SUSAN M. BUTTITTA v. ALLIED SIGNAL, INC.Annotate this Case
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-5263-07T1 A-5268-07T1
SUSAN M. BUTTITTA, Individually
and as Executrix to the Estate
of MARK BUTTITTA,
ALLIED SIGNAL, INC., ALLIED
CORPORATION, ALMA PRODUCTS CO.,
ASBESTOS FIBRE CORP., BORG &
BECK, C.L. ZIMMERMAN CO., C.L.
ZIMMERMAN of DELAWARE, a successor
corporation to C.L. ZIMMERMAN
COMPANY, GENERAL MOTORS CORP.,
HONEYWELL INTERNATIONAL, INC., a
successor corporation to ALLIED-
SIGNAL, INC., and as a successor
in interest to HONEYWELL INTER-
NATIONAL, INC. and BENDIX, LAKE
ASBESTOS OF QUEBEC, LTC., MULTI-
CHEVROLET, INC., NATIONAL GYPSUM CO.,
RAYMARK INDUSTRIAL DIVISION, UNION
CARBIDE CORP., UNION INSULATING CO.,
ABEX CORPORATION, AMCO, BONDALL
COMPANY, CANADIAN JOHNS-MANVILLE,
C. ITUH & CO. (AMERICA), INC.,
CARLISLE CORPORATION, DAIKIN, DELPHI
AUTOMOTIVE SYSTEMS, a/k/a DELPHI
CORPORATION, L.L.C., EATON BRAKE
DIVISION, EATON CORPORATION, FERODO,
FRICTION PRODUCTS DIVISION, ITT AMCO,
JOHN HASSALL, INC., KELSEY HAYES
COMPANY, KELSEY PRODUCTS DIVISION,
LUK, INC., MARSHALL ECLIPSE,
MULTIBESTOS, RAYBESTOS MANHATTAN,
INC., ROCKWELL AXLE DIVISION,
ROCKWELL BRAKE DIVISION, ROCKWELL
INTERNATIONAL, UNIBOND, UNIBOND
BRAKE, INC., UNIVERSAL FRICTION,
and WAGNER ELECTRIC CORPORATION,
ASBESTOS CORPORATION, LTD., and
Argued January 4, 2010 - Decided
Before Judges Axelrad, Fisher and
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9592-02.
Paul J. Zidlicky (Sidley Austin, L.L.P.) of the Washington, D.C. bar, admitted pro hac vice, argued the cause for appellant Borg-Warner Corporation (Hoagland, Longo, Moran, Dunst & Doukas, L.L.P., and Mr. Zidlicky, attorneys; Mr. Zidlicky, Carter G. Phillips (Sidley Austin, L.L.P.) of the Washington, D.C. bar, admitted pro hac vice, Timothy E. Kapshandy (Sidley Austin, L.L.P.) of the Washington, D.C. bar, admitted pro hac vice, Nora J. Grimbergen and Sarah E. Newsome, of counsel and on the brief).
Deborah M. Knight (Goldfein & Joseph) of the Pennsylvania bar, admitted pro hac vice, argued the cause for appellant Asbestos Corporation Limited (Madhurika Jeremiah and Ms. Knight, attorneys; Ms. Jeremiah, of counsel and on the brief; Brooke A. Bonett, on the brief).
Arnold C. Lakind argued the cause for respondent (Szaferman, Lakind, Blumstein & Blader, and Levy, Phillips & Konigsberg, attorneys; Mr. Lakind, Jeffrey P. Blumstein and Moshe Maimon, of counsel and on the brief).
Mark Buttitta died of mesothelioma, a rare and fatal cancer caused by exposure to asbestos. His widow, plaintiff Susan M. Buttitta, as personal representative of the estate, brought this action against numerous defendants, alleging that Mark contracted mesothelioma when directly exposed to asbestos at a General Motors (GM) warehouse, where he worked during several summers in the early 1970's, and indirectly, from contact with his father, who worked for GM from 1952 through the 1970's.
After the pretrial disposition of the claims against most of the defendants, a trial against the remaining defendants -- Borg-Warner Corporation, Asbestos Corporation Ltd. (ACL), C.L. Zimmerman Company (Zimmerman), and Honeywell International, Inc. and its predecessor, Bendix (collectively Honeywell/Bendix) -- was conducted in February 2008. Zimmerman and Honeywell/Bendix settled during trial. The jury returned a verdict in plaintiff's favor finding that Borg-Warner and ACL had manufactured, sold, or distributed a product not reasonably safe for its intended use, that Mark was exposed to the product, and that such exposure was a substantial contributing cause of his development of mesothelioma. The jury awarded plaintiff $8,000,000 for pain and suffering, $2,000,000 for loss of consortium, $9,281,660 for loss of earnings, $2,030,544 for loss of services, and $3,000,000 for each of their three daughters for loss of parental care and guidance.
In their separate appeals, which we dispose of in this single opinion, Borg-Warner and ACL raise numerous issues.
I. BORG-WARNER'S APPEAL
Borg-Warner argues that the judge erred in his rulings on: (a) causation; (b) the admission of plaintiff's expert testimony; (c) Borg-Warner's claims against settling defendants; and (d) its motion for a remittitur. After careful review, we find no error in any of the judge's rulings.
Borg-Warner contends that the trial judge erred in denying its motion for judgment, arguing that plaintiff failed to prove sufficient exposure to its asbestos-containing clutches to warrant a finding of "medical causation"; that is, that its product was a "substantial factor" in causing Mark's mesothelioma. Borg-Warner also argues that the jury's determination of "medical causation" was "tainted" by the judge's erroneous admission of the deposition of John Froning, the former manager of a GM production facility.
A motion for judgment may be made at the close of a plaintiff's case, Rule 4:37-2(b), at the close of all the evidence, Rule 4:40-1, and after the verdict, Rule 4:40-2(b). All three motions are governed by the same evidential standard: "'[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied . . . .'" Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)). We apply the same standard in reviewing a trial judge's ruling on such a motion. Estate of Roach, supra, 164 N.J. at 612.
In examining whether Borg-Warner was entitled to judgment, we must consider the evidence offered in support of plaintiff's claim, including, first, the extent of Mark's exposure to asbestos-related products.
Borg-Warner manufactured automotive parts, including disc type clutches, which were sold as a three-piece set that included a pressure plate, clutch disc and bearing. The clutch facing consisted of a disc of friction material attached to a clutch pressure plate. It was undisputed that in the 1970's the friction material in Borg-Warner clutches was made of chrysotile asbestos, and that no warnings were contained on the product or its packaging.
A 1972 study conducted by Borg-Warner revealed that its clutch manufacturing operations generated levels of airborne asbestos fibers in excess of the governing OSHA standards. The study found that a "significant amount of the total asbestos exposures is coming from the loose fibers that are on the clutch facings." It also found that its "clutch-facing inspector," who was operating in a generally clean area, "received an exposure that is higher than most other employees' exposures." The report recommended that all employees working with clutch facings wear respirators, and that the plant install a "rigid housekeeping program," including installation of a ventilation system and the prompt disposal of scrap and sweepings.
From the early 1960's to the early 1980's, Borg-Warner was one of the original equipment manufacturer (OEM) suppliers of clutch products to GM; that is, it supplied clutches for installation on the assembly line in new production vehicles. Borg-Warner later "disposed of its clutch operation" and destroyed its records relating to "its product sales to any General Motors facility in New Jersey."
However, Froning, the former manager of the clutch and manual transmission group at the GM power train division in Michigan, testified at depositions in an unrelated case, which were read to the jury here, that from the early 1960's to the mid-1980's Borg was GM's "prime" supplier of clutches, providing "virtually 100 percent" of the clutches installed in GM passenger cars and light trucks. Froning admitted his testimony was limited to clutches used in "new production," or OEM products, and that he did not know if GM used "different suppliers for clutch facings used in the aftermarket."
