HELEN SARKOZY v. A.P. GREEN INDUSTRIES, INC
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0312-07T10312-07T1
HELEN SARKOZY, individually
and as Executrix of the
ESTATE OF FRANCIS SARKOZY,
Plaintiff,
V.
A.P. GREEN INDUSTRIES, INC.,
A DIVISION OF Global
Industrial Technologies,
Inc., individually and as
successor to A.P. Green
Firebrick Company and A.P.
Green Refractories Co., THE
ANCHOR PACKING COMPANY,
ARMSTRONG WORLD INDUSTRIES,
INC., formerly Armstrong
Cork Company and Armstrong
Contracting and Supply,
ASBESTOS CLAIMS MANAGEMENT
CORPORATION, individually
and as successor to
National Gypsum Company,
Asbestos Ltd. and Smith
Asbestos Co. and alter ego
of and/or successor to
National Asbestos Mines Ltd.,
ASTEN, INC., THE BABCOCK &
WILCOX COMPANY, individually
and as successor to B&W
Refractories Limited,
Standard Refractories
Limited and Holmes Blunt
Limited, THE CELOTEX
CORPORATION, individually and
as success to Philip Carey
Corp., Philip Carey Mfg. Co.,
Philip Carey Co., Inc., XPRU
Corporation, Briggs Mfg.
Company, Panacon Corporation,
Smith & Kanzler, Inc. and
Quebec Asbestos Corp., Ltd.,
CERRO WIRE & CABLE CO., INC.,
individually and as successor
to and/or also known as The
Rockbestos Company, Rockbestos
Wire and Cable Co. and
Rockbestos Surprenant Cable
Corporation, CERTAINTEED
CORPORATION, formerly
CertainTeed Products
Corp., individually and as
successor to Keasbey and
Mattison Company, COMBUSTION
ENGINEERING, INC., individually
and as successor to M.H.
Detrick Company, Walsh
Refractory Corp., and
Refractory and Insulation
Corp., now known as C. & E.
Refractories, Inc., DANA
CORPORATION, individually and
as successor to Spicer
Enterprises, Inc., DAYTON
ELECTRIC MANUFACTURING,
DURABLA MANUFACTURING COMPANY,
DURIRON COMPANY, INC., E&B
MILL SUPPLY CO., EAGLE-PICHER
INDUSTRIES, INC., ELIZABETH
INDUSTRIAL HARDWARE CO., a/k/a
Elizabeth Industrial Supply Co.,
a division of Guyon General
Piping, Inc., EMPIRE-ACE
INSULATION MFG. CORP.,
individually and as successor
to Empire Asbestos Co. and Ace
Asbestos Mfg. Company, FIBREBOARD
CORPORATION, individually and as
successor to Fibreboard
Paper Products
Corporation, Pabco Products,
Inc., and Plant, Rubber &
Asbestos Works, Inc.,
FLEXITALLIC, INC., formerly
Flexitallic Gasket Company,
Inc., THE FLINKTOTE COMPANY,
FOSTER WHEELER CORPORATION,
GAF CORPORATION, individually
and as successor to the
Ruberoid Co. and Vermont
Asbestos Corporation, GARLOCK,
INC., GENERAL SIGNAL CORPORATION,
GENERAL SUPPLY COMPANY, GEORGIA-
PACIFIC CORPORATION, HAHN
R.S. & SONS, INC., HERCULES
CHEMICAL COMPANY, INC.,
INDUSTRIAL WELDING SUPPLY,
INC., INGERSOLL-RAND COMPANY,
J. FEGELY & SON HARDWARE
COMPANY, INC., individually
and as successor to and/or
doing business as W.A. Tydeman
Company, JANOS INDUSTRIAL
INSULATION, INC., KING
INSULATION COMPANY, INC., now
known as King-Dandorf
Insulation, LEHIGH GASKET
COMPANY, LOSEY & CO., INC.,
M.H. DETRICK COMPANY, MADSEN
& HOWELL, INC., METROPOLITAN
REFRACTORIES CORPORATION,
OWENS-CORNING FIBERGLAS
CORPORATION, OWENS-ILLINOIS,
INC., PFIZER, INC., PITTSBURGH
CORNING CORPORATION, PPG
INDUSTRIES, INC., formerly
known as Pittsburgh Plate
Glass Company, individually
and as successor to and/or
alter ego of Pittsburgh
Corning Corporation, PULMOSAN
SAFETY EQUIPMENT CORPORATION,
QUIGLEY COMPANY, INC., RAPID
AMERICAN CORP., individually
and as successor to The
Celotex Corporation, Philip
Carey Mfg. Co., Philip Carey
Company, Inc., XPRU Corporation,
Briggs Manufacturing Company,
Panacon Corporation, Smith &
Kanzler, Inc. and Quebec
Asbestos Corp., Ltd., ROBERT A.
KEASBEY COMPANY, ROCKBESTOS
WIRE AND CABLE CO., individually
and as successor to and/or also
known as The Rockbestos Company,
Cerro Wire & Cable Co., Inc. and
Rockbestos-Surprenant Cable
Corporation, SAFEGUARD INDUSTRIAL
EQUIPMENT CO., SCAPA DRYER
FABRICS, INC., SHERMAN AND
CHAPLIN, INC., TURNER & NEWALL,
P.L.C., individually and as
successor to and alter ego of
Keasbey & Mattison Company
and Bell Asbestos Mines, Ltd.,
UNITED STATES GYPSUM COMPANY,
UNITED STATES MINERAL
PRODUCTS COMPANY, VICTAULIC
COMPANY OF AMERICA, VIKING
PUMP INC., W.A. TYDEMAN CO.,
division of J. Fegely & Son,
Inc., WOOLSULATE CORPORATION,
WORTHINGTON CORPORATION, JAM
INDUSTRIES, INC., individually
and as successor to Achenbach
& Butler, A.O. SMITH CORPORATION,
A.W. CHESTERTON COMPANY,
A-B ELECTRICAL SUPPLY COMPANY,
AALBORG INDUSTRIES, INC.,
individually and as successor
to Erie City Iron Works and
Zurn Industries, Inc., ALBANY
INTERNATIONAL CORP.,
individually and d/b/a Press
Fabrics Division, Mt. Vernon
Dryer Fabrics Division and/or
Albany Fabrics Division, ALPHA
PAINT COMPANY, INC., individually
and d/b/a Alpha Lumber & Supply
Co., Inc., AMERICAN STANDARD
INC., formerly American
Radiator & Standard Sanitary
Corp., individually and as
successor to Kewanee Boiler
Company, Inc., and The Trane
Company, AUTOMATIC SWITCH
COMPANY, BLACK CLAWSON, INC.,
BUFFALO PUMPS, INC., BURNHAM
CORPORATION, individually
and as successor to Burnham
Boiler Corp. and as a successor
to Kewanee Boiler Company, Inc.,
Penn Boiler & Burner Co. and
Spencer Boiler Company,
COLLINS PACKING CO., INC.,
COLT INDUSTRIES, INC.,
Fairbanks Morse Engine Division,
CRANE CO., individually and as
successor to and/or doing
business as National - U.S.
Radiator Division of Crane Co.,
National Boiler, and Thatcher
Boiler, a division of Crane
Company, CROWDER JR. COMPANY,
INC., individually and as
successor to H.N. Crowder, Jr.
Company, DURAMETALLIC
CORPORATION, EATON CORPORATION,
individually and as successor
to Vickers, Incorporated,
EDWARDS ENGINEERING CORP.,
EIMCO PROCESS EQUIPMENT COMPANY,
a division of Baker Hughes
Incorporated, THE FAIRBANKS
COMPANY, a California
corporation, individually
and as successor to The
Fairbanks Company, a New Jersey
corporation, FROMM ELECTRIC
SUPPLY CORP., GENERAL ELECTRIC
COMPANY, GL&V PULP GROUP,
INC., individually and as
successor to Beloit
Corporation and as successor
to IMPCO Division of Ingersoll-
Rand Company, GOULDS PUMPS,
INCORPORATED, GREENE TWEED
& COMPANY, HAJOCA CORP., HERMAN
SOMMER & ASSOCIATES, INC.,
HONEYWELL INTERNATIONAL, INC.,
as successor to Allied Signal,
Inc. and Aftermarket Brake
and Friction Materials Division
of Bendix Corporation, IMO
INDUSTRIES, INC., as successor
to and formerly known as DeLaval
Turbine, Transamerica DeLaval,
and IMO DeLaval, INVENSYS SYSTEMS,
INC., individually and as
successor to The Foxboro
Company, ITT CORPORATION, as
parent of Bell & Gossett
Division, JAGENBERG, INC.,
JAM INDUSTRIES, INC.,
individually and as successor
to Achenbach & Butler, LA BOUR
PUMP CO., INC., LEEDS & NORTHRUP
COMPANY, LINCOLN INDUSTRIAL,
a Pentair Company, MARSHALL
INDUSTRIAL TECHNOLOGIES,
formerly known as Marshall
Maintenance, MILTON ROY COMPANY
MOYNO, INC., THE NASH
ENGINEERING COMPANY, NELES-
JAMESBURY, INC., NICOLET
PAPER COMPANY DIVISION, a
Division of INTERNATIONAL
PAPER COMPANY, individually
and as successor to NICOLET
PAPER COMPANY, INC., PARKER
HANNIFAN CORPORATION,
individually and as successor
to Schrader Bellows and
Sinclair Collins, THE PEERLESS
HEATER COMPANY, division
of Peerless Industries, Inc.,
PERMATEX INDUSTRIAL CORPORATION,
RARITAN SUPPLY COMPANY,
individually and as successor
to Bridge Supply Co., RARITAN
VALLEY PLUMBING SUPPLY CO.,
RICE BARTON CORPORATION,
individually and formerly
known as Rice, Barton & Fales
Co., Inc., RIDGEWOOD PLUMBING
& HEATING CORPORATION,
individually and formerly
known as and/or doing business
as Ridgewood Plumbing Supply
Co., Hackensack Plumbing Supply
Co. and Hunterdon Plumbing,
Heating & Cooling, Inc., ROCKWELL
MANUFACTURING COMPANY, SLOAN
VALVE CO., SPIRAX SARCO, INC.,
individually and as successor to
Sarco Company, Inc., THE
STROBER-HADDONFIELD GROUP, INC.,
individually and doing business
as Apex Lumber Mart, Inc.,
Haddonfield Lumber Co. and
Strober New Jersey Building
Supply Center, SVI CORPORATION,
individually and as successor to
Stockholm Valves & Fittings, Inc.,
UNION PUMP COMPANY, THE WALWORTH
COMPANY, WEAVEXX CORPORATION,
WEIL-McLAIN, a division of the
Marley Company, successor in
interest to the Wylain Company,
WESTINGHOUSE ELECTRIC
CORPORATION, ZIDELL VALVE CORP.,
individually and as successor to
Zidell Explorations, Inc., ZURN
INDUSTRIES, INC., individually
and as successor to Erie City
Iron Works, BP AMERICA INC.,
individually as successor to and/or
doing business as The Standard Oil
Company, Industrial Holdings
Corporation, Kennecott Mining
Corporation, Kennecott Corporation,
Kennecott Industries, Inc., and
Lockport Felt Co., a division of The
Carborundum Company, SPX CORPORATION,
individually, as successor to and
doing business as DeZurik Co., The
Copes Company, Copes-Vulcan, Inc.,
DeZurk/Copes-Vulcan, Daniel Valve
Company and SPX Valves & Controls,
and WICHITA CLUTCH CO., INC.,
Defendants.
WILLARD A. BAYLOR, HENRY E.
ALTNER, JOSEPH H. BECKER,
CHESTER A. BELLIS, WILLIAM
H. CARVER, ROBERT A.
CLAUSEN, EDWARD S. COLE,
JAMES E. COLE, ROBERT C.
