING FIBERGLAS CORPORATION and
OWENS-ILLINOIS, INC.,
Defendants-Appellants.
Argued January 7, 1997 - Decided March 3, 1997
Before Judges Michels, Kleiner, and Coburn.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County.
Perry A. Gandelman argued the cause for
appellant Owens-Corning Fiberglas Corporation
(Tucker, Biegel & Goldstein, attorneys;
Frederick E. Blakelock, on the brief).
Thomas W. Ladd argued the cause for appellant
Owens-Illinois, Inc. (McCarter & English,
attorneys; Andrew T. Berry and John C. Garde,
of counsel; Mr. Ladd, Mr. Garde and Cynthia C.
Beagles, on the brief).
Patrick J. Bartels argued the cause for
respondents (Garruto Cantor Trial Lawyers,
attorneys: Jane B. Cantor and Mr. Bartels, of
counsel; Mr. Bartels, on the brief).
The opinion of the court was delivered by
COBURN, J.S.C. (temporarily assigned).
In separate appeals, which we have consolidated, defendants
Owens-Corning Fiberglas Corporation (OCF) and Owens-Illinois, Inc.
(OI) seek reversal of Law Division judgments, following a trial by
jury, awarding plaintiffs Charles Kurak (plaintiff) and his wife,
Priscilla Kurak, damages in this personal injury, products
liability action.
The jury determined that plaintiff had contracted
mesothelioma, a cancer of the lining of the lung which can only be
caused by asbestos, as a result of exposure over forty-four years
to asbestos-containing products in his workplace at E.R. Squibb and
Sons, Inc. (Squibb). The jury assessed responsibility against
defendants (including other named defendants who did not
participate in the trial) in the following proportions: OCF (25");
OI (20"); Calon Insulation Corporation (15"); GAF Corporation
(15"); Porter Hayden Company (10"); Robert A. Keasbey Company (7");
State Insulation Corporation (8"); and 0" as to Anchor Packing
Company, Combustion Engineering, Garlock, Inc., Ingersoll Rand Co.,
Madsen & Howell, Inc., and U.S. Gypsum Co.
The jury determined plaintiff's total damages to be $1,500,000
and his wife's to be $800,000. The trial court molded the verdict
to reflect judgments, with interest as of December 16, 1994, as
follows: for plaintiff against OCF, $413,758.54, and against OI,
$331,066.83; for plaintiff's wife on her derivative claims against
OCF, $220,671.21, and against OI, $176,536.97.
The primary contention of both defendants is that the trial
court erred in failing to grant their motions for directed verdicts
and judgments notwithstanding the verdicts. Alternatively, they
contend the court should have granted their motions for a new
trial. Their appeals primarily focus upon claims of lack of
product identification respecting the issue of proximate cause. In
other words, each defendant contends that plaintiff failed to prove
sufficient exposure to its asbestos-containing product to warrant
a finding that its product was a medical cause of plaintiff's
mesothelioma. They also contend the trial court committed errors
relating solely to the issue of damages which resulted in inflated
and excessive monetary awards. We agree that there was
insufficient evidence against defendant Owens-Illinois, Inc., and
that it was entitled to judgment. The jury's finding of liability
as to Owens-Corning Fiberglas Corporation, on the other hand, was
supported by the evidence. However, the trial court committed
reversible error on an issue relating to damages. Consequently,
for the reasons stated in section IV, infra, plaintiffs will have
to decide whether to have a new trial on damages with OCF's
percentage of fault set at the twenty-five percent adjudicated in
this trial, or a new trial on liability and damages.
Plaintiff began working for Squibb in 1944 when he was eighteen years old. After forty-four years as a laboratory technician at the Squibb plant in New Brunswick, New Jersey, he retired in 1988 at age sixty-two. Four years later, his physician told him he had contracted mesothelioma, an invariably fatal disease. The parties stipulated that the average life expectancy for a person who has been diagnosed with mesothelioma is six months to two years, although some people have lived as long as eight years.
When plaintiff began working for Squibb at its ninety-six acre New Brunswick site, the plant consisted of about thirty buildings. At his retirement, there were around thirty to forty buildings. During the forty-four years, some buildings were razed to be replaced by new installations.
Plaintiff's work primarily took place in various buildings over the years in laboratory rooms which were about forty feet long and fifteen to twenty feet wide. He first worked in building 80-84 for about eleven years from 1944 until about 1955. Then he spent about seven years in building 70. Around 1962 he moved to building 54; and around 1966 he moved to a new building, number 102, where he stayed until around 1972. From then until his retirement in
1988, he was assigned to the environmental control department,
working first for a month in building 78 and then primarily out of
building 101, the "Institute", for about three years, and then out
of building 92, a new building. As part of this last job, he would
regularly, mostly on a monthly basis, enter and work in buildings
89, 90, 91, 105, 107, and 109. He would occasionally spend time in
buildings 62, 82, 83, 85, 124. In summary, he spent substantial
periods of time working in buildings 80-84 (eleven years), 70
(seven years), 54 (four years), 102 (six years), 78 (one month),
101 (three years) and 92 (thirteen years).
According to plaintiff, all the buildings in which he worked
were warmed by forced air heaters which were fed steam from
visible, insulated pipes. The insulation was "whitish-gray." It
was almost uniformly "deteriorating, cracking, crumbling, peeling
and flaking" in every room in which he worked. Generally, he
worked for substantial periods of time within six to twenty feet of
the "hot" pipes and the fans which circulated the hot air. He
frequently observed dust on the pipes and noticed that the fans
blew that dust out into the workplace. When he worked in building
78 for a month in 1972 with a machine known as an "autoclave," a
device for "sterilizing media . . . or contaminated glassware or
equipment," which was about four feet by six feet, he noted that it
was covered with whitish-gray insulation which would dislodge when
he brushed against it. He described the pipes in buildings 89,
90, and 91 as "covered with dust." In the early 1950's, sometime
before 1953, he saw pipefitters working in building 80-84. Their
work caused "whitish gray" debris, an insulating material not
specifically described as containing asbestos, to fall all around
the plaintiff for about a minute until he walked away. That is the
only occasion on which plaintiff said he was covered with a dusty
material which might have been asbestos.