Mark Buttitta was born in December 1952. He worked as a "parts picker" at the GM distribution warehouses in Edgewater and Englewood during the summers of 1971 to 1973, and during his winter breaks while matriculating at Colgate University. As a summer employee, Mark was also responsible for sweeping the warehouse floor at the end of the shift. Mark worked with his father, who had been employed by GM since the 1940's. During the summer of 1971, Mark also worked with Frank Buttitta, Jr. (Frank, Jr.), his brother.
In his de bene esse deposition, played for the jury at trial, Mark testified that as a "parts picker," he, along with fifty to seventy-five other employees, were responsible for filling orders for parts submitted to GM by automobile dealers. The picker would retrieve parts from open racks or bins located at various locations within the "very busy" warehouse and place them in a cart. Some parts were packaged in boxes and some were stored loose on shelves. If the parts were packaged in a box, the parts picker would open the box, check to make sure it contained the correct parts and the required quantity, and then either remove the part or reseal the box for transport to the shipping area. Brakes were packaged in boxes containing four units; to fill an order, a parts picker would often retrieve one set of brakes from a box.
Mark said that, on some days, he would pick as many as fifty brake shoes or pads and twenty-five clutch pads or assemblies. Frank Ripley (Ripley), who had worked with Frank, Jr. and Mark at the GM warehouse, confirmed that brakes and clutches, which then contained asbestos, were the most common products picked at the warehouse.
Mark, Frank, Jr., and Ripley described the warehouse as being very dusty, with thick layers of dust on the shelves, boxes, and automotive parts, which became airborne when disturbed. The air was "stagnant" and there was visible dust "in the air." The warehouse had no windows and ventilation was poor. Mark wore street clothes to work; masks and respirators were not provided. He often returned home from work "covered with dust"; Frank said he came home covered in a "gray kind of dirt"; Ripley said that after a day working in the warehouse "you'd blow your nose in a handkerchief and you know there would be dust." Mark did not see any warnings on the boxes.
Mark recalled seeing GM, AC, Delco, Bendix, and Remme products, but did not name Borg-Warner. However, Frank gave the following testimony:
Q. During the time that you were a parts picker at GM, do you recall the brand names . . . on any of the boxes or the brakes . . . ?
A. Certainly I want to say Bendix. I remember AC, Delco, I believe that, at least at that time, was owned by General Motors, so that was quite a frequent name on boxes there.
Q. Any others that you recall?
. . . .
A. For brakes. Primarily Bendix, I believe.
Q. Are there other names of manu-facturers or brands . . . that you recall, but you don't know what specific products they were on?
A. I want to say Raybestos. I . . . mentioned AC Delco. I want to say Borg Warner too.
Ripley also identified Borg-Warner as a supplier of clutches and brakes:
Q. . . . [D]o you recall the brand names associated with [clutches and brakes] that you saw at the warehouse?
A. Yes, I remember the brand names. General Motors . . . Delco . . . Bendix . . . Inlin . . . . What is it Born -- Borg Warner.
Frank and Ripley both recalled that the clutches handled by GM part pickers were packaged in thin, square, flat boxes similar to a "pizza box," which matched the packaging of Borg-Warner's clutches as depicted in its marketing material.
In August 2001, Mark, who had been in "excellent health," developed soreness in his right rib area, and an x-ray revealed that fluid had built up in his lung. A few months later, he was diagnosed with mesothelioma, a rare and fatal cancer of the pleura caused by exposure to asbestos. Mark underwent a course of chemotherapy, but the disease continued to progress. In July 2002, he underwent extensive surgery to remove the tumor, which had spread from the pleura, into his lung, diaphragm, lymph nodes, and the lining surrounding his heart. He underwent another surgery for removal of his right lung, but in October 2002, developed bloating caused by fluid build-up. On December 16, 2002, Mark underwent a third surgery, during which it was discovered that his abdominal cavity had been "essentially replaced by the tumor." Mark died on December 21, 2002.
Ronald Gordon, the director of the electron microscopy laboratory at Mt. Sinai Medical Center, and plaintiff's expert in diagnostic pathology, opined that exposure to "short asbestos fibers," or fibers measuring less than 5 microns can be a cause of mesothelioma, and that Mark developed mesothelioma as a result of his exposure to asbestos during his summer employment at GM.
Gordon testified that exposure to all forms of asbestos, including chrysotile, can cause mesothelioma. Upon inhalation, some of the larger asbestos fibers, fibers measuring greater than five microns, become "caught up" in the respiratory mucus cells and are cleared when the cilia push the mucus up into the throat, where the fibers are either coughed out or swallowed. Asbestos fibers inhaled into the lungs are engulfed by macrophages, or white blood cells. The "great majority" of these fibers are relocated to the lymph nodes or to the pleura, the thin membrane lining the lung and the chest wall. Gordon opined that small asbestos fibers, or fibers measuring less than five microns, are more likely to penetrate deeper into the lung because the larger fibers are more efficiently removed by the mucous system.
Gordon testified that several organizations, including the Occupational Safety and Health Administration, the National Institute for Occupational Safety and Health (NIOSH), the World Health Organization (WHO), and the Environmental Protection Agency (EPA) have concluded that exposure to chrysotile asbestos is a "causative factor" in the development of mesothelioma. He said there is no safe threshold for exposure to asbestos and disagreed with a March 2003 panel report prepared by the Eastern Research Group for the Agency for Toxic Substances and Disease Registry (ATSDR), which concluded that "asbestos . . . shorter than 5 [microns] are unlikely to cause cancer in humans."
In determining the exposure in this case, Gordon examined a piece of Mark's lung tissue, which had been removed during a biopsy, and found 20,700 fibers of asbestos per gram of lung tissue, or approximately 6 million fibers in one lung. Ninety percent of the asbestos fibers measured between one and four microns in length. Gordon found four types of asbestos in the lung sample: chrysotile, crocidolite, tremolite, and amosite, at a ratio of more than twice as much chrysotile and tremolite as crocidolite and amosite. Tremolite, which is often found in veins of chrysotile rock and is thus a contaminant of chrysotile, is more durable than chrysotile and remains in the lungs longer. Gordon concluded that the presence of tremolite in Mark's lungs tended to show that at some earlier point there had been a "significantly higher amount of chrysotile," which had been absorbed by the body. However, Gordon admitted that the amount of chrysotile found in Mark's lung tissue was less than the mean concentration of asbestos found in the background fiber burden levels of people with no occupational exposure. He explained that many older people living in urban areas have some background level of asbestos fibers, usually chrysotile, in their lung tissue as a result of exposure to ambient doses of commercial asbestos. Gordon admitted that he had testified in an unrelated case that there was no scientific proof that background levels of asbestos in lung tissue caused disease, but he said the background levels of asbestos always measure "less than one micron in length." Conversely, occupational exposure generally results in larger concentrations of asbestos measuring greater than one micron in length. Gordon concluded that because ninety percent of the asbestos fibers found in Mark's lungs measured between one and four microns in length, the finding was consistent with occupational and not background exposure.
Gordon also examined a sample of Mark's lymph nodes and found over 64,000 asbestos fibers per gram of tissue, or more than three times the amount found in his lung tissue. Ninety percent of the fibers measured greater than one micron in length, and there was five times as much chrysotile and tremolite as crocidolite and amosite. Gordon said he would expect to find virtually no asbestos fibers in the lymph nodes of an individual exposed solely to background levels of asbestos. He concluded that the levels of asbestos found in Mark's lymph nodes were consistent with "significant" occupational exposure to asbestos. And, although no sample of Mark's pleura was obtained for testing, Gordon said the concentration of asbestos in Mark's lymph nodes was a "very good indicator of what's in the pleura."