FLECK, JAMES J. GARDNER,
ARTHUR A. HALLINGER, RICHARD
R. HOFFMAN, BERNARD L. KELLY,
ROBERT C. KING, BARRY LaFEVRE,
FRANK N. LANSCHE, ERNEST J.
MINARDI, EDWARD PEARSON,
TUNIS PURSELL, WILLIAM J.
REINBOLD, REGINALD R.
WONDOLOSKI, and KENNETH H. YOB,
Plaintiffs,
and
WALTER L. PATTON, and HARRY H.
WILSON, deceased, by his
his Executrix Jeanette M.
Wilson, and JEANETTE WILSON,
his wife,
Plaintiffs-Respondents,
v.
A.O. SMITH CORPORATION,
A.P. GREEN INDUSTRIES, INC.,
a division of Global
Industrial Technologies,
Inc., individually and as
successor to A.P. Green
Firebrick Company, A.P.
Green Refractories Co. and
Metropolitan Refractories
Corporation, A.W. CHESTERTON
COMPANY, A-B ELECTRICAL
SUPPLY COMPANY, AALBORG
INDUSTRIES, INC., individually
and as a successor to Erie
City Iron Works and Zurn
Industries, Inc., ALBANY
INTERNATIONAL CORP.,
individually and d/b/a Press
Fabrics Division, Mt. Vernon
Dryer Fabrics Division and/or
Albany Fabrics Division,
ALPHA PAINT COMPANY, INC.,
individually and d/b/a Alpha
Lumber & Supply Co., Inc.,
AMERICAN STANDARD INC.,
formerly American Radiator
& Standard Sanitary Corp.,
individually and as successor
to Kewanee Boiler Company,
Inc. and The Trane Company,
THE ANCHOR PACKING COMPANY,
ARMSTRONG WORLD INDUSTRIES,
INC., formerly Armstrong
Cork Company and Armstrong
Contracting and Supply,
ASBESTOS CLAIMS MANAGEMENT
CORPORATION, individually and
as successor to National
Gypsum Company, Asbestos Ltd.
and Smith Asbestos Co. and
alter ego of and/or successor
to National Asbestos Mines Ltd.,
ASTEN, INC., AUTOMATIC SWITCH
COMPANY, THE BABCOCK & WILCOX
COMPANY, individually and as
successor to B&W Refractories
Limited, Standard Refractories
Limited and Holmes Blunt Limited,
BLACK CLAWSON, INC., BUFFALO
PUMPS, INC., BURNHAM CORPORATION,
individually and as successor
to Burnham Boiler Corp. and as a
successor to Kewanee Boiler
Company, Inc., Penn Boiler &
Burner Co. and Spencer Boiler
Company, THE CELOTEX CORPORATION,
individually and as successor to
Philip Carey Corporation,
Philip Carey Mfg. Co., Philip
Carey Company, Inc., XPRU
Corporation, Briggs Manufacturing
Company, Panacon Corporation,
Smith & Kanzler, Inc. and Quebec
Asbestos Corp., Ltd., CERRO
WIRE & CABLE CO., INC.,
individually and as successor to
and/or also known as The
Rockbestos Company, Rockbestos
Wire and Cable Co. and
Rockbestos-Surprenant Cable
Corporation, CERTAINTEED
CORPORATION, formerly CertainTeed
Products Corp., individually
and as successor to Keasbey and
Mattison Company, COLLINS
PACKING CO., INC., COLT
INDUSTRIES, INC., Fairbanks
Morse Engine Division, COMBUSTION
ENGINEERING, INC., individually
and as successor to M.H. Detrick
Company, Walsh Refractory
Corporation and Refractory and
Insulation Corporation, now known
as C. & E. Refractories, Inc.,
CRANE CO., individually and as
successor to and/or doing
business as National - U.S.
Radiator Division of Crane Co.,
National Boiler, and Thatcher
Boiler, a division of Crane
Company, CROWDER JR. COMPANY,
INC., individually and as
successor to H.N. Crowder, Jr.
Company, DANA CORPORATION,
individually and as successor
to Spicer Enterprises, Inc.
and Victor Gaskets, DAYTON
ELECTRIC MANUFACTURING,
DURAMETALLIC CORPORATION,
E&B MILL SUPPLY CO., EAGLE-
PICHER INDUSTRIES, INC.,
EATON CORPORATION, individually
and as successor to Vickers,
Incorporated, EDWARDS
ENGINEERING CORP., EIMCO PROCESS
EQUIPMENT COMPANY, a division of
Baker Hughes Incorporated,
ELIZABETH INDUSTRIAL HARDWARE CO.,
a/k/a Elizabeth Industrial Supply
Co., a division of Guyon General
Piping, Inc., EMPIRE-ACE
INSULATION MFG. CORP., individually
and as successor to Empire Asbestos
Co. and Ace Asbestos Mfg. Company,
THE FAIRBANKS COMPANY, a California
corporation, individually and as
successor to The Fairbanks Company,
a New Jersey corporation,
FIBREBOARD CORPORATION,
individually and as successor to
Fibreboard Paper Products
Corporation, Pabco Products, Inc.,
and Plant, Rubber & Asbestos
Works, Inc., THE FLEXITALLIC
GROUP, INC., individually and as
successor to Flexitallic, Inc. and
Flexitallic Gasket Company Inc.,
THE FLINTKOTE COMPANY, FLOWSERVE
CORPORATION, individually and as
successor to The Duriron Company,
Inc., Valtek Control Valves and
Wilson-Snyder Pumps, FOSTER
WHEELER CORPORATION, THE FOXBORO
COMPANY, FROMM ELECTRIC SUPPLY CORP.,
GAF CORPORATION, individually
and as successor to the
Ruberoid Co. and Vermont
Asbestos Corporation, GARLOCK,
INC., GENERAL ELECTRIC COMPANY,
GENERAL SIGNAL CORPORATION,
GENERAL SUPPLY COMPANY, GEORGIA-
PACIFIC CORPORATION, GL&V PULP
GROUP, INC., individually and
as successor to Beloit
Corporation and as successor to
IMPCO Division of Ingersoll-
Rand Company, GOULDS PUMPS,
INCORPORATED, GREENE TWEED &
COMPANY, HAJOCA CORP., HERCULES
CHEMICAL COMPANY, INC., HERMAN
SOMMER & ASSOCIATES, INC.,
HONEYWELL INTERNATIONAL, INC.
as successor to Allied Signal,
Inc. and Aftermarket Brake and
Friction Materials Division of
Bendix Corporation, HUNTERDON
PLUMBING, HEATING & COOLING,
INC., IMO INDUSTRIES INC., as
successor to and formerly known
as DeLaval Turbine, Transamerica
DeLaval, and IMO DeLaval,
INDUSTRIAL WELDING SUPPLY, INC.,
INGERSOLL-RAND COMPANY, ITT
CORPORATION, as parent of Bell
& Gossett Division, J. FEGELY &
SON HARDWARE COMPANY, INC.,
individually and as successor
to and/or doing business as
W.A. Tydeman Company,
JAGENBERG, INC., JAM INDUSTRIES,
INC., individually and as
successor to Achenbach & Butler,
JANOS INDUSTRIAL INSULATION, INC.,
KING INSULATION COMPANY, INC.,
now known as King-Dandorf
Insulation, LA BOUR PUMP CO., INC.,
LEEDS & NORTHRUP COMPANY, LEHIGH
GASKET COMPANY, LINCOLN INDUSTRIAL,
a Pentair Company, LOSEY & CO.,
INC., M.H. DETRICK COMPANY, MADSEN
& HOWELL, INC., MARSHALL
INDUSTRIAL TECHNOLOGIES,
formerly known as Marshall
Maintenance, MILTON ROY
COMPANY, MOYNO, INC., THE NASH
ENGINEERING COMPANY, NELES-
JAMESBURY, INC., OWENS-CORNING
FIBERGLAS CORPORATION, OWENS-
ILLINOIS, INC., PARKER HANNIFIN
CORPORATION, individually and
as successor to Schrader
Bellows and Sinclair Collins,
THE PEERLESS HEATER COMPANY,
division of Peerless Industries,
Inc., PERMATEX INDUSTRIAL
CORPORATION, PFIZER, INC.,
PITTSBURGH CORNING CORPORATION,
PPG INDUSTRIES, INC., formerly
known as Pittsburgh Plate Glass
Company individually and as
successor to and/or alter
ego of Pittsburgh Corning
Corporation, PULMOSAN SAFETY
EQUIPMENT CORPORATION, QUIGLEY
COMPANY, INC., RAPID AMERICAN
CORP., individually and as
successor to The Celotex
Corporation, Philip Carey Mfg.
Co., Philip Carey Company, Inc.,
XPRU Corporation, Briggs
Manufacturing Company, Panacon
Corporation, Smith & Kanzler,
Inc. and Quebec Asbestos Corp.,
Ltd., RARITAN SUPPLY COMPANY,
individually and as successor to
Bridge Supply Co., RARITAN VALLEY
PLUMBING SUPPLY CO., RICE BARTON
CORPORATION, individually and formerly
known as Rice, Parton & Fales Co., Inc.,
ROBERT A. KEASBEY COMPANY, ROCKBESTOS
WIRE AND CABLE CO., individually and
as successor to and/or also
known as The Rockbestos Company,
Cerro Wire & Cable Co., Inc.
and Rockbestos-Surprenant Cable
Corporation, ROCKWELL MANUFACTURING
COMPANY, SAFEGUARD INDUSTRIAL
EQUIPMENT CO., SHERMAN AND
CHAPLIN, INC., SLOAN VALVE CO.,
SPIRAX SARCO, INC., individually
and as successor to Sarco Company,
Inc., THE STROBER-HADDONFIELD
GROUP, INC., individually and
doing business as Apex Lumber
Mart, Inc., Haddonfield Lumber
Co. and Strober New Jersey
Building Supply Center, SVI
CORPORATION, individually and
as successor to Stockham Valves
& Fittings, Inc., TURNER &
NEWALL, P.L.C., individually
and as successor to and alter
ego of Keasbey & Mattison Company
and Bell Asbestos Mines, Ltd.,
UNION PUMP COMPANY, UNITED STATES
GYPSUM COMPANY, UNITED STATES
MINERAL PRODUCTS COMPANY, VICTAULIC
COMPANY OF AMERICA, VIKING PUMP
INC., W.A. TYDEMAN CO., a division
of J. Fegeley & Son, Inc., THE
WALWORTH COMPANY, WEAVEXX
CORPORATION, WEIL-McLAIN, a division
of the Marley Company, successor in
interest to the Wylain Company,
WESTINGHOUSE ELECTRIC CORPORATION,
WOOLSULATE CORPORATION, WORTHINGTON
CORPORATION, ZIDELL VALVE CORP.,
individually and as successor to
Zidell Explorations, Inc., and
ZURN INDUSTRIES, INC., individually
and as successor to Erie City Iron
Works,
Defendants,
and
DURABLA MANUFACTURING COMPANY,
Defendant/Third-Party
Plaintiff,
v.
GOODYEAR TIRE AND RUBBER
COMPANY AND GOODYEAR CANADA,
INC.,
Third-Party Defendant,
and
SCAPA DRYER FABRICS, INC.,
Defendant/Third-Party
Plaintiff-Appellant,
v.
MANVILLE TRUST,
Third-Party Defendant.
WALTER W. GRUBE, deceased,
by his Co-Executrixes, Linda
J. Cole and Beverly A. Weeast,
Plaintiff-Respondent,
v.
A.O. SMITH CORPORATION, A.W.
CHESTERTON COMPANY, A-B
ELECTRICAL SUPPLY COMPANY,
ALBANY INTERNATIONAL CORP.,
individually and d/b/a/
Press Fabrics Division, Mt.