According to plaintiff's expert witnesses, whose testimony was
uncontradicted, plaintiff contracted mesothelioma as a result of
his exposure to asbestos during his forty-four year employment at
Squibb. They also indicated that unlike asbestosis or cancer of
the lung caused by asbestos, mesothelioma, a cancer of the lining
of the lung, can be caused by relatively small exposures to
asbestos, but that all exposures to asbestos contributed to the
disease process. This brings us to the testimony bearing upon
the critical liability issue. For even assuming asbestos caused
plaintiff's fatal illness, a point no longer at issue in this case,
to recover damages he must still prove the source of that asbestos
was the asbestos-containing product of a particular defendant. In
that regard, we must carefully consider the testimony in relation
to plaintiff's work history.
OI began manufacturing Kaylo, an asbestos-containing hot pipe
insulating cover, and asbestos block, sheets of insulating
material, in 1948. In 1953, OCF became the exclusive distributor
of these materials for OI. In 1958, OCF purchased the business
from OI and continued to use the brand name "Kaylo." In 1972, OCF
stopped manufacturing these materials.
On the issue of product identification plaintiff relied
primarily on the testimony of four witnesses: Frank Abode (so
described at trial, but referred to by the parties in their briefs
as Frank Abate), Frank Montzi, John Horvath, and Michael Furchak.
Abode came to work at Squibb as a painter in 1945. From 1957
to 1981 he was the supervisor of the painting and insulation
department. According to him, about half the hot pipe insulation
used by his staff was Kaylo, at least after 1962. He also said one
of the painters' jobs was painting the asbestos-containing block
and pipecovering. Other witnesses indicated that Squibb had a crew
of about eight insulators whose primary job was the installation
and repair of insulating material on a daily basis. However,
major insulation jobs were performed by outside contractors.
Montzi worked as an insulator at Squibb from 1969 to 1988.
When he started at Squibb, he "mostly used" Kaylo tubes for hot
pipes, he worked all over the plant doing "quite a bit" of pipe
insulation repair, and he put Kaylo in buildings 70, 80-84, 90, 92,
105, 107, 109, and in "a lot of buildings." Although Kaylo is pink
in color, he said that once it was cut it "would make a lot of
white dust." (Plaintiff worked his last thirteen years in building
92 and would visit, among others, buildings 105, 107, and 109
during that time on a monthly basis.)
Horvath worked at Squibb as an insulator from 1962 to 1985.
He said he worked on pipe and block insulation "throughout the
whole plant." He did not indicate what percentage was Kaylo,
though he did say it was used.
Furchak was the President of Caylon Insulation Company. He
started the business in 1964 and went out of business in 1986. He
supplied Squibb with insulation. OCF was his major supplier and
most of the pipe covering material he, in turn, supplied to Squibb
was Kaylo. However, he could not estimate how much he supplied
over the years. Nor was there any indication of the percentage of
Squibb's insulation business which came to his company.
There was considerable testimony with respect to Squibb's use
of asbestos pipe covering material and other asbestos-containing
products made by defendants other than OCF and OI. Indeed, there
was evidence from defendants indicating that up until the 1960's
most of the asbestos-containing materials used at Squibb came from
Johns-Manville and other companies.
Plaintiff contends that the above evidence shows that fifty percent of the pipe covering in the buildings comprising the plant was Kaylo. However, at best, the evidence shows that substantial amounts of asbestos-containing Kaylo were present throughout the facilities sometime after 1958. While the Squibb insulators may have been using Kaylo fifty percent of the time, much of the insulation work was also done by the outside contractors, only some of which used Kaylo. Nonetheless, plaintiff has shown that he was probably exposed to Kaylo in relatively close quarters for a number of years, particularly while working steadily in building 92 (for his last thirteen years) where Montzi said he installed it, as well as on a monthly basis during those last thirteen years in buildings
90, 105, 107, and 109, where Montzi also recalled installing this
product. That exposure must be considered in relation to the
uncontradicted medical testimony indicating that far less exposure
to asbestos can cause mesothelioma than is required for other
asbestos related diseases and that cumulative exposures increase
the probability that a person will develop this fatal cancer.
Defendants contend the trial court improperly denied their
motions for directed verdicts and for judgments notwithstanding the
jury's verdict. Although according to them, plaintiff failed to
prove that either of their products was a proximate cause of
plaintiff's mesothelioma, they are not contending in this appeal
that the disease was not caused by exposure to asbestos in the
Squibb plant. Rather, the contention is that plaintiff failed to
prove proximate cause in the sense that as to each defendant there
was insufficient evidence its product was a substantial factor in
causing or exacerbating the disease.
The leading case in New Jersey on this aspect of causation is
Sholtis v. American Cyanamid Co.,
238 N.J. Super. 8 (App. Div.
1989). The court held that to prevail against a particular
defendant in an asbestos case, the plaintiff must provide
sufficient direct or circumstantial evidence from which a
reasonable jury could infer that "sometime during [his] work
histor[y] . . . [he] was exposed to a defendant's friable asbestos
frequently and on a regular basis, while [he] was in close
proximity to it (balancing these factors) . . ." Id. at 31. In
addition, of course, there must be "competent evidence, usually
supplied by expert proof, establish[ing] a nexus between the
exposure and plaintiff's condition . . ." Ibid. This is the so-called "frequency, regularity and proximity test" adopted by most
courts confronted with this issue. Id. at 28-29. Under this test,
plaintiff cannot rest on evidence which merely demonstrates that a
defendant's asbestos product was present in the workplace or that
he had "casual or minimal exposure" to it. Goss v. American
Cyanamid Co.,
278 N.J. Super. 227, 236 (App. Div. 1994).
In adopting for New Jersey the "frequency, regularity and
proximity test" for medical proximate cause in asbestos cases, the
Sholtis court was careful to point out the distinction between
causation and allocation of fault among numerous defendants whose
product may have contributed in varying degrees to the resulting
disease. In that case, ninety percent of the asbestos delivered to
the plant where plaintiffs worked was manufactured by Johns-Manville which was then not subject to suit due to bankruptcy. Id.