Gordon concluded that the size and distribution of asbestos fibers found in Mark's lung and lymph node, was a "significant causative agent" in his development of mesothelioma. The size of the fibers found in the samples was "very consistent" with Mark's occupational history. He opined that Mark's exposure to asbestos during the summers he worked at GM provided him with the dose, dimension, and durability of chrysotile fibers sufficient to cause and contribute to his development of mesothelioma.
Similarly, Jacqueline Moline, a physician specializing in occupational and environmental medicine, opined that working with asbestos-containing friction products, including clutches, can cause mesothelioma, and that Mark's exposure to these products caused him to develop the disease. She concluded that the analysis of Mark's lungs and lymph nodes showed elevated levels of asbestos "consistent with occupational exposure."
Significantly, she explained there is a distinction between asbestosis and cancer of the lung, which develop from continuous exposure to substantial quantities of asbestos over a period of years, and mesothelioma, which is associated with the "smallest exposure" to asbestos and can develop from the cumulative effects of minimal and infrequent exposure. She testified that "people can work for very short periods of time [with asbestos] and then develop . . . mesothelioma years later," and that typically there is a thirty-year latency period from exposure to development of mesothelioma.
Chrysotile, as opposed to other types of asbestos, "appears to have a much greater ability to move from the lung into the pleural space." Moline maintained that asbestos fibers that measure less than 5 microns are not safe and can cause mesothelioma. She testified that several government agencies, including OSHA, NIOSH, EPA, and an international body, WHO, have concluded there is no known safe threshold level of exposure, although OSHA set a "permissible standard" or "PEL" of 0.1 asbestos fibers, measuring longer than 5 micrometers per cc. The fact there was visible dust present at the GM plant indicated workers had a "significant exposure" to asbestos.
Similarly, Richard Dodson, plaintiff's expert in cell biology, who specializes in asbestos-related diseases, opined that Mark's exposure to asbestos, both directly by handling clutches at the warehouse, and indirectly, through contact with his father, contributed to his development of mesothelioma. He stated there is no safe level of asbestos exposure, and that even small quantities of asbestos are sufficient to cause mesothelioma, all exposures contribute to the disease, and cumulative exposures result in less efficient clearance rates.
Moreover, according to Dodson, studies have shown that the smaller chrysotile fibers, less than 3 microns in length, were "the prevalent type of fiber" found in the pleura of mesothelioma patients. Dodson explained that smaller particles of asbestos tend to be inhaled deeper into the lungs and have less chance of being removed through the mucous system. And, he stated "[t]here usually are multiple types of asbestos in the lung tissue in patients with mesothelioma."
According to Dodson, brake and clutch dust contains asbestos that can be easily inhaled. He experimented by rinsing a number of used clutches with distilled water, and found respirable asbestos fibers in the runoff. Additionally, Dodson studied the lung tissue of a clutch refabricator who died of mesothelioma, finding chrysotile asbestos in the man's lung tissue; he concluded that working with clutches can result in "[a]ppreciable exposure to asbestos" at a rate "sufficiently high to result in disease."
Similarly, William Longo, plaintiff's expert in the identification and quantification of asbestos, opined that opening a box of brakes that contained asbestos would result in a "significant" asbestos exposure. Longo testified that asbestos dust is only visible at ranges of 100 to 150 million particles per cubic foot of air and, as a result, airborne asbestos within the prior OSHA standard of 5 fibers per cc, or five million particles per cubic foot, would be "absolutely invisible." He conducted an analysis of the asbestos released into the air after opening a box of unused Delco brakes and found millions of chrysotile asbestos fibers "laying on top of the surface of the brake shoe" and a high concentration of asbestos in the dust particles in the box.
Borg-Warner's argument in seeking reversal of the denial of its motion for judgment is based upon the legal standard to be applied in mesothelioma cases. In denying Borg-Warner's motion, the judge relied on Kurak v. A.P. Green Refactories Co., 298 N.J. Super. 304, 311 (App. Div.), certif. denied, 152 N.J. 10 (1997), and found that the "frequency, regularity and proximity" test established in Sholtis v. Am. Cyanamid Co., 238 N.J. Super. 8, 28-30 (App. Div. 1989), was not applicable to mesothelioma cases because the disease can develop with infrequent exposure to a relatively small amount of asbestos. In applying the "substantial factor" test, the judge concluded that a reasonable jury could find that: Borg-Warner clutches were at the GM facility; Mark was directly exposed when he "picked" clutches from the shelves; and such exposure was a "substantial factor" in his development of mesothelioma. We conclude, for the reasons that follow, that the judge applied the proper legal standard.
In a product-liability action, a plaintiff must prove that the product was defective when it left the defendant's control, and that the defect caused injury to a reasonably foreseeable user. Coffman v. Keene Corp., 133 N.J. 581, 593 (1993). "Causation is a fundamental requisite for establishing any product-liability action." Id. at 594. In a toxic-tort product-liability action, a plaintiff must prove both a defect and "medical causation." James v. Bessemer Processing Co., 155 N.J. 279, 299 (1998); Coffman, supra, 133 N.J. at 594. In an asbestos failure-to-warn case, "[p]roduct-defect causation means that the absence of a warning proximately caused the plaintiff's injury, and medical causation means that exposure to the defendant's asbestos proximately caused the injury." Becker v. Baron Bros., 138 N.J. 145, 152 (1994).
The issue here centers on "medical causation." To prove medical causation, a plaintiff must show that exposure was a substantial factor in causing or exacerbating the disease. James, supra, 155 N.J. at 299; Sholtis, supra, 238 N.J. Super. at 30-31. However, "[i]n the toxic-tort field, the modern trend has been to relax or broaden the standard of determining medical causation." Vassallo v. Am. Coding & Marking Ink Co., 345 N.J. Super. 207, 214 (App. Div. 2001). Proof that a defendant's conduct caused a plaintiff's injuries is "more subtle and sophisticated" in toxic-tort cases. Landrigan v. Celotex Corp., 127 N.J. 404, 413 (1992). And, "the task of proving causation is invariably made more complex because of the long latency period of illnesses caused by carcinogens or other toxic chemicals." Ayers v. Jackson, 106 N.J. 557, 585 (1987).
In Sholtis, we adopted the "frequency, regularity and proximity" test to determine whether the plaintiffs had made a prima facie case of "medical causation." 238 N.J. Super. at 28-31. The plaintiffs, who had worked at the defendant's plant for over four decades, developed asbestosis allegedly as a result of occupational exposure to the asbestos-containing products of multiple defendants. Id. at 14. We held that in order to prove that a specific defendant's product was a "substantial factor" in causing or exacerbating the disease, the plaintiff must prove "an exposure of sufficient frequency, with a regularity of contact, and with the product in close proximity" to the plaintiff, id. at 28; we explained that the
"frequency, regularity and proximity" test appears to us to be well-reasoned, properly focusing upon the cumulative effects of the exposure. It is a fair balance between the needs of plaintiffs (recognizing the diffi-culty of proving contact) and defendants (protecting against liability predicated on guesswork). Industry should not be saddled with such open-ended exposure based upon "a casual or minimum contact." . . . Yet the phraseology should not supply "catch words"; the underlying concept should not be lost. Since proof of direct contact is almost always lacking, especially in bystander cases, courts must rely upon circumstantial proof of sufficiently intense exposure to warrant liability.
[Id. at 29 (citation omitted).]
In Sholtis, we held that at the summary judgment stage "a plaintiff only need produce evidence from which a fact-finder, after assessing the proof of frequency and intensity of plaintiff's contacts with a particular manufacturer's friable asbestos, could reasonably infer toxic exposure." Ibid. "Under this test, plaintiff cannot rest on evidence which merely demonstrates that a defendant's asbestos product was present in the workplace or that he had 'casual or minimal exposure' to it." Kurak, supra, 298 N.J. Super. at 314 (quoting Goss v. Am. Cyanamid, Co., 278 N.J. Super. 227, 236 (App. Div. 1994)).