Vernon Dryer Fabrics Division
and/or Albany Fabrics Division,
ALPHA PAINT COMPANY, INC.,
individually and d/b/a Alpha
Lumber & Supply Co., Inc.,
AMERICAN STANDARD INC.,
formerly American Radiator &
Standard Sanitary Corp.,
individually and as successor
to Kewanee Boiler Company, Inc.
and The Trane Company, ASTEN,
INC., AUTOMATIC SWITCH COMPANY,
BLACK CLAWSON, INC., BUFFALO PUMPS,
INC., BURNHAM CORPORATION,
individually and as successor to
Burnham Boiler Corp. and as a
successor to Kewanee Boiler
Company, Inc., Penn Boiler &
Burner Co., Spencer Boiler
Company and Bryan Boilers,
CERRO WIRE & CABLE CO., INC.,
individually and as successor
to and/or also known as The
Rockbestos Company, Rockbestos
Wire and Cable Co. and Rockbestos-
Surprenant Cable Corporation,
CERTAINTEED CORPORATION, formerly
CertainTeed Products Corp.,
individually and as successor
to Keasbey and Mattison Company,
and Unisul, COLLINS PACKING CO.,
INC., COLT INDUSTRIES, INC.,
Fairbanks Morse Engine Division,
COMBUSTION ENGINEERING, INC.,
individually and as successor to
M.H. Detrick Company, Walsh
Refractory Corporation and
Refractory and Insulation
Corporation, now known as C. & E.
Refractories, Inc., CRANE CO.,
individually and as successor to
and/or doing business as National
- U.S. Radiator Division of Crane
Co., National Boiler, and Thatcher
Boiler, a division of Crane Company,
CROWDER JR. COMPANY, INC.,
individually and as successor to
H.N. Crowder, Jr. Company, DANA
CORPORATION, individually and
as successor to Spicer Enterprises,
Inc. and Victor Gaskets, DAYTON
ELECTRIC MANUFACTURING, DURABLA
MANUFACTURING COMPANY, DURAMETALLIC
CORPORATION, E&B MILL SUPPLY CO.,
EATON CORPORATION, individually
and as successor to Vickers,
Incorporated, EDWARDS ENGINEERING
CORP., EIMCO PROCESS EQUIPMENT
COMPANY, a division of Baker Hughes
Incorporated, ELIZABETH INDUSTRIAL
HARDWARE CO., a/k/a Elizabeth
Industrial Supply Co., a
division of Guyon General
Piping, Inc., THE FAIRBANKS
COMPANY, a California
corporation, individually
and as successor to The
Fairbanks Company, a New
Jersey corporation, THE
FLINTKOTE COMPANY, FLOWSERVE
CORPORATION, individually
and as successor to The
Duriron Company, Inc.,
FOSTER WHEELER CORPORATION,
FROMM ELECTRIC SUPPLY CORP.,
GARLOCK, INC., GENERAL
ELECTRIC COMPANY, GENERAL
SIGNAL CORPORATION, GENERAL
SUPPLY COMPANY, GEORGIA-
PACIFIC CORPORATION, GOULDS
PUMPS, INCORPORATED, GREENE
TWEED & COMPANY, HAJOCA CORP.,
HERCULES CHEMICAL COMPANY,
INC., HERMAN SOMMER &
ASSOCIATES, INC., HONEYWELL
INTERNATIONAL, INC., IMO
INDUSTRIES INC., as successor
to and formerly known as
DeLaval Turbine, Transamerica
DeLaval, and IMO DeLaval,
INDUSTRIAL WELDING SUPPLY,
INC., INGERSOLL-RAND COMPANY,
INVENSYS SYSTEMS, INC.,
individually and as successor
to The Foxboro Company, ITT
CORPORATION, individually,
doing business as and successor
to Bell & Gossett Company
and/or Bell & Gossett Division
and Marlow Pumps, JAGENBERG,
INC., JAM INDUSTRIES, INC.,
individually and as successor
to Achenbach & Butler, LA BOUR
PUMP CO., INC., LEEDS &
NORTHRUP COMPANY, LEHIGH GASKET
COMPANY, LINCOLN INDUSTRIAL, a
Pentair Company, LOSEY & CO., INC.,
MADSEN & HOWELL, INC., MARSHALL
INDUSTRIAL TECHNOLOGIES, formerly
known as Marshall Maintenance,
MILTON ROY COMPANY, MOYNO, INC.,
THE NASH ENGINEERING COMPANY,
NELES-JAMESBURY, INC., NICOLET
PAPER COMPANY DIVISION, a
Division of INTERNATIONAL PAPER
COMPANY, individually and as
successor to Nicolet Paper
Company, Inc., OWENS-ILLINOIS,
INC., PARKER HANNIFIN CORPORATION,
individually and as successor to
Schrader Bellows and Sinclair
Collins, THE PEERLESS HEATER
COMPANY, division of Peerless
Industries, Inc., PERMATEX
INDUSTRIAL CORPORATION, PFIZER,
INC. (formerly Chas. Pfizer & Co.,
Inc.), PULMOSAN SAFETY EQUIPMENT
CORPORATION, QUIGLEY COMPANY,
INC., RAPID AMERICAN CORP.,
individually and as successor to
The Celotex Corporation, Philip
Carey Mfg. Co., Philip Carey
Company, Inc., XPRU Corporation,
Briggs Manufacturing Company,
Panacon Corporation, Smith &
Kanzler, Inc. and Quebec Asbestos
Corp., Ltd., RARITAN SUPPLY
COMPANY, individually and as
successor to Bridge Supply Co.,
RARITAN VALLEY PLUMBING SUPPLY
CO., RICE BARTON CORPORATION,
individually and formerly known
as Rice, Barton & Fales Co.,
Inc., RIDGEWOOD PLUMBING &
HEATING CORPORATION, individually
and formerly known as and/or
doing business as Ridgewood
Plumbing Supply Co., Hackensack
Plumbing Supply Co. and Hunterdon
Plumbing, Heating & Cooling, Inc.,
ROBERT A. KEASBEY COMPANY,
ROCKBESTOS WIRE AND CABLE CO.,
individually and as successor to
and/or also known as The
Rockbestos Company, Cerro Wire
& Cable Co., Inc. and Rockbestos-
Surprenant Cable Corporation,
ROCKWELL INTERNATIONAL, SAFEGUARD
INDUSTRIAL EQUIPMENT CO., SHERMAN
AND CHAPLIN, INC., SLOAN VALVE CO.,
SPIRAX SARCO, INC., individually
and as successor to Sarco Company,
Inc., THE STROBER-HADDONFIELD
GROUP, INC., individually and
doing business as Apex Lumber
Mart, Inc., Haddonfield Lumber Co.
and Strober New Jersey Building
Supply Center, SVI CORPORATION,
individually and as successor to
Stockham Valves & Fittings, Inc.,
UNION PUMP COMPANY, VICTAULIC
COMPANY OF AMERICA, VIKING PUMP
INC., THE WALWORTH COMPANY,
WEAVEXX CORPORATION, WEIL-McLAIN,
a division of the Marley Company,
successor in interest to the
Wylain Company, WESTINGHOUSE
ELECTRIC CORPORATION, WOOLSULATE
CORPORATION, WORTHINGTON
CORPORATION, ZIDELL VALVE CORP.,
individually and as successor to
Zidell Explorations, Inc., ZURN
INDUSTRIES, INC., individually and
as successor to Erie City Iron
Works, AMCHEM PRODUCTS, INC.,
UNION CARBIDE CORPORATION, BP
AMERICA INC., individually, as
successor to and/or doing business
as The Standard Oil Company,
Industrial Holdings Corporation,
Kennecott Mining Corporation,
Kennecott Corporation, Kennecott
Industries, Inc., and Lockport
Felt Co., a division of The
Carborundum Company, THE CONGOLEUM
CORPORATION, DeZURICK, INC.,
and WICHITA CLUTCH CO., INC.,
Defendants,
and
SCAPA DRYER FABRICS, INC.,
Defendant/Third-Party
Plaintiff-Appellant,
v.
MANVILLE TRUST,
Third-Party Defendant.
Argued December 15, 2008 - Decided
Before Judges Carchman, Sabatino and
Simonelli.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County,
Docket numbers L-5603-01AS, L-5653-01AS,
and L-5727-02AS.
Benjamin E. Haglund and Elizabeth O'Neill
argued the cause for appellant (Day Pitney, LLP, attorneys; Mr. Haglund, Elizabeth J.
Sher, and Jeffrey S. Mandel, on the brief).
Angelo J. Cifaldi argued the cause for
respondents (Wilentz, Goldman & Spitzer, P.A., attorneys; Mr. Cifaldi and Keven H. Friedman, on the brief).
PER CURIAM
In this consolidated asbestos litigation, defendant Scapa Dryer Fabrics Inc. (Scapa) appeals from judgments awarding monetary damages to plaintiffs Walter L. Patton, the estate of plaintiff Harry H. Wilson and Wilson's wife, Jeanette Wilson (Jeanette), and the estate of plaintiff Walter W. Grube and Grube's daughter, Linda Cole, arising from the three plaintiffs' exposure to Scapa's asbestos-containing dryer felts in the course of their employment at Riegel Paper Mills in western New Jersey. After a six week trial, the jury awarded Patton an aggregate verdict of $514,220, Wilson an aggregate verdict of $76,102.01 and Grube an aggregate verdict of $259,045. The jury rejected the claims of two other plaintiffs, Joseph Becker and James Gardner.
On appeal, defendant asserts that some of the damage awards are excessive and against the weight of the evidence; the jury's failure to apportion liability to other defendants is against the weight of the evidence; and cumulative errors resulted in an unfair trial, warranting reversal and remand for a new trial on both liability and damages. We conclude that defendant's arguments are without merit and affirm.
We provide an extensive exposition of the facts as defendant's principal argument focuses on the evidence presented to the jury. Patton, Wilson and Grube are former employees of the Riegel Paper Company, which once operated paper mills in Milford, Warren Glen, Riegelsville and Hughesville, New Jersey. Patton worked at the company's various mills between 1956 and 1994 as a millwright. He worked throughout the mills, including in and around the paper machines. Wilson operated the paper machines at the mill in Milford for over twenty years, starting some time in the late 1970s. Grube worked at the mill in Milford for over forty years, between approximately 1939 and 1982. He was a lathe operator, working primarily in the machine shop, while also performing maintenance work and assisting in other parts of the mill as needed.
In its mills, Riegel used dryer felts on its massive paper machines to dry wet rolls of paper that enter the machines. The dryer felts, large in size, moved at hundreds to thousands of feet per minute, depending upon the grade of paper being produced.
The average dryer felt lasted approximately three months to one year. Mill employees stated that the felts needed to be changed regularly due to wear and tear and fraying. The dryer felts deteriorated upon exposure to abrasions, heat, chemicals and water conditions present in the dryer section of a paper machine.
At its Warren Glen and Milford mills, Riegel used both Scapa's asbestos and non-asbestos felts. Yet Riegel also used dryer felts produced or supplied by companies such as defendants Albany International Corp., Asten, Huyck and Lockport Felt Co. In addition to the dryer felts, there were other products used at the Riegel paper mills that contained asbestos, for example: ventilation hoods over the drying machines, gaskets, insulation, putty, packing, gloves, blankets and transite panels.
Scapa manufactured dryer felts for its customers, including Riegel, on a special order basis. Scapa maintained "master cards," which were "recipe cards" that identified the customer's design specifications. Scapa's master card records show that the last year Riegel purchased an asbestos-containing felt for either its Milford or Warren Glen mills was 1975.
One Scapa felt, examined at trial, revealed an asbestos content of 47.9 percent; however, Steven Paskal, plaintiffs' expert in industrial hygiene and occupational asbestos exposure, stated that he had seen asbestos percentages ranging anywhere between ten and eighty percent.