at 20 n.7. The court said:
Plaintiffs have been exposed to multiple
products over a long period of time, but one
manufacturer, Johns-Manville, apparently has
been responsible for the vast majority of the
exposures. In such a case, can the exposure
to products constituting but five to ten
percent of the friable asbestos at American
Cyanamid be considered a proximate cause of
Sholtis' death and Lee's injuries? At the
outset, we state that for a defendant to be
held liable, the exposure to the products of
such defendant, whether proven directly or
circumstantially, or if reconstructed or even
risk-weighted, must have been a proximate
cause of, i.e., a substantial factor in
bringing about, plaintiffs' injuries. If the
potentially culpable Wellington defendants
(apart from Porter Hayden) were each
responsible for a fractional share of the
remaining five to ten percent, a jury might
have a hard time finding that their products
were substantial factors contributing to
plaintiffs' asbestosis. Additionally, there
have been several other settling defendants
whose products would be required to be
similarly analyzed on a proximate cause basis,
thus reducing the Wellington defendants'
percentages possibly to fractions of one
percent. Young v. Latta,
233 N.J. Super. 520,
523,
559 A.2d 465 (App.Div. 1989).
Yet should the small percentage involved
bar a plaintiff's claim as a matter of law?
We know that a five percent finding will
sustain liability. Stephenson v. R.A. Jones &
Co., Inc.,
103 N.J. 194, 198-199,
510 A.2d 1161 (1986). A plaintiff has a right to a
full, not a ninety to ninety-five percent
recovery; and even a ninety to ninety-five
percent responsible party has a right to
contribution under the Joint Tortfeasors
Contribution Law, N.J.S.A. 2A:53A-1 et seq.,
and the Comparative Negligence Act, N.J.S.A.
2A:15-5.3. The fact that there may be several
parties dividing this five to ten percent
responsibility should not dilute the rights of
a plaintiff or principal defendant.
The court further concluded that defendants should be jointly and
severally liable unless they "could better apportion their
responsibility." Id. at 27-28.
The issue of product identification has often troubled courts.
To place plaintiff's case in proper perspective we review a
representative sampling of the reported decisions, beginning with
cases in which the plaintiff was unsuccessful.
In Lohrmann v. Pittsburgh Corning Corp.,
782 F.2d 1156 (4th
Cir. 1986), an asbestosis case, the court held that summary
judgment was properly granted as to defendant Raymark because the
only evidence was four invoices indicating purchases of Raymark asbestos cloth by plaintiff's employer and there was no evidence showing when or where those products were used. Id. at 1163. Summary judgment was also held to have been properly granted to defendant Pittsburgh Corning Corporation because plaintiff only testified that "he was exposed to an asbestos-containing pipe covering [made by Pittsburgh] on ten to fifteen occasions of between one and eight hours duration during the term of his employment. * * * [That] exposure to [the pipe covering] was not sufficient to raise a permissible inference that such exposure was a substantial factor in the development of his asbestosis." Ibid. In Menne v. Celotex Corp., 861 F.2d 1453 (10th Cir. 1988), the plaintiff, a shipyard pipefitter, proved that for about four and one-half years while working in ships he was exposed to asbestos due to his particularly close proximity to insulators who were installing asbestos products and generating asbestos dust on docked ships. Thereafter, for the next thirty years he worked in private industry where he had various exposures to the asbestos products of multiple manufacturers. At age sixty-six, he came down with mesothelioma. Numerous manufacturers of asbestos products were joined as defendants in the suit. Two major contributors of asbestos products to plaintiff's work sites were not defendants. The jury found four asbestos product manufacturers liable. Plaintiff could not identify any particular asbestos products to which he was exposed during his time at the shipyard. However, his key witness was able to identify ten different manufacturers whose
products were used at the shipyard during the years in question.
According to this witness, he used appellants asbestos products on
every ship on which he worked. There was, however, no evidence
that he worked on the same ships as plaintiff. The court said:
The testimony was insufficient to establish
the likelihood of frequent or sustained
exposure to asbestos dust from the products of
each appellant, and a jury finding of some
Shipyard exposure from each's products is not
enough. From the circumstantial evidence,
there is no way of ascertaining the regularity
or frequency of Menne's exposure to visible
asbestos dust from a given defendant's
products. Such exposure might have been
frequent or sustained, or it might have been
sporadic and short. On this matter the jury
could only speculate.
See also, Robertson v. Allied Signal, Inc.,
914 F.2d 360 (3rd Cir.
1990).
In the following cases, the plaintiff's claims were upheld.
In Goss v. American Cyanamid, Co., supra, the court found that
the following proofs sufficiently established defendant Porter-Hayden as the supplier of asbestos-containing products which
injured plaintiffs:
Goss and Patullo worked in the presence of
asbestos dust while employed as departmental
mechanics at American Cyanamid. As previously
mentioned, Goss spent approximately thirty
percent of his work time either applying or
removing asbestos insulation. He also
repaired boilers which were covered with
asbestos-containing insulation after which he
would be completely covered with white dust.
Patullo inhaled dust which was released when
the asbestos-containing insulation materials
were cut. Goss and Patullo also were exposed
to asbestos indirectly while their co-workers
installed the asbestos-containing insulation.
In our view, this evidence demonstrated that
Goss and Patullo were sufficiently exposed to
the asbestos-containing products.
The evidence also demonstrated
specifically that Goss and Patullo were
exposed to asbestos-containing products that
Porter Hayden installed or distributed.
According to Goss, most of the asbestos pipe
covering that he used was manufactured by
Johns-Manville, and he also used corrugated
asbestos sheeting manufactured by Johns-Manville once or twice per year. Patullo also
installed and removed asbestos-containing pipe
covering manufactured by Johns-Manville.