Our Supreme Court has adopted and expanded the holding in Sholtis. In James, the plaintiff sued multiple defendants alleging he developed cancer as a result of prolonged occupational exposure to petroleum residues and other chemical substances. 155 N.J. at 285. The Court held that "a plaintiff in an occupational-exposure, toxic-tort case may demonstrate medical causation by establishing: (1) factual proof of the plaintiff's frequent, regular and proximate exposure to a defendant's products; and (2) medical [or] scientific proof of a nexus between the exposure and the plaintiff's condition." Id. at 304. The Court stressed that
the "frequency, regularity and proximity" test bears no relationship to theories of collective liability that some courts have adopted in contexts where the specific . . . tortfeasors that caused the plaintiff's injury cannot be identified. The "frequency, regularity and proximity" test assigns liability only to those defendants to whose products the plaintiff can demonstrate he or she was intensely exposed.
[Id. at 302-03.]
In Kurak, we considered the application of these principles to mesothelioma cases. 298 N.J. Super. at 309. There, the plaintiff sued multiple defendants alleging he developed mesothelioma as a result of prolonged occupational exposure to asbestos. For forty-four years, the plaintiff was employed by Squibb as a laboratory technician, working for substantial periods of time in close proximity to insulated pipes, which he said were often deteriorating, flaking, and covered with dust. Id. at 310-11. On one occasion, "whitish gray" insulating material fell from the pipes onto the plaintiff, but there was no evidence that dust had frequently fallen on him, or that he had been exposed to significant quantities of dust. Id. at 311. Some pipes were insulated with "Kaylo," the brand name of an asbestos-containing pipe cover, initially manufactured by the defendant Owens-Illinois, Inc. (OI), and subsequently manufactured by defendant Owens-Corning Fiberglas Corporation (OCF). Id. at 312. At trial, the evidence showed that most of the asbestos-containing materials used at the Squibb plant came from Johns-Manville and other companies. Id. at 313.
On appeal, OI and OCF did not dispute that the plaintiff developed mesothelioma as a result of occupational exposure to asbestos at the Squibb plant. Id. at 314. Instead they argued the plaintiff failed to prove sufficient exposure to their asbestos-containing product to establish medical causation. Ibid. In discussing application of the "frequency, regularity and proximity" test, we referred to an Illinois decision where it was said:
Given the various diseases which are associated with asbestos exposure, the medical evidence presented, the types of asbestos involved, the manner in which the products are handled, and the tendency of those asbestos products to release asbestos fibers into the air . . . the amount of evidence needed to establish the regularity and frequency of exposure will differ from case to case. For example, none of the plaintiffs in this case were diagnosed with mesothelioma, an asbestos-related disease which is caused after only minor exposure to asbestos dust. Asbestosis, on the other hand, develops after a more substantial exposure to asbestos.
. . . .
The substantial factor test is not concerned with the quantity of the injury-producing agent or force but rather with its legal significance. . . . Where there is competent evidence that one or a de minimus number of asbestos fibers can cause injury, a jury may conclude the fibers were a substantial factor in causing a plaintiff's injury.
[Wehmeier v. UNR Indus., Inc., 572 N.E.2d 320, 337 (Ill. Ct. App. 1991) (quoted in part at Kulak, supra, 298 N.J. Super. at 321.]
In applying these principles, we determined that:
This case would have been easier had plaintiff been able to testify that he often found himself covered with dust. But that is not a legal requirement, at least where mesothelioma is concerned. He certainly placed himself in close proximity in relatively small rooms to asbestos-containing products, mostly pipe coverings, but also block, which were friable in that they were deteriorating, cracking, crumbling, flaking and peeling. He suffered that exposure throughout his career. And for many years he was in rooms which probably contained deteriorating and friable Kaylo in substantial quantities. According to plaintiff, he generally worked within six to twenty feet of heating pipes which were usually laden with dust. Circulating fans blew that dust in his direction. Defendants emphasize that plaintiff never said he saw pink pipes . . . and Kaylo was uniformly described as pink; but that does not undercut plaintiff's case since these materials were always painted by Squibb employees, and, when it was cut or disturbed, Kaylo yielded white dust.
[Kurak, supra, 298 N.J. Super. at 321-22.]
These decisions demonstrate that we have recognized a distinction between diseases such as asbestosis and lung cancer caused by asbestos, which develop from continuous exposure to substantial quantities of asbestos over a period of years, and mesothelioma, which, as the experts here testified, can develop from the cumulative effects of even minimal and infrequent exposure to asbestos. As a result, it was enough in this case that plaintiff provide sufficient direct or circumstantial evidence from which a reasonable jury could infer that sometime during Mark's work history, he came in close proximity and was exposed to Borg-Warner clutches, frequently and on a regular basis.
The frequency, regularity and proximity test "'is not a rigid test with an absolute threshold level necessary to support a jury verdict.'" James, supra, 155 N.J. at 302 (quoting Tragarz v. Keene Corp., 980 F.2d 411, 420 (7th Cir. 1992)). "The phraseology should not supply 'catch words' [and] the underlying concept should not be lost." Sholtis, supra, 238 N.J. Super. at 29. Tailoring causation to the facts and circumstances of the case, "[t]he frequency and regularity prongs become less cumbersome when dealing with cases involving diseases, like mesothelioma, which can develop after only minor exposures to asbestos fibers." Tragarz, supra, 980 F.2d at 420. Thus, exposure in this case must be considered in relation to the uncontradicted expert testimony establishing that mesothelioma is associated with the "smallest exposure" to asbestos and can develop from the cumulative effects of minimal and infrequent exposure.
Here, with regard to the frequency of exposure requirement, Mark worked for three summers and during his winter breaks at the GM warehouse. He was also exposed through his contact with his father who worked at GM. That rather brief work history must be considered in light of the nature of mesothelioma and the experts' testimony that the disease can be contracted after infrequent exposure to asbestos. This was sufficient to establish the frequency of exposure. See Rotondo v. Keene Corp., 956 F.2d 436, 442 (3d Cir. 1992) (holding that plaintiff, who developed mesothelioma and had worked several months one summer in close proximity to asbestos, satisfied frequency, regularity, and proximity test).
Plaintiff presented sufficient evidence to establish that Mark regularly worked in close proximity to asbestos-containing clutches, including those manufactured by Borg-Warner, to permit the issue of causation to go to the jury.
With regard to causation, Borg-Warner also argues that the jury's determination of medical causation was "tainted by" what it refers to as Froning's irrelevant and inadmissible testimony.
We find the argument that Froning's testimony was irrelevant to have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We need only briefly note in addition that, in a written decision, the trial judge set forth his reasons for denying Borg-Warner's motion to exclude Froning's deposition testimony, stating:
[i]n his deposition, Mr. Froning gave testimony indicating that he is familiar with OEM passenger vehicle clutches. [T]hrough his work at the Clutch and Manual Transmission Group at General Motors, Mr. Froning testified that the major supplier of OEM clutches to General Motors was Borg Warner. While defendants attempted to argue this evidence is not relevant as it could not show that Borg Warner clutches were present in the Englewood facility . . . , what they are really arguing is that it is too circumstantial and simply not credible. However, these issues must be left for the jury to decide. . . . Examining the proposed testimony, along with the complimentary testimony of Mr. Ripley, this Court concluded that Mr. Froning's deposition testimony may show that Borg Warner clutches were present in the facility. This Court further found that defense counsel would have the opportunity to add any counter-designations . . . and argue to the jury that the testimony . . . is not to be believed or too circumstantial to prove that their products were present.
We agree with that analysis.