Scapa manufactured and sold asbestos-containing dryer felts from the 1950s through the late 1970s, but the company continued to purchase asbestos yarns through 1981. Although Scapa knew that asbestos fibers could be released from the dryer felts in the weaving process, it did not place warnings on its asbestos-containing felts for several reasons. It did not believe that the final product was dangerous or would release asbestos fibers, because the felts ran wet through the paper machines, thereby reducing the dust. Additionally, some felts were manufactured with a resin coating that encapsulated the asbestos fibers and prevented their release despite extensive wear and tear.
As the trial progressed, the jury was educated about paper production. By its very nature, the paper-making process is a dusty one, with the dryer felts contributing to the overall dust level. The dryer felts released dust as they cycled through the machines, particularly as the felts deteriorated over time. Felts also emitted dust during "blow-downs," when compressed air was blown over the dryer felts in order to clear the machines of debris when the felts were changed out of the machines, and when the felts were cut for various reasons.
The machines produced externally hot conditions well over 100 degrees Fahrenheit. Although the factory's windows generally remained closed in order to prevent contamination, ventilation hoods were located above the dryer sections of the paper machines to reduce the heat, humidity and dust. Any residuary dust not removed settled on the floor and was not cleaned up immediately.
According to plaintiffs' witnesses, Patton, Wilson and Grube all worked around the paper machines and dryer felts, including Scapa felts, and were exposed to asbestos dust as part of their job responsibilities at the Riegel mills. The felts contained no warnings, and employees did not take any special precautions around the felts, nor were they instructed to do so. The parties' experts disagreed as to whether plaintiffs were exposed to dangerous levels of asbestos fibers in the course of their employment at Riegel. James Millette, plaintiffs' expert on environmental science, microscopy, asbestos analysis and fiber release testing, performed fiber release tests on asbestos-containing dryer felts, including one manufactured by Scapa.
One of Millette's tests revealed that asbestos fibers in excess of five microns in length came off the felts when post-it notes were applied to it. According to Millette, this demonstrated that the asbestos fibers were "readily releasable," and not encapsulated as Scapa claimed. In Millette's second test, when air was blown over the felts, asbestos fibers in excess of five microns in length were released into the air. Some of those fibers were visible, but others were visible only in a beam of light or under a microscope.
Millette explained that, in a real world setting, the asbestos fibers released from the dryer felts would either be collected in a filter if there was some sort of ventilation unit, or they would become part of the settled dust. As part of the settled dust, they were subject to reentrainment, meaning that they could be "pushed back into the air" if the settled dust was disturbed, for example, through vacuuming or sweeping. He found this problematic.
Q. Can you tell us why, in an occupational setting, settled dust containing asbestos might be a concern?
A. Well, this is a reservoir for all sorts of fibers to accumulate, and depending on what cleaning practices are done in that industry, you could have fibers that are resuspended from years of activity, something that happened years before, you may still have particles in the dust that remain there that are continually resuspended, and continue on as a source of exposure.
Paskal agreed with Millette on the issue of reintrainment. He further opined that, based upon his own experience and studies done by others with which he was familiar, the asbestos present in a paper mill from dryer felts was friable (capable of being bent or shaped), not isolated, capable of being disturbed and capable of being inhaled.
He stated that individuals regularly in the vicinity of the blow-down of a paper machine could be exposed to substantial amounts of breathable asbestos fibers released from dryer felt, as could anybody regularly exposed to any activity that imparted energy against a dryer felt (for example, shaking, cutting, tearing, putting it on vibrating surfaces or running it through a paper machine). Moreover, such occupational exposure would create a significant risk for the development of asbestos-related disease.
Yet, both Millette and Paskal qualified their opinions by agreeing that the environmental conditions at the dryer end of a paper machine; for example, the heat, humidity and ventilation, would affect the ability of asbestos fibers from a dryer felt to become airborne and respirable.
Defendant's experts took the opposite position. They did not believe that working with asbestos-containing dryer felts created a risk of significant asbestos exposure or the development of asbestos-related disease. Paul Carlson, defendant's expert in industrial hygiene, stated that in his experience, the dust produced in a paper mill is comprised of paper dust. He did not believe that persons who worked with asbestos-containing dryer felts would be subjected to significant asbestos exposure because the asbestos levels measured in the paper mill environment were "close to ambient or background levels" that exist in the air we all breathe. Defendant's expert in air monitoring for asbestos levels, environmental engineering, and the testing of asbestos-containing products for fiber release, Vittorio Argento, agreed with Carlson's assessment. He stated that working with asbestos-containing dryer felts in papers mills was not hazardous. High humidity levels and ventilation systems prevented asbestos fibers from becoming airborne; there was no great tendency for reentrainment, i.e., for asbestos fibers to become airborne once they settled; and testing of air quality in paper plants showed that the asbestos exposure was similar to the ambient air that people are exposed to throughout the day. He did not believe that Patton, Wilson and Grube were exposed to hazardous levels of asbestos from Scapa dryer felts.
The damage issues were also contentious. With respect to the process of disease development in connection with asbestos exposure, the jury heard from: (1) Arnold Brody, Ph.D., plaintiffs' expert as a "cellbiologist regarding asbestos"; (2) Dr. Susan Daum, plaintiffs' expert in the "[d]iagnosis of asbestos-related diseases[, the] nature, cause and effect of asbestos-related diseases[,] and the disease-causing propensity of asbestos fiber types and substances"; (3) Dr. Stephen Newman, plaintiffs' expert in the "diagnosis and treatment of asbestos disease, [the] etiology of asbestos disease, [the] causes and effects of asbestos disease, and pulmonary and occupational [medicine]"; (4) Dr. Malcolm Hermele, plaintiffs' expert on the "[d]iagnosis and treatment of asbestos disease[, the] causes and effects of asbestos disease, [and] internal and occupational medicine"; (5) Dr. Steven Dikman, plaintiffs' expert in "[p]athology[, the] diagnosis of asbestos-related diseases[,] and [the] nature, cause and effect of asbestos-related diseases"; (6) Dr. Benjamin Safirstein, defendant's expert in "pulmonary medicine, occupational-related pulmonary medicine, the diagnosis and treatment of asbestos-related disease, and the causes and effects of occupational asbestos exposure on human health"; and (7) Dr. Andrew Ghio, defendant's "expert in the diagnosis and treatment of lung disease, occupational lung disease, including lung cancer and asbestosis."
Plaintiffs' experts explained that the three diseases associated with cumulative asbestos exposure are: (1) asbestosis; (2) cancer, including but not limited to cancer of the lung, voice box, esophagus, stomach and colon; and (3) mesothelioma, a cancer of the mesothelial cells on the outside lining of the lung.
Asbestosis develops from repeated exposure to asbestos over time. In the disease process of asbestosis, asbestos fibers collect in the lung causing scar tissue to develop as a defensive response. Significant scar tissue may impair lung function. Cancer, including mesothelioma, develops when the asbestos fibers cause genetic errors that generate cancer cells that multiply over time.
Mesothelioma differs from lung cancer in two significant ways. First, mesothelioma is a malignancy of the lining surfaces of various body cavities, such as the lung, chest, abdominal and peritoneal cavities which can then spread from those surfaces. By contrast, the "target site for lung cancer" is the airways of the respiratory tract (the "mucociliary escalator").
Second, asbestos exposure is the only known cause of mesothelioma in North America; it cannot be caused by cigarette smoke. By contrast, lung cancer has many causes, including cigarette smoke. It is extremely rare, although possible, for a non-smoking individual exposed to asbestos to develop lung cancer as a result. On the other hand, "[s]moking is interactive with asbestos in causing lung cancer," such that people who smoke and are also exposed to asbestos have a greater risk of developing lung cancer than those exposed only to smoke or asbestos alone.
The symptoms of asbestosis, lung cancer and mesothelioma are the same: shortness of breath, chest pain, distinctive lung abnormalities visible by x-ray and reduced pulmonary functioning. Daum described the effects of mesothelioma and lung cancer as follows:
The mesothelial tissue, which is forming the tumor, compresses the lung, makes people short of breath. It grows through the chest wall and invades nerve roots in the chest wall, and makes you have a lot of pain. When nerves are invaded in cancer, it hurts like terrible. And it secretes fluid, so the whole lung fills up with fluid. It spreads along surfaces.
It does metastasize in the sense of the way other cancers do, through the bloodstream. Mostly it spreads along surfaces, and it spreads into the abdomen and onto the other side, into the lung, and chokes the person. Cancer death is often from infection because the immune system is depressed. It's often from lack of nutrition, because the cancer secretes poisons which rob the body of nutrition, or simply from the body of the tumor that takes nutrition from the body. And cancer patients become very thin, and if you've ever seen one, it's horrible. And it causes a lot of pain. So they die of pneumonia, asphyxia, the lung being compressed too much to breathe; infection; invasion of the heart; invasion of the trachea, cutting off the breathing or the heart. I mean, those are some typical ways.
All three diseases (asbestosis, cancer, and mesothelioma) have long latency periods, of up to fifty years or more, and they are incurable and usually progressive. The disease progression, if any, should be monitored through regular medical testing such as pulmonary function tests, x-rays, CT scans, PET scans and screenings for colon cancer. If cancer or mesothelioma is diagnosed, it is sometimes possible to prolong life with chemotherapy. However, not everyone exposed to asbestos will develop asbestos-related disease. And, not every person diagnosed with asbestos-related pleural disease will develop cancer.
Patton was alive at the time of trial, and he was a non-smoker. He was diagnosed with asbestos-related lung changes at a union-sponsored screening in 2000, later confirmed by his personal physician. He complained of shortness of breath, restrictions on his physical abilities, a cough and mild chest pain upon physical exertion. However, the results of his pulmonary functioning tests were in the normal or above normal range.
After his diagnosis, he became severely depressed. The depression abated with time. However, he continued to live in fear of a painful death from asbestos-related cancer, particularly in light of his brother's death from mesothelioma. He went for regular doctors' visits and cancer screenings. Plaintiffs' medical expert, Newman, opined that the pleural thickening and scarring visible on Patton's x-rays and the pulmonary symptoms Patton was experiencing, were an asbestos-related pleural disease caused by occupational asbestos exposure, including exposure to Scapa's asbestos-containing dryer felts. He recommended that Patton undergo regular medical monitoring including checkups, colonoscopies and CT scans of the chest.
Defendant's medical experts, Safirstein and Ghio, reviewed Patton's medical records and x-rays and found no evidence of any asbestos-related disease. Safirstein found pleural plaques on Patton's lungs, which were "a proxy for prior asbestos exposure," but did not indicate any disease. Ghio did not find any pleural plaques on Patton's lungs. He found only left-sided pleural abnormalities, which he maintained were associated with Patton's past exposure to tuberculosis (TB).
Ghio admitted, however, that he had seen no evidence that Patton ever suffered from an active TB outbreak. And, plaintiffs' expert, Daum, stated that Patton's positive tine test suggested only that he had been exposed to a bacteria from TB--not that he had ever actively suffered from the disease. Patton's testimony and other medical records suggest that he never had TB. Daum believed that the pleural plaques on Patton's lungs were caused by asbestos exposure.
Patton described his exposure to asbestos-related products. He indicated that before working at the mills, he worked for Johns-Manville for approximately six months in 1955, unloading 100-pound bags of asbestos from box cars. Although he may have been exposed to asbestos in that employment, he believed his job at Riegel was the primary source of his exposure.
As in the case of Grube and Wilson, Patton acknowledged that, at the mills, he was exposed to asbestos-containing gaskets, pumps, packing, asbestos cement, asbestos joint compound and other unidentified products manufactured or supplied by various other named defendants in this action.