Additionally, as previously mentioned, Brandt,
one of Goss' and Patullo's co-workers,
testified that he used Johns-Manville pipe
covering approximately ninety-percent of the
time and installed insulation in areas where
Goss and Patullo regularly worked. Brandt
also recalled that Porter Hayden delivered all
the asbestos materials to American Cyanamid.
Porter Hayden acted as an ICU for Johns-Manville from 1927 until the 1960's. During
that time, Porter Hayden serviced American
Cyanamid as one of its accounts. Porter
Hayden's vice-president and one of its
managers testified that Porter Hayden supplied
Johns-Manville asbestos-containing products to
American Cyanamid. Porter Hayden also
admitted to this in its answer to
interrogatories, which were read to the jury
at trial. Even one of Porter Hayden's
competitors, Charles S. Woods Company, was
required to purchase Johns-Manville materials
through Porter Hayden when using those
materials at American Cyanamid.
In Dafler v. Raymark Industries, Inc., 259 N.J. Super. 17 (App. Div. 1992), aff'd, 132 N.J. 96 (1993), the evidence with respect to product identification showed that plaintiff, a shipfitter, had worked for six years during World War II on twelve to thirteen ships at New York Shipyard in Camden, New Jersey. He spent seventy percent of this time in engine and boiler rooms in
very close proximity to pipefitters and pipe coverers who used
asbestos-containing products. They "worked continuously, cutting
and cementing pipes." Id. at 23. Their use of asbestos made the
air "very dusty." Ibid. He could not personally identify any of
the asbestos manufacturers. One witness was called on product
identification and nexus. He worked in the Shipyard from 1942 to
1944 as a mechanic's helper, putting ventilation systems in boiler
rooms and engine rooms of the ships. He worked right next to the
shipfitters. He spent ninety percent of his time on the ships and
worked on seven ships in common with plaintiff, whom he did not
know. About 500 people worked on a ship at the same time. He said
the pipefitters' use of asbestos products "created dust to the
extent that 'it seemed like a snow storm.'" The air was very dusty
with "'various dust and fibers all over our clothes and in our
hair.'" On the specific issue of product identification, he said
the pipefitters used brands, which he named, of four asbestos
manufacturers. He saw these brands daily. He did not estimate the
percentage use of each brand, but he saw "more" of the cross-appealing defendant's brand of pipe covering than that made by the
other major product contributor. Id. at 24. The jury found the
cross-appealing defendant 95 percent responsible for plaintiff's
lung cancer and asbestosis. Id. at 21. The court said:
On the cross-appeal, we conclude that
there was sufficient evidence to create a jury
question on Keene's liability. There was also
sufficient proof before the jury to allow the
inferences of 'frequency, regularity and
proximity' of exposure expressed in Sholtis v.
American Cyanamid Co.,
238 N.J. Super. 8,
568 A.2d 1196 (App. Div. 1989). See Rotondo v.
Keene Corp.,
956 F.2d 436, 441 (3rd Cir. 1992,
where the Circuit Court, under similar
circumstances, affirmed a verdict for the
plaintiff who worked on the Monticello at the
Philadelphia Naval Shipyard for several months
when pipecoverers, in close quarters, used
Ehret products about "50" of the time."
A more detailed recitation of the facts of Rotondo v. Keene
Corp.,
956 F.2d 436 (3rd Cir. 1992) is useful here. The court
said:
[O]ver an 18-month period . . . Rotondo
worked for six months as a tacker and for the
remainder as a welder at the Philadelphia
Naval Ship Yard. * * * [H]e worked on the
Monticello for * * * at least 3 to 4 months, a
minimum of 2 days per week in the ship's
boiler room, working 6 to 8 feet away from the
pipecoverers who placed asbestos covering on
the pipes. The coverers would saw sections of
the covering, causing dust to be released into
the air.
The court then noted that another employee who worked in the
Monticello while plaintiff was there had the job of lowering boxes
of asbestos material into the engine and boiler rooms. He saw "two
different names on the boxes he unloaded, Unibestos and Ehret, and
he saw them with the same frequency. Moreover, [he] saw
pipecoverers using Ehret sections on a regular basis and testified
that during the periods when the pipecoverers worked with the Ehret
covering the atmosphere was 'like a nice little snow storm.'" Id.
at 439. Defendant Keene was the provider of the Ehret asbestos
piping. Plaintiff contracted mesothelioma from the asbestos. His
physician testified that "mesothelioma, unlike other asbestos-related diseases is not dose-dependent, apparently because
mesothelioma can result from 'relatively insignificant exposure' to
asbestos." Id. at 439. The court concluded:
In summary, the testimony introduced in
the instant case did not merely place Ehret
pipecovering "somewhere" in a large facility,
but rather placed it in the specific area
(i.e., the boiler room) in which Rotondo
worked. In addition, the evidence established
that Rotondo worked in the boiler room of the
Monticello at least 2 days a week for at least
3 to 4 months during the summer of 1942, and
that the pipecoverers used the Ehret product
fifty percent of the time. Even if Rotondo
was not exposed to Ehret covering during most
of the period that he worked in the boiler
room, Dr. DuPont testified that mesothelioma
is not dose-dependent and that relatively
small amounts of asbestos can cause this
condition.
Nor do we agree with Keene that plaintiff
presented insufficient evidence from a jury
could infer that Rotondo had inhaled asbestos
from Ehret covering. Souels testified that it
would not be possible for people working
around pipecoverers not to breath the dust.
Rotondo testified that the boiler room was
unventilated, and that his clothes were
covered with dust when he worked in the boiler
room. Thus, although Dr. DuPont agreed with
defendant that only air sampling would
positively detect asbestos dust, a jury could
properly infer that when covering containing
asbestos is sawed and releases dust, that dust
contains asbestos. We conclude that plaintiff
has presented enough evidence to survive
Keene's j.n.o.v. motion, that the trial court
did not err in denying Keene's motions for a
directed verdict or j.n.o.v., and that it did
not abuse its discretion in denying Keene's
motion for a new trial.