Relevant evidence is evidence "having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Unless otherwise provided by rule or law, "all relevant evidence is admissible." N.J.R.E. 402. Accordingly, trial judges are granted broad discretion in determining the relevance of evidence and whether its probative value is substantially outweighed by its prejudicial nature. Verdicchio, supra, 179 N.J. at 34. Borg-Warner's arguments that Froning's testimony was irrelevant are unpersuasive, particularly when examined in light of the causation standard we have already discussed.
We also find no merit in Borg-Warner's argument that Froning's testimony should have been excluded as inadmissible hearsay. The judge admitted portions of Froning's deposition testimony in the Steed case, pursuant to N.J.R.E. 804(b)(1)(A), which permits the admission of deposition testimony of a declarant in another proceeding, who is unavailable as a witness in the present proceeding, "if the party against whom the testimony is now offered had an opportunity and similar motive in the prior . . . proceeding to develop the testimony by examination or cross-examination." The judge found Borg-Warner's "motives" in developing Froning's testimony in Steed to be "substantially similar" to its interest in this case.
In assessing motive, courts look to whether the "prior proceeding . . . involved substantially the same issues. . . ." Thompson v. Merrell Dow Pharm., Inc., 229 N.J. Super. 230, 248 (App. Div. 1988); see also Kirk v. Raymark Indus., Inc., 61 F.3d 147, 166 (3d Cir. 1995). Courts "consider whether the party resisting the offered testimony at a pending proceeding had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue." United States v. DiNapoli, 8 F.3d 909, 914-15 (2d Cir. 1993). If the motives differ, the testimony may not be introduced, Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1161 (4th Cir. 1986), although "[a] purely tactical decision not to develop particular testimony despite the same issue and level of interest at each proceeding does not constitute a lack of opportunity or a dissimilar motive for purposes" of the rule, United States v. Bartelho, 129 F.3d 663, 672 n.9 (1st Cir. 1997), cert. denied, 525 U.S. 905, 119 S. Ct. 241, 142 L. Ed. 2d 198 (1998).
In applying these concepts to the matter at hand, we note that the decedent in Steed allegedly contracted asbestosis from being exposed to asbestos while employed as a clutch refurbisher. His employer purchased used clutches from salvage yards for refurbishing, and coworkers recalled refurbishing Borg-Warner clutches. The plaintiff's counsel questioned Froning during depositions about the use of asbestos in GM's clutches, including how many and during what time period Borg-Warner supplied asbestos-containing clutches to GM. Borg-Warner's motive in cross-examining Froning in Steed was to limit the overall number of clutches sold to GM, and thus limit the number of Borg-Warner clutches available in salvage yards. To that end, defense counsel asked Froning questions about the use of Borg-Warner clutches in the "aftermarket" as opposed to new production. Counsel also questioned Froning about a document that listed GM suppliers, other than Borg-Warner, of aftermarket clutches. Defense counsel sufficiently developed the distinction between new and aftermarket clutch products.
In the present proceeding, Borg-Warner had a similar motive to establish that it only sold clutches for use in new production, not in the aftermarket. The fact that defense counsel in Steed did not ask Froning specifically whether Borg-Warner supplied clutches to GM's "aftermarket warehouses" does not alter the fact that the prior proceeding involved substantially the same issues. During closing argument in this case, defense counsel maintained that "[t]he problem is, Mr. Froning only knows about new production. The factories . . . putting cars together, that's new production. Mr. Buttitta [was] in an after market service parts warehouse, two different things." Thus, Borg-Warner argued that a critical distinction was the difference between new and aftermarket supplies, a distinction carefully developed in Steed.
We recognize that Borg-Warner's argument is not without substance. However, the judge's evidentiary ruling was a matter of discretion and, in light of his analysis of the issues in Steed and the issues here, the judge's determination to admit Froning's deposition testimony does not rise to the level of an abuse of that discretion.
B. Plaintiff's Expert Testimony
Borg-Warner argues that the judge erred in denying its motion for a hearing on the admissibility of Gordon's and Moline's opinions based upon the assertion that those opinions were "novel and unsupported." We find no merit in those arguments.
N.J.R.E. 702 imposes three requirements for the admission of expert testimony:
(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.
[Agha v. Feiner, 198 N.J. 50, 62 (2009) (quoting State v. Kelly, 97 N.J. 178, 208 (1984)).]
Only the second requirement -- whether Gordon's and Moline's causation testimony was sufficiently reliable in the field of scientific research -- is in question here.
Under the relaxed standard applicable to toxic-tort cases, "a scientific theory of causation that has not yet reached general acceptance may be found to be sufficiently reliable if it is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field." Rubanick v. Witco Chem. Corp., 125 N.J. 421, 449 (1991). See also Landrigan, supra, 127 N.J. at 413. The inquiry focuses on the scientific community's acceptance of the methodology and reasoning. Clark v. Safety-Kleen Corp., 179 N.J. 318, 337 (2004).
The admissibility of expert testimony is a matter within the trial judge's sound discretion. Hisenaj v. Kuehner, 194 N.J. 6, 16 (2008). "Although trial courts are expected to act as gatekeepers to the proper admission of expert testimony . . . [courts are not expected] to investigate sua sponte the extent to which the scientific community holds in esteem the particular analytical writings or research that a proponent of testimony advances as foundational to an expert opinion." Ibid. "In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion." Id. at 12.
A hearing pursuant to N.J.R.E. 104 "allows the court to assess whether the expert's opinion is based on scientifically sound reasoning or unsubstantiated personal beliefs couched in scientific terminology." Kemp, supra, 174 N.J. at 427. "The trial court, when faced with a not yet generally accepted theory of causation in toxic-tort litigation," should conduct a hearing pursuant to N.J.R.E. 104 "to assess the soundness of the proffered methodology and the qualifications of the expert." Rubanick, supra, 125 N.J. at 454. We apply these standards and principles in examining the attacks on the admissibility of the expert testimony of Gordon and Moline.
Defendants moved to bar Gordon from testifying, claiming his methodology in counting asbestos fibers less than five microns in length was not reliable, and claiming that he failed to distinguish between background and occupational levels of asbestos fiber burden. In denying the motion, the trial judge found that Gordon's methodology was "sufficiently reliable" and admissible, holding there was no "scientific consensus, which limits the cause of mesothelioma to only long asbestos fibers," and concluding that any legitimate questions about Gordon's methodology would be "ripe for cross-examination." The judge found that a pretrial hearing regarding the admissibility of the evidence "was not necessary" because he had sufficient information from which he could assess the reliability of Gordon's methodology:
First, Dr. Gordon has looked at the lung tissue of over 160 individuals who have been exposed to asbestos. Second, he specifically studied the fibers found in Mark Buttitta's lungs. Third, Dr. Gordon's study, which included fibers of less than 5 microns, cannot be said to stray from the "industry standard" as there appears to be no consensus in the industry on whether short fibers should or should not be included. Fourth, Dr. Gordon's methodology has been peer reviewed. Dr. Gordon's colleague, Dr. Suzuki, has documented (in peer reviewed publications) the predominance of short fiber chrysotile in the pleura of mesothelioma patients. . . .
In addition, in assessing the reliability of Gordon's methodology, the judge also reviewed several decisions supporting admission. See Reserve Mining Co. v. Envtl. Prot. Agency, 514 F.2d 492, 510 (8th Cir. 1975) (recognizing that short asbestos fibers do not pose a lower risk than long fibers); In re Asbestos Litig., 900 A.2d 120, 129 (Del. Super. Ct. 2006) (determining that short chrysotile fibers in friction products could cause mesothelioma).
Further, Gordon compared the evidence relating to Mark with his 2004 report of 158 case studies of "levels of asbestos burden observed in digests of lung tissue from our autopsy and surgical population with no history of asbestos exposure." Based on the amount of tremolite in Mark's lungs, and the amount of chrysotile and tremolite in his lymph nodes, in comparison with other detailed studies, Gordon found that Mark had "a significant chrysotile burden" at some point earlier in his life, and that this fiber burden, consistent with Mark's exposure history, was the causative agent for his mesothelioma.