As for Wilson, he was diagnosed with stage four lung cancer in 2000. He had been a heavy smoker, smoking between one and two packs per day until he quit in 1990. He underwent debilitating chemotherapy treatments, and the cancer went into remission for a period of time. However, it recurred in his spine and his liver, and it did not respond to radiation and chemotherapy. His health continued to fail, and he ultimately died from the cancer on May 28, 2002.
In a certification, Wilson alleged that during his working years he was exposed to asbestos cements manufactured by Johns-Manville, Philip Carey, Eagle-Picher and many other companies whose names he could not recall. He also claimed he was exposed to "other types of asbestos insulation materials," but he did not name any companies who manufactured or supplied those products.
Jeanette was married to Wilson for forty years, and they had four sons together. Theirs was a closely knit family, and Wilson was an excellent husband, father and grandfather. Jeanette missed the strength, love and companionship Wilson provided to her, and she wished he could be there to help her raise their fourteen year old grandson.
Newman stated that, in combination, smoking and occupational asbestos exposure, including exposure to Scapa's asbestos-containing dryer felts, were the co-carcinogens that contributed to Wilson's death from metastatic lung cancer. By contrast, Ghio opined that Wilson did not have any asbestos-related lung disease; rather, the sole cause of his lung disease was his smoking.
Grube, a non-smoker, was diagnosed with mesothelioma in November 2001. He died of the disease in November 2002, at the age of eighty-three.
Plaintiffs' medical expert, Dikman, opined that the cause of Grube's mesothelioma and death was asbestos exposure. He further stated that Scapa's asbestos-containing dryer felts could have been a substantial contributing factor in causing Grube's disease, although he acknowledged that Grube had a history of multiple asbestos exposures.
Grube's coworker and fellow plaintiff, Becker, described Grube as a strong but gentle man. "He was the kind of man that he didn't need a backhoe to come in and put an in-the-ground swimming pool. He dug it by hand and put the liner in." Grube's daughter, Linda Cole, explained that this was not hyperbole; her father actually had dug a hole and built an in-ground pool in his backyard.
Cole described her father as hardworking and "happy-go-lucky." She said he "always had a smile on his face." He was active throughout his life, playing baseball and golf, hunting, fishing, gardening and working on the house he had built. He had been in the Navy during World War II, and later in life he was active with the VFW. As a young man, he also was a great baseball player. He was offered an opportunity to sign with the St. Louis Cardinals, but he chose instead to marry and stay in New Jersey. He was a devoted husband, father, grandfather and great-grandfather to seven great-grandchildren. Cole stated that her father provided for her in many ways. For example, in the 1960s and 1970s, at her house, he laid sidewalks and built a stone wall, a fireplace, a bar and a deck.
After Grube moved to Florida in 1990, Cole remained close to him. They spoke two times per week, she visited him for two or three weeks in the winter, and he spent a few weeks with her every summer. He often gave her advice about how to fix things that broke around her house. And, he gave her son tips on baseball, pitching in particular.
After his mesothelioma diagnosis, Grube moved back to New Jersey to live with Cole. He was upset by the move because he was an independent, strong and active man, and he enjoyed his life in Florida. When he learned that there was no cure for his disease and the only treatments available were radiation and chemotherapy, he chose to forego treatment altogether because he had seen the effects these treatments had had on his wife, who died of cancer in 1989. However, he continued to be monitored by doctors. As the disease progressed, he suffered from weakness, shortness of breath, social withdrawal, lost appetite, severe weight loss and significant pain, although he stoically refused pain medication until two days before his death.
Joseph Becker, an unsuccessful plaintiff, stated that, at the mills, he and Grube were exposed to asbestos-containing packing materials, equipment, valves, gaskets, as well as materials used in the construction and maintenance of the plant, all manufactured or supplied by various other named defendants in this action aside from Scapa.
After several days of deliberations, the jury rendered its verdict. While rejecting the claims of Becker and Gardner, the jury found in favor of Patton, Wilson and Grube. With respect to Patton, the jury found liability against Scapa but did not apportion any liability to other defendants. The jury awarded damages of $175,000 for past and future pain and suffering, $200,000 for future medical monitoring and $125,000 for past and future fear of cancer. With respect to Wilson, the jury found liability against Scapa but no other defendants, although it attributed seventy percent of Wilson's injury/disease and death to his cigarette smoking. The jury awarded damages in the amount of $27,500 for pain and suffering, $10,000 for lost services, $8,000 for wrongful death and $200,000 for future financial loss. Finally, with respect to Grube, the jury found liability against Scapa but no other defendants, therefore resulting in no apportionment. The jury awarded damages of $50,000 for pain and suffering, $25,000 for wrongful death and $175,000 for future financial loss reduced to $73,250. On June 25, 2007, the judge entered a final judgment including interest in favor of Patton in the total amount of $514,220; in favor of Wilson in the total amount of $76,102.01; and in favor of Grube in the total amount of $259,045.
Following the entry of the judgment, Scapa moved for a new trial or, alternatively, for remittitur, which the judge denied. This appeal followed.
On appeal, Scapa challenges the awards to Grube's daughter, Linda Cole, and to Patton for future medical monitoring as excessive and against the weight of the evidence. It also asserts that the failure of the jury to allocate any liability to others was also against the weight of the evidence. Finally, it asserts that there were a number of trial errors that cumulatively, resulted in prejudice to Scapa and warrant a new trial.
We first address the award to Grube's daughter, Linda Cole. The jury awarded Cole $200,000 for the loss of her father's services. The allocation of the award was $25,000 for wrongful death from the date of death to trial and $175,000 for future financial loss. Defendant complains that the award is unreasonable given Grube's age, eighty-three, life expectancy (7.3 years) and absent proof as to the economic value of his lost services.
Rule 4:49-1(a), provides that the trial judge shall grant a motion for a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." Similarly, reviewing the denial of a motion for a new trial because the jury verdict was against the weight of the evidence, we will not reverse "unless it clearly appears there was a miscarriage of justice under the law." R. 2:10-1; Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). See also Crawn v. Campo, 136 N.J. 494, 512 (1994) (noting that the standard for authorizing new trial "requires a determination that the jury's verdict is 'contrary to the weight of the evidence or clearly the product of mistake, passion, prejudice or partiality'") (quoting Lanzet v. Greenberg, 126 N.J. 168, 175 (1991)). Reviewing courts are cautioned that it "should not interfere with the quantum of damages assessed by a jury unless it is so disproportionate to the injury and resulting disability shown as to shock" the judicial conscience such that "to sustain the award would be manifestly unjust." Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977). Accord Johnson v. Scaccetti, 192 N.J. 256, 280 (2007).
A court may not substitute its judgment for that of the jury. Dolson, supra, 55 N.J. at 6; Schaefer v. Cedar Fair, L.P., 348 N.J. Super. 223, 240 (App. Div. 2002). Instead, the court must "accept as true all evidence supporting the jury's verdict and . . . draw all reasonable inferences in its favor wherever reasonable minds could differ." Harper-Lawrence, Inc. v. United Merchs. & Mfrs., Inc., 261 N.J. Super. 554, 559 (App. Div.) (citing Dolson, supra, 55 N.J. at 5), certif. denied, 134 N.J. 478 (1993). "In deciding whether to grant a remittitur, the court must accept the evidence in the light most favorable to the plaintiff, Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 236 (1971), overruled on other grounds by, Fertile v. St. Michael's Med. Ctr., 169 N.J. 481 (2001) and must articulate its reasons for reducing a damages award by reference to the trial record." Johnson, supra, 192 N.J. at 281. In making its decision, "the Court may rely on its knowledge of other jury verdicts, Fertile, supra, 169 N.J. at 500-01, [however] if it does so, it must give a factual analysis of how the award is different or similar to others to which it is compared." Johnson, supra, 192 N.J. at 281 (emphasis added). Moreover, where certain intangible factors are important, such as witness credibility, demeanor and the "feel of the case," we must give deference to the views of the trial judge. D.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26 (App. Div.), certif. denied, 196 N.J. 346 (2008), cert. denied, 129 S. Ct. 776, 172 L. Ed. 2d 756 (2008).
This was a wrongful death action and guidance is provided by the statute. N.J.S.A. 2A:31-5 provides that:
In every action brought under the provisions of [the Wrongful Death Act] the jury may give such damages as they shall deem fair and just with reference to the pecuniary injuries resulting from such death, together with the hospital, medical and funeral expenses incurred for the deceased, to the persons entitled to any intestate personal property of the decedent . . . .
Damages are limited to pecuniary losses, such as the loss of companionship, guidance, advice and counsel. Johnson v. Dobrosky, 187 N.J. 594, 605 (2006); Green v. Bittner, 85 N.J. 1, 14 (1980); Jablonowska v. Suther, 390 N.J. Super. 395, 402-03 (App. Div. 2007), rev'd on other grounds, 195 N.J. 91 (2008); Brown v. Kennedy Mem'l Hosp.-Univ. Med. Ctr., 312 N.J. Super. 579, 593-94 (App. Div.), certif. denied, 156 N.J. 426 (1998); Alfone v. Sarno, 168 N.J. Super. 315, 321-22 (App. Div. 1979), modified, 87 N.J. 99 (1981).
The loss of a parent, no matter how old, implicates additional considerations.
In the case of a parent's death, in addition to the usual losses clearly having a monetary value, the law allows damages to be awarded to the surviving children for the loss of guidance and counsel which they might otherwise have received from the parent. The cases do not suggest that the calculation of such damages must cease after the child reaches majority. They are based on an ongoing relationship which exists in fact, regardless of any lack of legal duty on the part of the parent to render such guidance and despite the difficulty of placing a dollar value on it.
[Green, supra, 85 N.J. at 7-8.]
The Court elaborated:
It is not the loss simply of the exchange of views, no matter how perceptive, when child and parent are together; it is certainly not the loss of the pleasure which accompanies such an exchange. Rather, it is the loss of that kind of guidance, advice and counsel which all of us need from time to time in particular situations, for specific purposes, perhaps as an aid in making a business decision, or a decision affecting our lives generally, or even advice and guidance needed to relieve us from unremitting depression.[] It must be the kind of advice, guidance or counsel that could be purchased from a business adviser, a therapist, or a trained counselor, for instance.
[Id. at 14 (footnote omitted).]
While expert testimony is useful to avoid a speculative damage award, it is not necessary. Id. at 17; Jablonowska, supra, 390 N.J. Super. at 403; Brown, supra, 312 N.J. Super. at 593-94; Correia v. Sherry, 335 N.J. Super. 60, 69 (Law Div. 2000). Indeed, the Supreme Court has recognized that the level of proof necessary to sustain a claim for wrongful death damages is relatively low.
In Green, supra, 85 N.J. at 8, the Court noted that "[s]uch damages are regularly allowed despite the total lack of proof of such dollar value and of the probability that such guidance and counsel would in fact have been rendered." The Court further stated:
When a parent dies and loss of advice, guidance and counsel is allowed to the surviving children, . . . the proof that suffices is the parent-child relationship and what we assume the jury can conclude from that relationship alone. Damages are allowed without any showing that the parent had actually been rendering valuable advice, or was likely to do so . . . .
[Id. at 15.]
While the judge noted the "weakness" of this wrongful death action, she correctly denied the motion. Grube, as a father, provided services that may not be easily quantified but well support a relatively modest award. Even in his later years, he performed services around Cole's home including gardening, home repairs and construction. During the winter months, Grube and Cole spoke twice per week, and as an accomplished baseball player, Grube was able to provide pitching advice and assistance to his grandson. The award of $200,000 for these services does not shock our conscience even in the absence of expert testimony as to value, and the jury was entitled to rely upon its common sense in valuing these services. See, e.g., Jablonowska, supra, 390 N.J. Super. at 402-03 (upholding $200,000 wrongful death verdict based solely upon surviving daughter's testimony).