In Slaughter v. Southern Talc Co., 949 F.2d 167 (5th Cir. 1991), seventeen plaintiffs contended they contracted asbestos
related diseases while working in their factory at General Tire and
Rubber Company. The suit named thirteen producers and users of
asbestos containing products. Defendant Owens-Corning Fiberglas
obtained summary judgment and plaintiffs appealed. The evidence
indicated that OCF's Kaylo was delivered to the General Tire Plant
from 1960 to 1973 and installed there from 1960 through 1983. The
plant building covered about forty-nine acres. Pipefitters and
insulators removed deteriorating pipe insulation daily and block
insulation weekly throughout the plant. The piping was described
as voluminous. Much of the piping was always in "'disarray.'" Id.
at 170. Plaintiffs worked near the pipes and found themselves
covered on a regular basis with insulation dust whenever the pipes
were worked on. Witnesses testified that OCF's Kaylo and block
insulation was delivered to the plant and was installed on pipes
and other equipment all over the plant from around 1962 until, at
least inferably, 1973 when OCF ceased manufacturing asbestos
products. Although thirteen asbestos product manufacturer's were
sued, the opinion is silent with respect to the presence of their
materials in the plant.
The Slaughter court described the question of whether there
was sufficient evidence of proximate cause as "close." Id. at 171.
However, it was satisfied that the testimony that Kaylo was all
over pipes throughout the plant indicated "a high probability that
anyone working near pipes also worked near Kaylo." Id. at 172. The
court said:
The essence of plaintiffs' proofs of
exposure . . . rests on the common sense idea
that, if defendants' products are likely to be
present at a specific location within the
workplace, plaintiffs are likely to have been
exposed to the products if they worked near
those specific locations, even without
explicit testimony that the plaintiff worked
near the specific product. This is an
intuitively plausible theory of exposure,
accepted repeatedly by this court and also by
other courts.
The case is close, and the evidence shown by
plaintiffs lies close to the minimum necessary
to support a verdict of actual exposure. We
cannot say, however, that no reasonable jury
could conclude that plaintiffs more probably
than not inhaled asbestos fibers from OCF's
products.
In Slaughter there was substantial evidence of asbestos dust
repeatedly falling on plaintiffs. That is absent in the subject
case. In Miller v. American President Lines, Ltd.,
989 F.2d 1450
(6th Cir. 1993), cert. denied,
510 U.S. 915,
114 S.Ct. 304, 126
L. Ed.2d 252 (1993), the court emphasized that the record was
"full of evidence concerning the presence of asbestos dust
throughout the ships" involved which often "blanketed" the crew.
See also, Jackson v. Anchor Packing Co.,
994 F.2d 1295, 1305 (8th
Cir. 1993). However, in Wehmeier v. UNR Industries, Inc.,
572 N.E.2d 320 (Ill.App. 1991), the court observed:
[T]he amount of evidence needed to establish
the regularity and frequency of exposure will
differ from case to case. For example, none
of the plaintiffs in this case was diagnosed
with mesothelioma, an asbestos-related disease
which is caused after only minor exposure to
asbestos dust.
The substantial factor test is not concerned
with the quantity of the injury-producing
agent or force but rather with its legal
significance. Where there is competent
evidence that one or a de minimus number of
asbestos fibers can cause injury, a jury may
conclude the fibers were a substantial factor
in causing a plaintiff's injury.
This case would have been easier had plaintiff been able to
testify that he often found himself covered with dust. But that is
not a legal requirement, at least where mesothelioma is concerned.
He certainly placed himself in close proximity in relatively small
rooms to asbestos-containing products, mostly pipe coverings, but
also block, which were friable in that they were deteriorating,
cracking, crumbling, flaking and peeling. He suffered that
exposure throughout his career. And for many years he was in rooms
which probably contained deteriorating and friable Kaylo in
substantial quantities. According to plaintiff, he generally
worked within six to twenty feet of heating pipes which were
usually laden with dust. Circulating fans blew that dust in his
direction. Defendants emphasize that plaintiff never said he saw
pink pipes or block, and Kaylo was uniformly described as pink; but
that does not undercut plaintiff's case since these materials were
always painted by Squibb employees, and, when it was cut or
disturbed, Kaylo yielded white dust.
Although there was sufficient evidence of exposure to
asbestos, there was not enough evidence to identify OI as a legally
responsible source. In an attempt to establish OI's liability
plaintiff and his expert witnesses emphasized an incident which
occurred in the early 1950's when white dust from pipes fell on him
while pipefitters were installing pipe coverings. But, there was
insufficient evidence to establish that the material was asbestos,
let alone whose product it was. After 1958, OI was no longer
involved with Kaylo. Furthermore, there is nothing to indicate,
even approximately, how much Kaylo may have been installed in any
building in which plaintiff worked prior to 1958. Plaintiff's
product identification witnesses simply did not provide testimony
on this score. Therefore, we hold the trial court erred in failing
to direct a verdict in OI's favor and in thereafter failing to
enter a judgment n.o.v. in OI's favor.
With regard to OCF, on the other hand, there was sufficient
evidence, particularly in light of the nature of mesothelioma and
the ease with which it can be contracted, to support the jury's
finding of responsibility. The plaintiff was exposed, or so the
jury could have found, to friable Kaylo manufactured by OCF for a
number of years in close proximity, with regularity, and frequency.
Since the liability of OCF was supported by substantial, credible
evidence, the trial court was correct in denying OCF's motions for
a directed verdict, a judgment n.o.v., and a new trial. Dolson v.
Anastasia,
55 N.J. 2, 5-6 (1969).
Defendants contend the trial court erred by including in the charge to the jury the "model" life expectancy charge because they say to do so was inconsistent with a stipulation agreed to by the parties respecting the plaintiff's shortened life expectancy
resulting from his fatal mesothelioma. Plaintiff argues that the
parties did not stipulate to plaintiff's life expectancy, but only
to the life expectancy of mesothelioma victims in general.
Plaintiff also contends that defendants did not object below on the
basis now argued on appeal, but for another invalid reason.