In a second report, Gordon counted all fibers, even those measuring less than five microns in length. As previously mentioned, he found 20,700 fibers/gram of chrysotile and amphibole in Mark's lung, and 64,941 fibers/gram of chrysotile and amphibole in his lymph node. Ninety percent of the fibers in both samples "were between 1 and 4 micrometers in length." Gordon concluded that this data confirmed his earlier conclusions and were consistent with findings in peer-reviewed scientific articles.
In assessing the reliability of Gordon's testimony the judge reviewed the expert reports, affidavits, and deposition testimony, as well as various scientific publications. The evidentiary record, only a portion of which we have discussed, provided the trial judge with ample information from which he could determine that Gordon's methodology was scientifically sound. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142, 119 S. Ct. 1167, 1171, 143 L. Ed. 2d 238, 246 (1999) (holding that it is within the discretion of the trial court to determine whether a hearing on reliability is necessary). After careful examination, we conclude that the judge did not abuse his discretion in denying defendants' request to conduct a hearing pursuant to N.J.R.E. 104 on Gordon's identification of background levels or in finding that Gordon's use of background levels provided a reliable scientific foundation for his conclusion that the quantity and length of fibers found in Mark's lung and lymph node was consistent with occupational exposure.
We also reject Borg-Warner's contention that Gordon's testimony was unreliable because his method of using the presence of tremolite as a marker for prior exposure to chrysotile was untested and unpublished for peer review. Gordon testified that in "most instances" chrysotile asbestos is "contaminated with tremolite." Because tremolite is more durable, it tends to remain in the lungs and lymph nodes longer than chrysotile, and is thus evidence of prior chrysotile exposure. Gordon based his opinion on actual studies he had conducted in his practice at Mt. Sinai hospital, explaining that in "many instances," he had found only tremolite in the lungs and lymph nodes of patients he knew had been exposed to high levels of chrysotile. Although Gordon had not published his findings, he testified that his opinion was consistent with similar findings in the peer-reviewed scientific literature. See also Becker, supra, 138 N.J. at 154-55 (observing that "[c]hrysotile can be contaminated with a number of carcinogenic substances, including tremolite"). In fact, Moline similarly testified during depositions that tremolite is a "marker" for chrysotile. This evidentiary record provided the trial judge with ample information from which it could determine whether Gordon's methodology was scientifically sound.
Moreover, authors cited by Gordon had published articles supporting his opinion. In one article, it was declared that tremolite, found in the lungs of many mesothelioma patients, was "consistent with a derivation of the pulmonary tremolite burden from both talc and chrysotile asbestos." V.L. Roggli, et. al., Tremolite and Mesothelioma, 46 Annuals Occup. Hyg. 447 (January 2002). Andrew Churg, a pathologist, found data was "consistent with the idea that mesothelioma . . . in chrysotile miners and . . . secondary industry workers are produced by the tremolite contained in the chrysotile ore. . . ." A. Churg, Chrysotile, Tremolite, and Malignant Mesothelioma in Man, 93 Chest 621-28 (1988). Allison McDonald, an epidemiologist, found that mesothelioma was more likely to occur in miners working in mines where there was greater tremolite contamination of chrysotile. A.D. McDonald, et. al., Mesothelioma in Quebec chrysotile miners and millers: epidemiology and etiology, 41 Annuals Occup. Hyg. 707 (1997). Additionally, Dodson, one of plaintiff's experts, wrote that "chrysotile veins have often been reported to be 'contaminated' with amphiboles, particularly . . . tremolite." Ronald F. Dodson & Samuel P. Hammer, Asbestos Risk Assessment, Epidemiology, and Health Effects (2005).
Borg-Warner argues that Gordon failed to identify support for his view that "occupational mesothelioma causation can be based on counting asbestos fibers shorter than 5 [microns]." Gordon based his conclusion on his own clinical experiences, explaining that he generally only found asbestos fibers measuring less than one micron in the population of individuals with no reported exposure to asbestos, and found short fibers, measuring less than five microns but greater than one micron, in the pleura of occupationally exposed mesothelioma patients. Although it is true that Borg-Warner marshaled publications reaching a contrary conclusion, that is not a basis for prohibiting admission of the expert testimony but would only go to the weight to be given to Gordon's opinion. "Universal acceptance of a particular methodology is not required before scientific opinion is admitted. . . ." Jones v. Owens-Corning Fiberglas Corp., 288 N.J. Super. 258, 268 (App. Div. 1996).
Judicial decisions also support Gordon's opinion. See In re Asbestos Litig., supra, 900 A.2d at 149 (finding reliable an expert's testimony that exposure to short chrysotile asbestos fibers from friction products increases risk of developing asbestos-related diseases); Reserve Mining Co., supra, 514 F.2d at 510 (holding that short fibers could not be assigned a lower relative risk than long fibers).
For these reasons we find no error in the judge's refusal to conduct a hearing pursuant to N.J.R.E. 104 or in permitting Gordon to testify on these subjects.
In this appeal, Borg-Warner also argues that Moline's "conclusions were not based on valid science." Borg-Warner claims Moline's opinion that Mark's occupational exposure to asbestos caused him to develop mesothelioma was unreliable because she was not aware of the nature or quantity of asbestos in the GM warehouse. And, Borg-Warner asserts that Moline was erroneously permitted to testify as to her allegedly "untested" theories that there is no "safe" level of asbestos and that a single strand of asbestos fiber can cause mesothelioma.
In assessing the reliability of the testimony, the judge examined Moline's expert report, curriculum vitae, and deposition testimony. Moline was a board certified licensed physician, who completed her residency in internal medicine at Yale University Hospital, and her residency in occupational and environmental medicine at Mt. Sinai Hospital. She had extensive experience in occupational health, was a contributing editor to the American Journal of Industrial Medicine, lectured on the subject, and had written numerous peer-reviewed articles.
In her report, Moline detailed Mark's extensive medical history, described his occupational and environmental history, and concluded that Mark's mesothelioma
was a result of his exposure to asbestos. Fiber studies of his lung showed mixed types of asbestos fibers at levels above back-ground, as well as increased levels of asbestos bodies in his lung. Elevated levels of asbestos fibers were found in the lymph nodes as well. Malignant mesothelioma is universally recognized as being caused by asbestos exposure. Individuals with both direct and indirect exposure, "bystander" exposure, are at increased risk. While mesothelioma is seen more frequently at higher levels of exposure, it has been well described in individuals with lower levels of exposure. Mr. Buttitta was exposed to asbestos from his father, as well as when he worked at the General Motors facility . . . for several summers during college. These exposures were when he was a young boy and teenager; numerous studies have shown that early exposures to asbestos can make it more likely that someone develops mesothelioma after a sufficient latency period has passed.
At her deposition, Moline testified that although she did not know the "exact" quantity and nature of the asbestos at the GM warehouse, she was familiar with studies in peer-reviewed scientific articles authored by Dodson and Longo, who also testified at trial, establishing that opening a box with asbestos-containing friction parts would result in exposure to respirable asbestos. In her report, Moline noted that Mark had testified that the boxes and automobile parts, including clutches and brakes, were covered with dust. Moline admitted she did not know which specific asbestos-containing products had caused Mark's mesothelioma, but opined that mesothelioma arises from much "lower exposures" to asbestos than asbestosis, and that it is well-established in the scientific community that asbestos exposure causes mesothelioma.
This information provided the trial judge with an ample basis from which he could determine whether Moline was qualified, and whether her methodology was scientifically sound. As a result, the judge was not mistaken in denying defendant's request to conduct a hearing pursuant to N.J.R.E. 104.