We likewise reject Scapa's argument that the award failed to reflect that Grube's life expectancy was only 7.3 years. The life expectancy figure was merely an "assumption[] based on actuarially-calculated statistics," and any given plaintiff "may live a lot longer than the life expectancy." See Kurak v. A.P. Green Refractories Co., 298 N.J. Super. 304, 326-27 (App. Div.) (finding no error in including model life expectancy charge in jury instructions; life expectancy figures are admissible in combination with charge instructing jury that figures are not controlling) (citing Budd v. Erie Lackawanna R.R. Co., 98 N.J. Super. 47, 53-54 (App. Div. 1967), certif. denied, 51 N.J. 186 (1968)), certif. denied, 152 N.J. 10 (1997). Grube was described as an active and independent person. He was a vital part of his family, and the jury could have reasonably believed that, even with cancer, he would live past his predicted life expectancy and continue to provide valuable services to Cole.
The evidence and all legitimate inferences that may be deduced therefrom sustain the loss of services damage award to Cole. The motion for judgment was properly denied, and we perceive no miscarriage of justice warranting reversal.
We reach the same result with reference to Patton's medical monitoring damages. Scapa asserts that the jury's damage award to Patton, of $200,000 for future medical monitoring, is excessive, speculative and against the weight of the evidence, particularly given his life expectancy of only 12.1 years. It seeks reversal and remand for a new trial on this issue, or, alternatively, remittitur.
The issue of medical monitoring damages first emerged in the context of toxic torts. The Supreme Court defined these damages as "specific monetary damages measured by the cost of periodic medical examinations. The invasion for which redress is sought is the fact that plaintiffs have been advised to spend money for medical tests, a cost they would not have incurred absent their exposure to toxic chemicals." Ayers v. Twp. of Jackson, 106 N.J. 557, 591 (1987). The Court found that medical monitoring damages are "consistent with well-accepted legal principles" and "the important public health interest in fostering access to medical testing for individuals whose exposure to toxic chemicals creates an enhanced risk of disease." Id. at 603. They also serve as a deterrent to polluters, and place the "reasonable and necessary" cost of medical monitoring on the appropriate party. Id. at 604-05.
The applicable legal standard, governing the recovery of such damages, is as follows:
[T]he cost of medical surveillance is a compensable item of damages where the proofs demonstrate, through reliable expert testimony predicated upon the significance and extent of exposure to chemicals, the toxicity of the chemicals, the seriousness of the diseases for which individuals are at risk, the relative increase in the chance of onset of disease in those exposed, and the value of early diagnosis, that such surveillance to monitor the effect of exposure to toxic chemicals is reasonable and necessary.
[Id. at 606.]
Under this standard, "[e]ven if the likelihood that [] plaintiffs would contract cancer were [sic] only slightly higher than the national average, medical intervention may be completely appropriate in view of the attendant circumstances." Ibid.
The holding in Ayers has been extended to "plaintiffs who have suffered increased risk of cancer when directly exposed to a defective or hazardous product like asbestos, when they have already suffered a manifest injury or condition caused by that exposure, and whose risk of cancer is attributable to the exposure." Theer v. Philip Carey Co., 133 N.J. 610, 627 (1993). Accord Mauro v. Raymark Indus., Inc., 116 N.J. 126, 144-45 (1989).
Here, the proofs demonstrated that asbestosis, cancer and mesothelioma are all progressive diseases that have long latency periods. The only intervention available for someone like Patton, who had been exposed to asbestos and showed some evidence of pleural changes resulting from that exposure, was medical monitoring through doctor's visits, colonoscopies, pulmonary function tests, x-rays, CT scans and PET scans.
Dikman indicated that these diagnostic tests could be ordered on a frequent basis; some clinicians order them every several months. Patton informed the jury that he was diligent about undergoing regular diagnostic testing since he had witnessed his brother die from asbestos-related disease, and he was very frightened for his own life. Moreover, the cost of the testing could be high, with CT scans costing approximately $1,000 and PET scans even more expensive.
This, too, was a relatively modest award. A reasonable juror understands the impact and necessity of medical monitoring even without personally experiencing the impact of asbestos-related diseases. The jury could also conclude that Patton would exceed his predicted life expectancy of 12.1 years. This award does not shock the judicial conscience and is affirmed.
As to the issue of apportionment, Scapa argues that the failure to find apportionment of liability was against the weight of the evidence. The jury unanimously found no apportionment and in the post-trial motion, Judge McCormick said:
The next point deals with the other . . . parties on the verdict sheet. The failure to allocate to other companies on the verdict sheet. In this regard too I went back and I looked at the Jury questionnaire. Let me start out by saying that it is without a question that it is . . . defendant[']s burden to prove every single aspect of the case against the additional parties on the verdict sheet. Just as it is plaintiff's burden to prove all those elements against the defendant.
Based on the evidence I heard, I would have found absolutely zero liability with respect to the additional parties on the verdict sheet. It is my view the evidence that I heard elicited regarding these other entities with respect to every single plaintiff was not even close to sustaining the defendant['s] burden of proving a case against these particular entities.
In this case, in all of these cases what happened is the Jury answered the first question with respect to each of these other entities. And their question was has Scapa proven that plaintiff used and/or worked around an asbestos containing product manufactured, sold, or distributed by blank during his career.
Now, defendants are correct. There was testimony, whether it be by way of interrogatory, direct testimony, by one of the plaintiff[']s on the stand that they believed that they worked around an asbestos containing product of particular of these companies. There is no question in my mind that despite that evidence, there was no proof that they worked around these products on a regular [basis], frequent in close proximity. Nothing at all.
And even with respect to the lesser standard that I have imposed with respect to a Mesothelioma plaintiff that there was substantial exposure to the asbestos containing product, which I view as a lesser standard than -- there was no proof or testimony or discussion about that at all during the course of this trial.
Whether that means that the Jury should have answered [question] number one no or whether it means it should have answered [question] number four, no. I'm not sure. It is clear to me that what the Jury did is they heard my instructions about the level of exposure. And they used the level of exposure in evaluating their answer to number one. And they said no. And once you evaluate the level of exposure in the context of the required proofs, I also would have answered the question no.
So I do not believe that the result the Jury came to as to these other entities was against the weight of the evidence. As a matter of fact, it is my belief it was what the evidence showed.
[(Emphasis added).]
Judge McCormick correctly concluded that Scapa was not entitled to relief from the jury's determination and we see no basis for our intervention as to that issue.
Finally, Scapa argues that cumulative trial errors resulted in harmful error, warranting reversal of the judgments under Rule 2:10-2. We find no merit in this argument.
The doctrine of cumulative error recognizes that "although an error or series of errors might not individually amount to plain error, in combination they can cast sufficient doubt upon the verdict to warrant reversal." State v. Reddish, 181 N.J. 553, 615 (2004). Accord Biruk v. Wilson, 50 N.J. 253, 262 (1967). The standard for relief is high. "[T]he predicate for relief for cumulative error must be that the probable effect of the cumulative error was to render the underlying trial unfair." State v. Wakefield, 190 N.J. 397, 538 (2007), cert. denied, ___ U.S. ___, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
Scapa argues that the trial court erred by admitting two pieces of evidence, by allowing closing argument by plaintiffs' counsel, which related to the company's financial strength (its "deep pockets") and its knowledge and intent regarding the dangers of its asbestos-containing dryer felts. Defendant contends that this evidence and closing argument should have been excluded or stricken as irrelevant and prejudicial, because there was no claim for punitive damages. More specifically, defendant argues that the court erred by admitting: (1) P-37B, "a redacted Scapa budget report"; and (2) Exhibit 71987, "a multi-issue Scapa report arising out of a company representative's 1977 visit to U.S. and Canadian Scapa plants, and to a single paper mill in Ohio in 1977." Defendant further contends that the judge erred in allowing plaintiffs' counsel to argue in summation that defendant was blowing "smoke screens" in an attempt to avoid responsibility and to exhort the jury to "send a message" to defendant.
Exhibit P-37B is a Scapa budget report for 1979-1980, which evidenced domestic sales of both asbestos-containing and non-asbestos containing dryer felts. Plaintiffs sought introduction of the document in their case-in-chief. They argued that budget reports, in general, were admissible "to establish how much of Scapa's annual sales . . . were non-asbestos versus asbestos-containing." This was consistent with the pretrial order, in which plaintiffs "reserve[d] the right to introduce proofs at trial that the period during which Scapa manufactured asbestos-containing dryer felts was broader than 1958 to 1978." Defendant responded that budget reports were inadmissible because they were "related to budget and dollar numbers," there was no claim for punitive damages and "the financial condition of the company is completely irrelevant to the issue of liability."
The judge admitted the document over defendant's objection, finding that budget reports were relevant "[a]s general information of what percentage of the felts sold by Scapa were asbestos versus non-asbestos . . . ." The judge permitted redaction of the reports in order to eliminate dollar amounts, so the documents would show only "domestic sales of dryer felts so that there can be a comparison of what percentage of the felts sold were asbestos versus non-asbestos."
In presenting its case, Scapa took the position that Wilson could not have been exposed to any of its asbestos-containing dryer felts because he did not begin working at the Riegel mills until 1979, and defendant's master cards showed that no Scapa asbestos-containing dryer felts were used in the mills after 1977. Defense counsel made that argument to the jury both in her opening statement, and in her summation.
Exhibit P-37B challenged the premise of the argument and demonstrated that Scapa had substantial sales of asbestos-containing dryer felts after 1977. In his summation, plaintiffs' counsel pointed to P-37B, as well as other evidence, to cast doubt on defendant's assertion, and to argue that the master cards were incomplete and "it's more likely than not that there were more asbestos felts at Riegel Paper than those master cards show, and they were on those machines that our plaintiffs worked with."
Defense counsel did not object to that argument during summation but raised it in its post-trial motion. The judge denied the post-trial motion, stating that the exhibits were admitted
because Scapa took the position that there was no way their asbestos dryer felts could have been on the [Riegel] premises after 1978. -- and those two documents provided information where the Jury could conclude easily that asbestos dryer felts were being sold by Scapa into the 1980's. And easily could then have inferred and I'm going to go back to this. But I guess it was Mr. Patton.
I forget which one was the one who has active period problem until I get to the point, but easily could have been exposed even though his work date was not until 1979. But those documents were let in specifically to rebut Scapa's argument, no asbestos dryer felts on the [Riegel] premises. We stopped making them in 1978. Not possible. And those documents in my view completely discredited Scapa's arguments in that regard and certainly allowed the Jury to make other inferences based on all the other evidence about how long the dryer felts were used. That the dryer felts were cut up and used for other things, et cetera.
So I do not change my mind as to the admission of those exhibits. And you know any argument as to the extent that anyone would consider an error in my view . . . certainly was harmless and certainly the relevancy of those documents far outweighed any very small prejudice. And I don't think there was any to Scapa with respect to the admission of those documents.
In separate portions of its post-trial ruling, the court found: there was more than sufficient evidence that Wilson was exposed to defendant's asbestos-containing dryer felts despite his not having started employment with Riegel until 1979; and the overall verdict, with two of five plaintiffs no-caused, was fair and reasonable, and there was no miscarriage of justice.
We review evidentiary rulings for a "palpable abuse of discretion." Brennan v. Demello, 191 N.J. 18, 31 (2007) (citing Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). Reversal is unwarranted unless the trial judge's ruling was "so wide of the mark that a manifest denial of justice resulted." Wakefield, supra, 190 N.J. at 426 (quoting State v. Nolson, 173 N.J. 417, 470 (2002)).
Similarly, under Rule 2:10-2, "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." Plain error review requires proof of a "clear or obvious" error that "affected the outcome" of the trial. State v. Blanks, 313 N.J. Super. 55, 63-64 (App. Div. 1998).