The stipulation developed in the following way. On November
17, 1993, the day before summations, and before both sides rested,
there was a discussion on the record with respect to the charge.
During this discussion, plaintiff's counsel brought up the subject:
MRS. CANTOR: Judge, there was a stipulation
entered into between counsel which I want to
put on the record and I want the jury to be
informed about it . . . . The stipulation
between counsel was an agreement entered
between myself and Mr. Ladd . . . on the phone
on Monday night before I decided whether to
bring Dr. Daum in or not and I said to Mr.
Ladd, if you'll agree that mesothelioma is a
fatal disease and there is no known cure for
this disease I will not bring Dr. Daum in and
he agreed and I did not bring my doctor in and
so that is the stipulation and I acted upon
that stipulation. I would like the jury to be
informed of it and I would like to be able to
argue it to the jury.
MR. LADD: Well, your Honor . . . when we were discussing the stipulation I was asked if I would stipulate to it being a disease where the typical life span is between six and 18 months and I said I couldn't stipulate to that because while I knew Dr. Daum would testify to that by the same token Dr. Daum -- if this man were four years out with mesothelioma he (sic) would testify that . . . this is still a mesothelioma and you have cases where it's four years out. I think to say to the jury that this is an . . . a fatal cancer with no known cure, misrepresents the testimony that we've had in this case and it suggests that
the Kuraks have been told that. They have not
been told that.
THE COURT: Haven't been told what? That it's
fatal . . .
MR. LADD: And that there is no known cure,
that this is a fatal cancer. * * * Their hope
is that they're going to beat their cancer and
that . . . chemotherapy is going to work . . .
. I think that allows the jury to speculate
then . . . [a]bout the length of time he's
going to be alive.
THE COURT: Well, you just asked me . . .
yesterday to tell them what his life
expectancy is. [Apparently this request was
made off the record.]
MRS. CANTOR: Exactly right.
THE COURT: And that's the time-frame they
want future pain and suffering and loss of
enjoyment of life to be included for this
jury.
MR. LADD: Okay, your Honor.
THE COURT: So I mean with those two aspects
of the case I don't know how we can't tell the
jury that mesothelioma is fatal and there's no
cure, without specifying how long somebody
might be expected to live. As you say there
were people who live four years.
The attorneys then took a break to work out the terms of the
stipulation. When they went back on the record, the following
appears:
THE COURT: Have you agreed to the stipulation
now?
MR. LADD: We have. * * * There are now two
parts of the stipulation. * * * The first was
written here your Honor and I guess we can
amend -- well we can talk about it at
the charge conference but that is the first
part of the stipulation -- this the second.
THE COURT: It is stipulated -- well is a fatal
disease, there is no known cure, the average
life expectancy for a person who has been
diagnosed with mesothelioma is six months to
two years although some people have lived as
long as eight years.
On the next day, November 18, 1993, a charge conference was
held on the record. Near the end of that conference, the following
discussion took place:
MR. LADD: * * * I . . . want to note for the
record my objection to any . . . charge
concerning future pain and suffering in this
case. There's been no evidence whatsoever
concerning future pain and suffering,
certainly been no medical testimony concerning
that. In addition, there's been no testimony
from the . . . plaintiff or his wife
concerning that category of damages, future
pain and suffering. * * * I believe that would
just be asking the jury to speculate on a
number.
The court rejected that position; and then defense counsel said:
MR. LADD: Lastly, I object to the use, again
of the . . . life expectancy table. I'm not
even sure from the charge how that is exactly
going to be used. I know your Honor looked at
the table and intends to read the charge. I
object to it because I am not sure what the
measure of damages is that we're talking about
concerning the life expectancy testimony.
We note that up to this point, despite plaintiff's counsel's
request that the stipulation be read to the jury, and the absence
of any objection to that request, the jury had still not heard it.
The next event was summation by counsel. Mr. Ladd made no
reference, directly or indirectly, to the stipulation. Mrs. Cantor
included in her summation the following remarks on the subject:
In this case we've had a stipulation. It
means that there's been agreement between the
parties that this must take as fact and
stipulation is this. Mesothelioma is a fatal
disease and there is no known cure. It is
further stipulated that the average life
expectancy for a person who has been diagnosed
with mesothelioma is six months to two years
although some people have lived as long as
eight years. That you must take as fact.
Now, the Judge is going to tell you that the
life expectancy of Charles Kurak if he were
healthy today is 15 point 20 years. The
Kuraks have told you, they are fighters. They
are doing everything they can to fight what is
going on. But they cannot fight the facts.
Whether Charles will be the one who outlives
the eight years and take it to his 15 point 20
years, I can't tell you but I can tell you
that this is what is known today and this is
agreed upon between counsel.
Defense counsel made no objection to the above comments. As noted,
the court included the model charge on life expectancy. However,
the only reference in the jury charge to the stipulation was this:
THE COURT: [A]nd another stipulation the
attorneys spoke to you about is that Mr. Kurak
has mesothelioma and they discussed that in
their life expectancy. When something is
stipulated then you can accept that, you don't
need any further proof about it.
Apart from rare instances with which we are not concerned in
this case, stipulations of fact are binding on the parties. See
Negrotti v. Negrotti,
98 N.J. 428 (1985), where the Court said:
Our decision should in no way be taken as
an invitation to litigants or trial courts to
sidestep the binding nature of factual
stipulations. Quite to the contrary, it is
important for attorneys to have confidence in
stipulations as a tool to avoid the expense,
trouble, and delay of coming forward with
proofs when certain otherwise-contestable
facts are admitted. The basic thought is that
generally litigants should be held to their
stipulations and the consequences thereof.
Stipulations should be construed with reference to their subject
matter and in light of the surrounding circumstances, employing the
rules applicable to the construction of contracts. Sheeran v.