Additionally, the judge did not abuse his discretion in finding Moline's testimony reliable. Her conclusion that Mark developed mesothelioma as a result of exposure to asbestos was based on her consideration of a variety of background factors that are generally reviewed in the medical profession in determining causation, including Mark's medical records, Gordon's analysis of Mark's lung and lymph node samples, Mark's occupational and exposure history, and scientific literature linking mesothelioma to asbestos. See Rubanick, supra, 125 N.J. at 450; A. Gibbs, et al., The "Helsinki Criteria" for attribution of lung cancer to asbestos exposure: how robust are the criteria?, 131 Arch. Pathol. Lab. Med. 181 (2007). Judicial decisions have similarly recognized that exposure to asbestos causes mesothelioma. See Olivo v. Exxon Mobil Corp., 377 N.J. Super. 286, 291 (App. Div. 2005) (observing that mesothelioma is an asbestos-related pleural disease).
The fact that Moline could not identify the nature and quantity of Mark's asbestos exposure does not render her methodology unreliable. Plaintiff did not, either through Moline or through another expert, have to identify the specific asbestos-containing product that caused Mark's mesothelioma. James v. Chevron U.S.A., 301 N.J. Super. 512, 537 (App. Div. 1997), aff'd sub nom., James v. Bessemer Processing Co., Inc., 155 N.J. 279 (1998). Borg-Warner's 1972 study, and Longo's and Dodson's experiments, furnished an evidentiary basis for Moline's finding that the dust, described by Mark as covering the boxes, clutches and brakes, contained hazardous levels of asbestos. See Caruolo v. John Crane, Inc., 226 F.3d 46, 53 (2d Cir. 2000).
Finally, Borg-Warner argues that Moline should not have been permitted to testify that there was no safe level of exposure. Specifically, Moline explained that the OSHA level was based on technological considerations not on the disease pathology. She also testified, without objection, that asbestos fibers less than five microns in length are not safe. That testimony was amply supported by: other experts, i.e., Gordon and Dodson; Congressional findings, see 20 U.S.C. 3601(a)(3) (determining that "medical science has not established any minimum level of exposure to asbestos fibers which is considered to be safe"); government publications; and judicial decisions, see Tragarz, supra, 980 F.2d at 421 (finding there is "no level of asbestos exposure at which a person is safe from contracting mesothelioma").
Moline did not, contrary to Borg-Warner's assertion, espouse a "single fiber" theory. Instead, she testified, in accordance with existing scientific evidence that mesothelioma is caused by the smallest of exposures and that all exposures contribute to the disease. Accord Kurak, supra, 298 N.J. Super. at 319 (observing that mesothelioma is not dose-dependent and can result from "relatively insignificant exposure" to asbestos). Nor did she dismiss "background" fiber burden rates as a "fallacy." On cross-examination, defense counsel asked Moline if she agreed that the background incidence rate of mesothelioma in unexposed individuals was one per million individuals. Moline said that the background incidence rate was a "fallacy" because there is no way to determine whether that one individual had been exposed to asbestos.
C. Claims Against
Borg-Warner argues that the judge erred in barring pursuit of its cross-claims against GM and Honeywell/Bendix, and in denying its motion to include settling defendants, namely, GM, Honeywell/Bendix, and Zimmerman, on the verdict sheet for purposes of allocating fault. We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.
Borg-Warner sought to prove its claim against GM through admission of GM's response to an interrogatory. In its response, GM acknowledged that, beginning in 1939, it had manufactured asbestos-containing drum brake linings, under several trade names, and beginning in 1966, had manufactured asbestos-containing disc brake linings. GM also purchased drum and disc brake linings from other manufacturers, including Bendix, to install on its vehicles. However, GM indicated it was "impossible to determine if all products supplied during the times indicated were asbestos-containing because the presence or absence of asbestos in linings is not reflected in the information from which the . . . data was obtained." And, in another response, GM stated that beginning in 1930 it had manufactured clutch driven plate assemblies with friction materials supplied by other manufacturers, including Borg-Warner, Borg & Beck and Alma Products Co. GM represented that it did not know the precise asbestos content of facing material manufactured by those companies, but admitted it was "industry practice" to use chrysotile asbestos. Plaintiff's counsel objected on the basis that these interrogatory answers constituted inadmissible hearsay.
Rule 4:16-1(a) provides that "[a]ny deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the Rules of Evidence." Rule 4:16-1(b) permits the deposition of a party to be used by an adverse party for "any purpose against the deponent. . . ." The court rules, which reference the rules of evidence, are based on the exception to the hearsay rule contained in N.J.R.E. 803(b)(1), which provides that answers to interrogatories are statements by a party and therefore admissible as admissions. N.J.R.E. 803(b)(1); Skibinski v. Smith, 206 N.J. Super. 349, 353 (App. Div. 1985). The judge correctly found the responses to interrogatories were not admissible under Rule 4:16-1(b) or N.J.R.E. 803(b)(1), because GM, a settling defendant, was no longer a party to the litigation. See Guzzi v. Clarke, 252 N.J. Super. 361, 367 (Law Div. 1991).
We also find no merit in Borg-Warner's argument that the judge erred in denying its motion to include the settling defendants, GM, Honeywell/Bendix, and Zimmerman, on the verdict sheet for the purpose of allocating fault. In denying the application, the judge found that Borg-Warner had failed to present evidence "as to the quantity, exposure, or . . . potency of the asbestos to which Mr. Buttitta was exposed or, for that matter, the standard of care" applicable to a claim against GM, who was a manufacturer of asbestos-containing products, and Mark's and his father's employer. The record fully supports that determination.
To be sure, there was evidence that Mark was exposed to chrysotile asbestos-containing GM manufactured parts, Bendix brakes, and GM parts containing asbestos supplied by Zimmerman and mined by ACL. And a reasonable jury could conclude that there were concurrent causes of Mark's death, given that he had been exposed to various chrysotile asbestos products. But Borg-Warner bore the burden of presenting a basis for an allocation of percentages in order to reduce its individual percentage of fault, which it failed to do. James, supra, 155 N.J. at 313; Sholtis, supra, 238 N.J. Super. at 30. The judge's determination that Borg-Warner failed to present sufficient evidence from which the jury could have allocated its percentage of liability is well-supported by the record.
Borg-Warner lastly argues that the trial judge erred in denying its motion for remittitur because the damages awarded for loss of parental and spousal services were excessive. Borg-Warner argues the jury's award of $11,030,544 ($2,030,544 to plaintiff and $3 million to each daughter for the loss of Mark's parental care and guidance) should be remitted to $1,088,754.
In support of the damage claim, plaintiff presented expert testimony that calculated lost services (household and companionship) to plaintiff and the three children at $1,088,754. In doing so, he estimated the number of hours per week Mark would have provided household services to plaintiff, which he multiplied by a rate of $15 to $17 per hour, and calculated the loss of companionship services to plaintiff and the children, which he multiplied at a rate of $17.41 per hour. The expert estimated that Mark would have spent thirteen hours per week with each of the children until they turned eighteen, then four hours per month thereafter. The expert did not determine the value of the loss of advice, guidance and counsel to the children. The expert also valued Mark's lost income at $10,223,450.
The jury awarded plaintiff $9,261,660 for loss of earnings, $2,030,544 for loss of services, and $3 million for each of their three daughters for loss of parental care and guidance. In denying defendants' motion for remittitur the judge found:
[t]he record contained an abundance of testimony, aside from the testimony of Dr. Tinari, to allow the jury to award damages for loss of services. Mrs. Buttitta and Jackie Buttitta told the jury that each child had a special relationship with their father and testified as to each child's specific losses. The youngest child was about 12 years old at the death of her father. The record is replete with specific instances [of Mark] not being present to counsel his eldest daughter up to her marriage, to his guidance to his youngest daughter with her schoolwork. Furthermore, the record shows that [Mark] was constantly involved in the lives of his children, from coaching their teams to providing invaluable life lessons.