Exhibit P-37B was clearly relevant to proving that Scapa sold significant numbers of asbestos-containing felts beyond 1977. This document, in conjunction with the testimony of witnesses and other documentary evidence, could lead the jury to reasonably infer that Scapa's asbestos-containing dryer felts were present at the Riegel mills beyond 1977, and plaintiffs were exposed to them, including Wilson. Plaintiffs did not utilize P-37B to establish defendant's size or the volume of its sales. There was no error here.
Scapa next complains about the admission of Exhibit 71987, a document titled "Visit to U.S.A. and Canada, 22nd February to 6th March, 1977." The exhibit denoting "Visits: Beloit, Wisconsin, Scapa, Joliette, Scapa Waycross" documented defendant's visits to various Scapa facilities. Of most significance, at page two of the document, it stated:
Waycross are planning to have asbestos out of all designs in 1977 and some are already being made in their non asbestos equivalents (eg. N1/9). The details of the changeover are NOT being discussed with sales and customers, to avoid the danger of customers not wanting to take felts already made and in stock at Waycross. This is a major project for Waycross as in 1975, 72% of all felts contained asbestos.
At trial, plaintiffs argued that the document was relevant to establish first, that "in 1975, 72 percent of all felts out of Waycross were asbestos-containing," and second, that defendant wanted "to push whatever the stock at Waycross was for sales up until the very end." Defendant objected to the document's admission, arguing that it "goes entirely to state of mind, which is a punitive damage issue, not a liability issue," and the contents of the document "where it talks about Scapa's state of mind, Scapa's marketing strategy, Scapa's sales strategy, as well as information regarding their market share and their profitability," were "unduly prejudicial."
The judge ruled that the document was admissible because the jury could reasonably infer from it that defendant's master cards were incomplete, and defendant sold asbestos-containing felts to Riegel even beyond the claimed date of 1977. The judge did not allow redaction of the sales strategy information because "there's an inference to be made from that, that they were pushing the asbestos felt to get rid of it."
In accordance with the judge's ruling, Exhibit 71987 was received into evidence. However, the only portion read to the jury was the excerpt from page two.
Plaintiffs' counsel referred to Exhibit 71987 in his closing argument (without any objection from the defense), stating:
Now, Scapa didn't tell us, didn't tell any of the plaintiffs, that their product had asbestos in it.
Scapa didn't consider the asbestos content and fiber release in its felts to be a danger to workers. You know what they did consider a danger, though? Remember this? 1977. They're talking about changing it over. And it says -- they're talking about Waycross, "The details of the changeover are not being discussed with Sales or customers, because -- excuse me -- to avoid the danger of customers not wanting to take felts already made and in stock."
They considered people knowing about the asbestos content the danger, not the fact that fibers could be released. So they weren't telling.
In the charge, the judge instructed the jury as follows with respect to counsels' arguments:
The lawyers here are advocates for their clients. In their opening statements and in their summations, they have given you their views of the evidence and their arguments in favor of their clients' position. While you may consider their comments, nothing that the attorneys say is evidence, and their comments are not binding on you.
As I previously told you, you are here as judges of the facts. You alone have the responsibility of deciding the factual issues in this case. It is your recollection and evaluation of the evidence that counts. If the attorneys or I say anything about the facts of this case that disagrees with your recollection of the evidence, it is your recollection that you should rely on.
Your decision in this case must be based solely on the evidence presented and my instructions on the law.
The judge instructed the jury as follows with respect to defendant's knowledge and intent:
Now, to the extent that there is any evidence that you believe relates to whether Scapa may have known, or should have known, that their product -- known about their product safety in the '50s, '60s or 70s, and so on, that evidence is irrelevant to this case, and cannot be considered by you, because your focus must be on the product.
In order to prove the element of product defect, the plaintiffs need not prove that the defendants knew the products were dangerous. The important issue here is whether the product is dangerous according to the evidence before you.
For this trial, you must legally assume that Scapa was aware of any danger which you decide the product had, and whether Scapa actually knew of the existence of the danger at the time they were making and selling the product is meaningless in this case.
I am not telling you that there was a danger. I am only telling you that if you find that there was a danger, then you must assume that Scapa was aware of any danger when it manufactured and sold the product.
In its post-trial motion, defendant argued that the erroneous admission of Exhibit 71987 (and other evidence) required a new trial. The judge rejected that argument for the same reasons attending the admission of Exhibit P-37B. We reach the same conclusion that the document was relevant to rebut defendant's argument that there were no Scapa asbestos-containing dryer felts at Riegel beyond 1977 and that plaintiffs could not have been exposed to the felts beyond that date. Defendant is correct that the document also relates to the question of its knowledge and intent, which was not a relevant issue because this was a strict liability case and plaintiffs did not seek punitive damages. See, e.g., N.J.S.A. 2A:15-5.12 (establishing the standard for imposing punitive damages, including the requirement that the defendant's "acts or omissions were actuated by actual malice or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by those acts or omissions"); Zaza v. Marquess & Nell, Inc., 144 N.J. 34, 49-50 (1996) (noting that in design defect and failure to warn strict liability cases, defendant's knowledge of defect is imputed); Fischer v. Johns-Manville Corp., 103 N.J. 643, 652-56 (1986) (observing that for purposes of liability, defendant's knowledge of product's harmfulness is assumed in strict liability failure to warn cases, but it may be relevant to punitive damages).
For that reason, plaintiffs' counsel clearly erred by using the document to make a knowledge-and-intent argument in his closing argument. However, there was no objection. Defense counsel's failure to object to this aspect of the summation, however, suggests that counsel did not perceive the comments as prejudicial at the time they were made. State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).
The court did not abuse its discretion in holding that, under N.J.R.E. 403, the probative value of Exhibit 71987 was not substantially outweighed by its potential for undue prejudice. Any prejudice arising from the contents of the document and plaintiffs' counsel's inappropriate remarks in summation, was alleviated by the court's jury instructions. See, e.g., State v. Burns, 192 N.J. 312, 335 (2007) ("One of the foundations of our jury system is that the jury is presumed to follow the trial court's instructions."). The jury's discrete verdict as to the five plaintiffs suggests to us that there was no prejudice against defendant.
Defendant next complains about two sets of comments made by plaintiffs' counsel in his summation. First, defendant complains about counsel's reference to its "smoke screen" to avoid responsibility, as follows:
MR. JEKEL: Wow. That was quite a story we heard from Mr. Young. I'd like to talk to -- I like to refer to it as Scapa's smoke screen.
Let's go over what Scapa wants you to believe.
And Scapa does this: First, plaintiffs are not sick. Okay? They aren't sick. No need to worry. But if they are sick, it's not from asbestos. It's from old age. It's from not being in condition. It's from tuberculosis.
But if they are sick from asbestos, it's not the dryer felts. It's all those other products. It's all that pipe insulation, and boiler stuff. It's not the dryer felts.
But if it is dryer felts, if dryer felts do release asbestos fibers, you know what? It's not our dryer felts.
Did you hear that?
And it doesn't make sense. It's counter intuitive, and it's not logical. But why does Scapa put up a smoke screen? Why do they give us all the different things to talk about? Because they are hoping you will latch on to one thing, and you another, and you another, and they do that because all they really care about today is avoiding responsibility. That's why they have the smoke screen.
. . . .
And again, Walter Patton does not have asbestos disease, it's tuberculosis.
Well, that's all part of the smoke screen.
. . . .
Now, Question 6. All right? Here's where we change. And trust me, we're getting close.
This question addresses companies other than Scapa. All right? This is the last part of the smoke screen.
[(Emphasis added).]
Defense counsel did not object to any of these comments at trial.
Second, defendant complains that plaintiffs' counsel urged the jury to "send a message" to defendant, as follows:
Now, what we need to do today, we would ask you to find all five plaintiffs, in favor of the plaintiffs, and tell Scapa that they do have responsibility, that they owed a responsibility to Mr. Grube and Mr. Wilson, Mr. Becker, Mr. Gardner and Mr. Patton to warn about the hazards of its products and to make sure you could use it safely, and you can send a message to Scapa and say, you know what, we do believe --
[(Emphasis added).]
Defense counsel objected to this comment at the time it was made, the judge sustained the objection and plaintiffs' counsel then quickly concluded his summation. Defense counsel did not request a curative instruction, and the judge did not issue one. As we previously noted, the judge instructed the jury that the arguments of counsel were not evidence.
The law on this issue is well-settled. Counsel's summations are expected to be passionate, "for indeed it is the duty of a trial attorney to advocate." Geler v. Akawie, 358 N.J. Super. 437, 463 (App. Div.), certif. denied, 177 N.J. 223 (2003). At the same time, however, summations should be fair and courteous, grounded in the evidence and free from any "potential to cause injustice," ibid., such as "[u]nfair and prejudicial appeals to emotion," id. at 468, and "insinuations of bad faith on the part of defendants who sought to resolve by trial validly contested claims against them." Id. at 469. Accord Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 171-72 (App. Div. 2004); Henker v. Preybylowski, 216 N.J. Super. 513, 518-20 (App. Div. 1987).
Fleeting comments, even if improper, may not warrant reversal, particularly where the verdict is fair. See, e.g., Dolan v. Sea Transfer Corp., 398 N.J. Super. 313, 332 (App. Div.), certif. denied, 195 N.J. 520 (2008). Moreover, the "[f]ailure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made" and "also deprives the court of the opportunity to take curative action." Timmendequas, supra, 161 N.J. at 576. Generally, where defense counsel has not objected, we will not reverse unless plain error is shown. R. 2:10-2. We deem plaintiffs' "smoke screen" arguments the edge of appropriate advocacy; however, exhortations to "send a message" have been declared inappropriate in the context of criminal cases, State v. Rose, 112 N.J. 454, 520-21 (1988), while we have suggested that they may be permissible in the context of punitive damages cases. Tarr v. Bob Ciasulli's Mack Auto Mall, Inc., 390 N.J. Super. 557, 569, n.3 (App. Div. 2007), aff'd, 194 N.J. 212 (2008).
Although some federal cases have found no prejudicial error from "send a message" comments that were made in civil cases, (not in the context of requests for punitive damages), see, e.g., Dixon v. Int'l Harvester Co., 754 F.2d 573, 585-86 (5th Cir. 1985); Kukla v. Syfus Leasing Corp., 928 F. Supp. 1328, 1338 n.5 (S.D.N.Y. 1996); Griffith v. Mt. Carmel Med. Ctr., 842 F. Supp. 1359, 1362-63 (D. Kan. 1994), we deem the better practice to be avoidance of such comments. Liability and compensatory damages should be determined on the merits of the particular facts before the jury. Where there is liability the object of a trial is to compensate for loss rather than to punish. Suggesting "sending a message" is an invitation to exact retribution rather than just compensation. It had no place in this case.
Notwithstanding our expressed concern, we deem the error to be harmless. It was a fleeting comment, defense counsel objected to it, and the court sustained the objection. Although no curative instruction was given, defense counsel did not request such an instruction. Rule 1:7-2 provides an appropriate remedy to counsel when there is such error:
For the purpose of reserving questions for review or appeal relating to rulings or orders of the court or instructions to the jury, a party, at the time the ruling or order is made or sought, shall make known to the court specifically the action which the party desires the court to take or the party's objection to the action taken and the grounds therefor. Except as otherwise provided by R. 1:7-5 and R. 2:10-2 (plain error), no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict . . . [.]
No charge was requested and the judge acted swiftly to alleviate any prejudice to defendant, in addition to instructing the jury regarding the arguments of counsel. The jury's mixed verdict supports a conclusion that defendant was not prejudiced by the remark. The failure to give a curative instruction was not plain error. R. 1:7-2; R. 1:7-5; R. 2:10-2.