Sitren,
168 N.J. Super. 402, 413 (Law Div. 1979). However, the
terms of a stipulation, if it is to be given effect, must be
"definite and certain and it is essential they be assented to by
the parties or those representing them." Schere v. Township of
Freehold,
150 N.J. Super. 404, 407 (App. Div. 1977).
The difficulty with the stipulation in question lies in its
ambiguity. Defendants contend that the reference to eight years
reflected an agreement that plaintiff could not or would not live
beyond eight years after his mesothelioma was diagnosed. But that
view of the language of the stipulation is not supported by its
express language. Indeed, the express language is to the contrary.
The stipulation, as stated on the record outside the presence of
the jury and as stated to the jury by plaintiff's counsel, without
objection, referred not to plaintiff but to "a person." With
respect to what defendant's counsel now views as the outer limit of
survival, it merely recited that "some people have lived as long as
eight years." That is not the same thing as saying that no one has
lived more than eight years. Furthermore, viewed in context, it
appears that the eight year period referred to was four more years
than plaintiff's doctor was going to state, had he been called.
Thus, it would appear that defendants were the ones who were
desirous of having an indication to the jury that plaintiff might
live substantially beyond the average of six months to two years
from diagnosis. We are inclined to infer that defendants may have
taken this position to avoid the emotional prejudice which might
have resulted from a stipulation which merely had the effect of
telling the jury that plaintiff would likely die within a very
short time after the trial.
Based on the principles of law cited above, and the
circumstances leading to the stipulation, as well as the wording of
the stipulation itself, we believe that defendants should not now
be permitted to contend that the stipulation meant something other
than what it said; and it said no more than that the average person
survives six months to two years from diagnosis and some people
have lived as long as eight years. It does not say that no one can
live beyond the eight year period.
In Budd v. Erie Lackawanna R.R. Co.,
98 N.J. Super. 47 (App.
Div. 1967), certif. denied,
51 N.J. 186 (1968), defendant objected
to the introduction of the life expectancy table's figure for the
average life span of a person of plaintiff's age on the ground that
plaintiff had previously suffered a heart attack which had reduced
his life expectancy. In rejecting that contention, the court said:
We are satisfied that the table was
properly received in evidence regardless of
what decedent's condition of health would have
been had medical care been furnished so that
he had survived the heart attack which
overcame him on the day in question. Under
our cases the use of such tables is not
limited to instances where the deceased enjoys
average or better health. In Camden and
Atlantic R.R. Co. v. Williams, supra, 61
N.J.L., at p 649, referring to the Carlisle
Table of Mortality (from which was derived the
table of mortality contained in former
Chancery Rule 184) it was held:
It [the table of mortality] was
legal evidence irrespective of the
condition of health of the deceased,
for it is not a table compiled from
statistics of selected lives only,
but of course such condition had to
be taken into account, and testimony
on that subject was in fact taken by
both parties. The table was not
admitted as controlling. The judge
said, 'We are not bound by it,' and
in his charge to the jury he very
clearly and correctly stated the
rules governing the estimate of
probable duration of life to be made
by a jury in awarding damages in
cases of injury resulting in death.
And in Auer v. Sinclair Refining Co.,
103 N.J.L. 372 (E & A 1927) it was held:
The general rule is that, while
the Carlisle table of mortality is
evidential, irrespective of the
condition of health of the person
whose expectancy of life is the
subject of the inquiry, yet that
condition of health must be taken
into account in determining the
probable duration of such person's
life. * * * (at p. 375)
It thus appears that when accompanied by
cautionary instructions, the table may be used
regardless of decedent's state of health.
We view Budd as properly rejecting the position taken by defendants here. The trial court clearly explained that the life expectancy figure was not controlling and that plaintiff might live for a shorter or longer period of time. The court also reminded the jury of the stipulation in language to which defendants did not object. Furthermore, as we have noted, the use of the life expectancy
charge was not inconsistent with the stipulation since it, too,
only referred to people in general and to the fact that some people
have survived as long as eight years, which is not the same thing
as stipulating that no one has lived beyond eight years or that
this plaintiff would not live beyond eight years.
Last, on this point, we note the utter failure of defense
counsel to object before the trial court on the basis suggested on
appeal. His objection below was that he was "not sure what the
measure of damages is that we're talking about concerning the life
expectancy testimony." That is not an objection stated in
understandable legal terms. He did not object on the ground that
giving the model charge on life expectancy would be inconsistent
with the stipulation. Consequently, putting to one side the
doctrine of plain error, he is not entitled to complain on appeal
with respect to the court's overruling of his objection. R. 1:7-2.
To the extent he would rely on the doctrine of plain error, R. 1:7-5, we note that we perceive no error for the reasons stated above,
and certainly no plain error.
Although the use of the life expectancy charge did not compromise the jury's function in assessing damages in the context of this case, the defendants rightly contend that the combination of a question posed by the jury during deliberations and the trial court's response substantially undermined the reliability of the monetary awards.
The problem arose because once this jury found OCF and OI
liable, it had the additional responsibility of determining whether
the eleven defendants who were not participating in the trial (as
a result of settlement or other cause) were also liable to
plaintiffs, and, if so, to what degree. As a matter of law, the
jury was, of course, obliged to apportion fault among the
defendants without reference to any effect the apportionment might
have on the dollars ultimately received by plaintiffs as a result
of the overall assessment of damages. Theobold v. Angelos,
40 N.J. 295 (1963). Unfortunately, from the jury's question, it appeared
that the jury wanted, in violation of its duty, to insure
plaintiffs received specific dollar amounts regardless of the
apportionment. As will be seen, the trial court failed to instruct
in a manner designed to avoid that result.
The only record of the jury's question is contained in the
trial court's responsive instruction:
[Will] the amount of damages awarded by the
jury be paid in full to the plaintiffs or will
they receive the percentages allotted to
Owens-Corning Fiberglas and Owens-Illinois?
If you allot percentages among the various
defendants, then they will receive the
percentage allotted to them. If the other
defendants don't have percentages allotted to
them, then the total amount of the damages
would be paid by however you divide up the
percentages of these two defendants.