Defendant argues that the trial court erred by refusing to admit bankruptcy proof of claim forms that were filed by plaintiffs' counsel on plaintiffs' behalf. It contends the forms contained admissions by plaintiffs as to the other asbestos-containing materials to which they were exposed. Therefore, the documents were relevant to the issue of apportionment and admissible under N.J.R.E. 803(b)(3) and (4). It claims this evidentiary error was prejudicial because the jury rejected any apportionment, and it requests reversal and remand for a new trial.
While the admissibility of these forms raises substantial issues, we deem the judge's refusal to allow the forms into evidence as harmless. We first note that the judge agreed that the affidavits attached to the forms could be used on cross-examination. Additionally, the proof of claim forms were duplicative of evidence of plaintiffs' exposure to asbestos. There is, however, a more fundamental reason why the exclusion of the form was harmless. As the judge commented, defendant's proofs as to apportionment were woefully lacking as to all elements. These proof of claim forms only establish, at best, one element - exposure - and admission of the form itself, would not have changed the result. Any error here is harmless.
Finally, defendant argues that the trial judge erred in permitting plaintiffs' expert in industrial hygiene, Paskal, to testify to net opinions "that were beyond the scope of his expertise, not scientifically reliable, not based on scientific data, and not a product of scientific studies." In particular, defendant complains that Paskal should not have been permitted to testify: (1) "that the Riegel Paper mills contained asbestos that could be inhaled by Plaintiffs"; (2) "that the Riegel Paper mills contained asbestos-containing dryer felts"; and (3) "about reentrainment," the process of settled dust being recirculated in the air.
The record reflects that, at the last minute, Paskal was substituted for plaintiffs' original industrial hygiene expert, Richard Hatfield, who was unable to testify because he had suffered a heart attack shortly before trial. Defendant was agreeable to the substitution, and defense counsel had an opportunity to depose Paskal before he testified at trial.
There were disputes, however, as to the scope of Paskal's testimony. Plaintiffs intended for Paskal to testify that the asbestos fibers released from dryer felts (as testified to by Millette) would get into the breathing zones of paper mill workers and be inhaled by them. Defendant objected to Paskal's reliance on reports and studies published by other experts, which defendant maintained were hearsay; defendant also argued that, to the extent Paskal relied on Millette's studies, his testimony would be cumulative. To the extent Paskal's opinions were not based upon any scientific data or articles, defendant argued that his opinions were inadmissible net opinions. Further, defendant objected to Paskal providing any plaintiff-specific opinions, because he did not know what any of the plaintiffs did in the Riegel mills.
Judge McCormick ruled that Paskal could not rely upon one objectionable report, but he could rely on Millette's studies. She rejected defendant's argument that his opinions were net opinions. Plaintiffs' counsel foreswore any intention that Paskal would provide plaintiff-specific opinions, except by way of hypothetical questions.
Paskal's work as an industrial hygienist consists of identifying harmful workplace exposures to such things as carcinogenic dust or chemicals, and assisting employers in either the elimination of such exposures, or reducing and managing the risk of such exposures, in order to prevent disease. He has an interest in "[a]erosol physics," in particular, the study of what happens to "the smaller particles that are rendered airborne from different activities, where do they go, how long do they linger in the air, how deep into the lung might they be breathed, what percentage going into the lung will stay there."
He had significant education, training and experience in studying and assessing workplace asbestos exposures. He also had visited paper mills in California, Virginia and Arkansas with a few of those visits related to asbestos exposure, and he had a general understanding of the work performed in paper mills and of the asbestos-containing products used within those mills, including dryer felts.
He admitted that he had never visited the Riegel mills, in particular, nor had he ever spoken to any of the plaintiffs in the present litigation. He had no knowledge of plaintiffs' dates of employment or their specific job responsibilities, nor did he have any knowledge of Riegel's use of Scapa's asbestos-containing dryer felts. However, in his personal experience, and based upon his review of scientific studies, the use of dryer felts in the paper-making process was essentially the same from one mill to another. Therefore, he felt competent to talk in general about the potential for exposure to asbestos in a paper mill arising from the use of such felts.
He stated that asbestos presents primarily an inhalation hazard, meaning that the fiber's "principal route into the body, whereby it can start to cause damage, is by breathing it." This occurs if asbestos fibers are in a person's breathing zone, meaning the space "about ten inches to a foot, sort of a sphere around the mouth."
Based upon his own experience, and based upon scientific studies done by others with which he was familiar (including Millette's study, and a study done by R.J. Lee Associates), Paskal believed that the asbestos present in a paper mill from dryer felts was: friable (capable of being bent or shaped); not isolated; capable of being disturbed; and capable of being breathed. He stated that individuals regularly in the vicinity of the blow-down of a paper machine could be exposed to substantial amounts of breathable asbestos fibers released from a dryer felt, as could anybody regularly exposed to any activity that imparted energy against a dryer felt, i.e. (shaking, cutting, tearing, putting it on vibrating surfaces or running it through a paper machine). Moreover, such occupational exposure would create a significant risk for the development of asbestos disease. He admitted, however, that environmental conditions at the dryer end of a paper machine, for example, heat, humidity and ventilation, would affect the ability of asbestos fibers from a dryer felt to become airborne and respirable.
Finally, over defense counsel's objection, Paskal opined that, with the release of asbestos fibers, there was a risk of reentrainment. The released fibers would became airborne, then settle out, and then "[s]ubsequent vibration and/or gusts of air, or walking over it, or sweeping it, or what have you, put it back up into the air," making it "available for rebreathing" and creating "a secondary hazard."
Post-trial, defendant moved for a new trial, in part, on the ground that Paskal's opinions were impermissible net opinions, based solely upon his own personal views and unsupported by any facts in the record. Judge McCormick concluded that Paskal was properly qualified as an expert, and he testified based upon his general knowledge and experience, giving reasons for all of his opinions; therefore, they were not net opinions. The judge denied the motion.
In the present appeal, defendant first complains that Paskal should not have been allowed to testify that the Riegel mills contained asbestos that could be inhaled by plaintiffs, because the only basis for this opinion was his experience in other paper mills that he had visited, and his knowledge that asbestos was used in numerous industrial products. He had no specific knowledge of the Riegel mills, or the use of asbestos in dryer felts.
Next, defendant similarly complains that Paskal should not have been permitted to testify that the Riegel mills contained asbestos-containing dryer felts, because his testimony was based only on his experience with generic dryer felts, and not the Scapa felts used at the Riegel mills.
Finally, defendant argues that Paskal should not have been permitted to testify about reentrainment because it is not a "readily known concept." We reject these arguments, as they are not supported by the governing law or the evidentiary record.
"Whether expert testimony is admissible rests in the trial court's sound discretion." See Hisenaj v. Kuehner, 194 N.J. 6, 16 (2008) (observing that "trial courts are expected to act as gatekeepers to the proper admission of expert testimony" and "an abuse-of-discretion standard of review applies to the resultant admissibility determination made by the trial court"); State v. Summers, 176 N.J. 306, 312 (2003). Under N.J.R.E. 702: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise." And, under N.J.R.E. 703:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
To be admissible, expert opinions must be supported by facts. Net opinions, which are inadmissible, are bare conclusions, not supported by factual evidence. State v. Fortin, 189 N.J. 579, 609-10 (2007); State v. Townsend, 186 N.J. 473, 494 (2006); Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). "[T]he net opinion rule requires an expert witness to give the why and wherefore of his expert opinion, not just a mere conclusion." Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996).
Here, contrary to defendant's argument, Paskal's testimony was not used to prove any negligence on the part of Riegel based upon his experience with other paper mills. We distinguish this case from Bahrle v. Exxon Corp., 279 N.J. Super. 5, 28-31 (App. Div. 1995), aff'd, 145 N.J. 144 (1996), relied on by Scapa, in which the trial judge correctly barred the testimony of an expert who attempted to show the defendants' negligence in allowing spilled gasoline to seep into the groundwater solely through his knowledge of the negligence of other service station operators.
Paskal stated only that asbestos fibers released from dryer felts used in the paper-making industry would be inhaled by workers in the general vicinity of the felts. His testimony was of a scientific nature related to the general conduct of asbestos fibers when released into the air in a paper factory, not about the specific conduct of Riegel or any of its employees. The purpose of his testimony was to serve as a bridge beyond Millette's testimony that Scapa's asbestos-containing dryer felts released asbestos fibers into the air, and plaintiffs' testimony that, during the course of their employment at Riegel, in working with Scapa's asbestos-containing dryer felts, they witnessed asbestos fibers released into the air.
Paskal's opinion was based upon his personal knowledge and experience as an industrial hygienist, as well as the scientific studies with which he was familiar, and the testimony previously given at trial as to events in the Riegel mills. His opinion was not a net opinion, and Judge McCormick did not err in admitting his testimony.
Defendant's final complaint is that Paskal should not have been allowed to testify on the subject of reentrainment because it was not in his expert report, and because it introduced "an entirely new concept into this trial." The judge allowed this testimony on the ground that reentrainment was a basic concept of industrial hygiene, it was within the scope of an industrial hygienist's knowledge and it was an "implicit part" of Paskal's report.
We find no error. Reentrainment appears to be a basic concept clearly within Paskal's knowledge as an industrial hygienist, and it would hardly have been surprising to defendant that he testified to this subject at trial. Indeed, defendant is in error when it contends that Paskal's testimony on reentrainment introduced a new concept to the trial; Millette testified to reentrainment in his testimony as well.
We conclude that defendant's various claims of error are without merit, the jury verdict was based on substantial evidence in the record and no grounds are presented to disturb the jury's consideration of this matter.
Affirmed.
On the covers of their appellate briefs and appendices, the parties identify the lower court docket numbers from which this appeal is taken as MID-L-5603-01AS, MID-L-5462-01AS and MID-L-5727-02AS. However, a review of the pleadings from below, and the notice of appeal, suggests that the second docket number, relating to Wilson, is actually L-5653-01AS.
For ease of reference, we refer to Ms. Wilson by her first name.
The various awards consist of discrete elements and findings, together with pre-judgment interest. The breakdown of the awards will be discussed, infra.
The machines were up to fourteen feet wide or wider, and they were hundreds of feet long.
Asbestos is a fibrous mineral derived from rock, which has "excellent resistance to heat and acid." Scapa "was the first felt manufacturer to discover and adopt the important functions of asbestos as a material for use in dryer felts." Individual chrysotile asbestos fibers (the type of asbestos most common in North America), range in size only between .5 to eight microns long. "Due to the short length of the asbestos fiber, it is not possible to spin a pure asbestos yarn with sufficient strength to warrant its use in dryer clothing." Therefore, the asbestos fibers were weaved with other fibers, such as polyester or cotton to produce a felt that had the consistency of a canvas material.
The challenges to Wilson's award are generally included in the alleged trial error. We need not discuss the quantum of his award as it was clearly supported by the evidence.
Plaintiff asserts that this argument is not cognizable on appeal because defendant did not move for a new trial on this basis. Since we affirm on the merits, we need not address this issue.
The Supreme Court, by summary order, recently reiterated the necessity of a Johnson, supra, analysis when a trial court grants a remittitur. He v. Miller, ___ N.J. ___, slip op. at 1 (June 5, 2009).
In a footnote at page 16 of its brief, Scapa also complains that the jury was not charged on how to determine present value of future damages. The issue was not raised below; no objection was raised to the charge on this issue; and we decline to address the issue for the first time on this appeal. R. 1:7-2; R. 2:10-2.
Interestingly, defendant itself interjected knowledge-and-intent evidence at trial. For example, defense counsel asked a Scapa representative:
Q. Mr. Fearnhead, did Scapa believe that asbestos-containing dryer felts would cause a hazard to workers at commercial paper mills from a fiber release standpoint?
A. No.
All of the cited cases recognize that the comment is inappropriate but may not warrant reversal in a given case.
(continued)
(continued)
77
A-0312-07T1
July 31, 2009
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