Defense counsel immediately placed the following objection on the
record, which was overruled by the judge without expression of a
reason:
I wanted to place an objection on the record
with respect to the question that was raised
or answered by the Court that the jury raised
a little while ago. I think the response was
probably misled in terms of what percentages
they should allot. I think the answer to
their question should have been that the -
they are to award an amount that is --will
fairly and adequately compensate the plaintiff
without regard to the percentages that would
be allotted to a specific defendant. Sounds
to me as if they're working backwards but in
any event, to tell them that the percentage
would only be a -- of OI, if they find they
are liable, that's all that they would get, I
think improperly misleads the jury in terms of
the amount of damages that they may award. I
think the accurate statement is that they are
to award an amount of damages that will again
fairly and adequately compensate the plaintiff
without regard for the percentage to the
particular party.
Defendants contend the trial court's response to the jury's
question violated Theobold v. Angelos, supra. In that automobile
negligence case plaintiff had settled with two defendants and
prevailed at trial against two other defendants who together
constituted a single tort-feasor. On plaintiff's cross-appeal for
a new trial on damages, the Court addressed the "imperative need
for adequate education of juries when settlements . . . are
effectuated before or at trial in multiple tort-feasor cases." Id.
at 303. The Court's concern in these circumstances was the "ever
present danger that the verdict will not represent application of
the true measure of recovery." Ibid. The Court went on to make
the following comment, on which defendants rely:
The computation must be made without regard to
the number of defendants remaining in the
case, or the number of defendants originally
in the case, without regard to the total
number of persons involved in the incident
which caused the damages, including those who
have made settlements with plaintiff, and
without any deduction based upon what the
jurors think plaintiff may or should have
received in those settlements. If the
defendant remaining in the case is found to be
solely or partly responsible for the incident,
then, in assessing the damages, the jury
should treat the matter as if no one other
than defendant were ever involved in the
accident and as if their only problem were to
decide on the monetary sum which would fully
and fairly compensate the plaintiff for his
injuries and damages. And advice should be
given that under no circumstances are they to
attempt to apportion that amount on the basis
of the number of apparently culpable persons
involved, and endeavor to return the fraction
thereof deemed applicable to the defendant
before them. An understanding is essential
that when the sum representing full
compensation is returned, it will be
apportioned as the law dictates among the
defendant or defendants found responsible by
the jury and the other persons who have made
settlements with the plaintiff. A properly
compensatory verdict can be expected once the
trial court, by its instructions, engenders in
the minds of the jurors an appreciation that
injustice and inadequate recovery will fall
upon the plaintiff if, on the basis of some
effort at allocation among the remaining
defendants and the settlers, they lower the
total sum he is entitled to receive as
measured by the elements of damage described
above.
In Theobold, the Court's attention to the problem resulted
from an objection by plaintiff. Consequently, the opinion focused
on possible unfairness to one seeking damages. However, the
essence of the opinion was the concern that a failure to instruct
that damages were to be assessed without regard to apportionment of
fault among defendants would result in a verdict which did "not
represent application of the true measure of recovery." 40 N.J. at
303.
Here, the jury's question certainly indicated a strong
possibility that it was considering inflating its damage awards as
a means of assuring that plaintiffs received dollar recoveries
deemed by the jury to be appropriate. In that context, the trial
court fell into error when it overruled defendants' objection and
refused to remind the jury that it was obliged to set damages
without regard to the apportionment of fault among defendants.
The error was as prejudicial to these defendants as was the similar
error in Theobold.
The consequence of the Theobold error in the circumstances of
this case gives rise to another issue. Since we have held that OI
was entitled to judgment n.o.v., we can only speculate as to how
this jury would have reallocated OI's percentage of fault had it
known that OI was not responsible as a matter of law. It might
have assigned OI's percentage of fault entirely to the
nonparticipating parties, or, based on the considerable evidence
indicating substantial exposure to Kaylo, it might have decided
that OCF was up to forty-five percent responsible (in effect,
adding all or a portion of OI's percentage to that of OCF). That
would indicate the need for a new trial as to OCF (and the other
eleven nonparticipating defendants) on liability (as well as on
damages in this case for the reasons stated above). However, there
is an alternative solution to this problem suggested by our
approach to an analogous issue in Roland v. Brunswick Corp.,
215 N.J. Super. 240 (App. Div. 1987). In that case the jury had
returned inconsistent verdicts, finding that plaintiff's negligence
was not a proximate cause of the accident but that he was
nonetheless responsible for a share of the comparative fault. The
court said:
The verdict, therefore, as finally
rendered cannot stand. The only question is
whether we have the right now to mold the
verdict in accordance with the way in which we
believe the jury would have responded had it
been properly instructed following the initial
inconsistency. Our concern in this respect is
engendered by the fact that the jury did in
the end recalculate the percentage allocation,
and the record supports that outcome as well
as a finding of 5" plaintiff's negligence. We
believe, therefore, that we are thereby
precluded from a holding which would ascribe
no possibility of self-determination to that
action by the jury. On the other hand, our
conviction that the jury did in fact intend to
find the plaintiff's negligence to have
constituted a 5" contribution to proximate
cause constrains us from simply setting the
verdict aside and remanding for a new trial.
It is our view that the tension here engendered between principles of inviolability of the jury function on the one hand and notions of common sense, fair play and expedition on the other, is best resolved here by resorting to remittitur techniques. Cf. Bishop v. Harski, 191 N.J. Super. 109 (Law Div. 1983). That is to say, the judgment appealed from charges defendant Brunswick with 40" of the responsibility for plaintiff's injuries. In accordance with any reasonable interpretation of the jury's action, it would have been charged with at least 35%. It therefore cannot be in any way prejudiced by a remittitur technique. Plaintiff, on the other hand, was accorded by this judgment the benefit of a zero allocation. This allocation rests on legal error. Moreover, the jury's apparent intention was to charge him with 5" of the responsibility. Since the verdict cannot stand and since we cannot substitute our own judgment based on an apparent rather than a conclusive jury intention, we leave the choice to plaintiff. If plaintiff is willing to accept a molded verdict allocating 5" of
the total responsibility to him, then the judgment may be so amended by the trial