The judge found that the jury had "ample evidence to examine when making their determination of the value of the loss of services" to the children. Moreover, although he viewed the award as "generous," the judge found "the jury awarded full value for the loss of services as the record clearly demonstrates the 'quality' of advice given by [Mark] was unquestionably high."
Trial courts should not order a new trial or remit a jury's damages award unless so disproportionate as to shock the judicial conscience. Johnson v. Scaccetti, 192 N.J. 256, 281 (2007); Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977). "[T]he evaluation of damages is a matter uniquely reposed in the jury's good judgment, and to justify judicial interference, '[t]he verdict must be "wide of the mark" and pervaded by a sense of 'wrongness.'" Jastram v. Kruse, 197 N.J. 216, 229 (2008) (quoting Johnson, supra, 192 N.J. at 281). "[A] trial judge's review must be grounded substantially in the 'totality of the evidence' in the record, . . . which is viewed in a light most favorable to the plaintiff." Ibid. (quoting Baxter, supra, 74 N.J. at 598).
Wrongful death damages are limited to the pecuniary value of a plaintiff's loss. N.J.S.A. 2A:31-5. Pecuniary damages include not only the loss of future financial contributions, but also "the lost 'value' of services such as companionship and care (in the case of the death of a child) and the loss of advice, guidance and counsel (in the case of the death of a parent)." Johnson v. Dobrosky, 187 N.J. 594, 609 (2006). The value of advice, guidance, and counsel is measured according to the market value of a therapist, business adviser or counselor. Johnson, supra, 187 N.J. at 610.
The jury's award of $11,030,544 for loss of services and loss of parental care and guidance was substantially more than plaintiff's expert's calculation. However, the jury was entitled on this record to find the expert was conservative in calculating the household and companionship services to plaintiff and the children and in considering the intangible services of advice and counseling for the children. The award may have been generous, as recognized by the judge, but it was based on the undisputed evidence that Mark was an active and engaged father, and would have been expected to provide significant intangible services to his children such as guidance, training and counseling. See Morris v. Krauszer's Food Stores, Inc., 300 N.J. Super. 529, 541-42 (App. Div.), certif. denied, 151 N.J. 77 (1997). In deferring to the judge's feel of the case, we have been presented with no persuasive reason to intervene.
II. ACL's APPEAL
Following the jury verdict and entry of judgment, ACL appealed, arguing that the trial judge erred: (a) in holding that the court possessed personal jurisdiction over ACL; (b) in compelling discovery and imposing sanctions without proper regard for the Quebec Business Concerns Record Act (QBCRA); (c) in denying its motion for summary judgment; (d) in denying its motion for judgment n.o.v.; and (e) in making other rulings. We find no merit in those contentions.
A. Personal Jurisdiction
ACL first argues that the judge erred in denying its motion to dismiss plaintiff's claims for lack of in personam jurisdiction. We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.
In what it characterizes as a "streamlined motion procedure," ACL moved to dismiss plaintiff's complaint for lack of personal jurisdiction based on the same facts and legal arguments asserted in three federal cases in the 1970's. That is, ACL, a Quebec corporation, incorporated by reference an affidavit submitted in the three federal cases, in which it set forth that it did not maintain an office or bank account, was not licensed to do business, and did not maintain any stock of asbestos in New Jersey. ACL claimed that all sales of asbestos were made "F.O.B. Thetford Mines, Province of Quebec." Evidence regarding ACL's "methods of shipment and billing" also apparently was submitted to the United States District Court for the District of New Jersey, but it is unclear whether it was submitted to the trial court in this case, nor is that evidence included in the record on appeal.
In one of the federal cases cited by ACL, the district judge denied ACL's motion to dismiss, finding that ACL had sufficient minimum contacts with New Jersey to warrant the exercise of personal jurisdiction, as follows:
[I]t seems without question that in personam jurisdiction exists with respect to all the defendants . . . at least to the extent that they may be held liable for any damages proven to be the result of their placing asbestos into the stream of commerce in New Jersey. Notwithstanding the fact that all sales were made FOB Canada, each defendant knew or should have known that their product would be utilized in New Jersey, as evidenced by their methods of shipment and billing procedures. Thus . . . it is well within the . . . "permissible limit of due process" to require these defendants to defend themselves against this action by a New Jersey corporation's employees for alleged wrongs arising out of their shipment of asbestos into this forum.
[Austin v. Johns-Manville Prods. Corp., No.75-754 (D. N.J. Dec. 1, 1976).]
In denying the motion to dismiss, the judge determined that ACL's motions in the federal actions had been denied, those rulings were sustained on appeal, and that in six other cases in the District of New Jersey, not cited by ACL, ACL's motions to dismiss for lack of personal jurisdiction had been "disposed of for the same reasons and upon the same terms." Accordingly, the judge denied ACL's motion "for the same reasons and upon the same terms as were similar [m]otions" in federal court. In short, ACL raised the personal jurisdiction defense, but then conceded that the defense had been rejected in nine other cases filed in federal court, and provided nothing except the same facts that proved inadequate in federal court.
B. Discovery and
ACL argues that the judge mistakenly ordered that it provide discovery in contravention of the QBCRA. We reject this argument.
We previously granted leave to appeal to consider an interlocutory discovery order in light of ACL's argument regarding the QBCRA. In our earlier decision, we discussed this dispute at length, Buttitta v. Asbestos Corp. Ltd., No. A-6101-04T1 (App. Div. Aug. 16, 2006), and need now only briefly outline the circumstances.
In a nutshell, in her first set of interrogatories, plaintiff requested information concerning ACL's sales of raw asbestos. In question 11(g), plaintiff asked ACL to identify the name of any entity to whom it had sold asbestos, to list the dates of such sales and the manner of shipment, and to attach all records evidencing such sale; ACL responded that it was prohibited by the QBCRA from divulging the information. However, by way of further response, ACL acknowledged that it had packaged raw asbestos in bags, printed with the company name and a warning regarding asbestos. ACL also responded that "[t]here are literally thousands of uses for raw chrysotile asbestos fiber and ACL's fiber was sold to sophisticated purchasers and/or users." In question 46, plaintiff asked, in relevant part, whether ACL had sold, shipped, or distributed any asbestos to GM, including any GM facility in New Jersey; ACL responded, without waiving its QBCRA objection, that it had "never sold or supplied any of its raw asbestos fiber, which is not a product, to any of plaintiff's alleged exposure sites." And, in question 47, plaintiff requested additional specifics about any shipments; ACL responded that the question was not applicable, directing plaintiff to its answer to question 46.
Later, in an effort to comply with the discovery requests without violating the QBCRA, ACL served supplemental responses to plaintiff's first set of interrogatories, in which it incorporated some of GM's responses. With regard to question 11(g), ACL incorporated GM's response that it had purchased chrysotile asbestos for use in its drum brake linings from:
Asbestos Fibre Corp 1939-1975
Asbestos Corporation, Ltd
c/o C.L. Zimmerman Co.
N-303 Cincinnati Union Terminal
Cincinnati, Ohio 45203
Asbestos Corporation, Ltd 1967-1984
GM set forth that it purchased chrysotile asbestos for use in its disc brake linings from ACL (1967), Lake Asbestos (1967-1970), Canadian Johns Manville (1967-1984), National Gypsum Co. (1972), and Zimmerman (1972-1977).
In response to question 46, ACL incorporated GM's answers as follows:
GM in their response to question 13 states that chrysotile fiber for its drum and disc brake linings were purchased from [ACL] . . . . Furthermore, "GM cannot identify each and every entity to which it supplied any asbestos-containing friction products during the extensive period requested by plaintiffs. GM does not keep records that would allow it to determine the amount of asbestos-containing friction products it sold in the region, or any other geographic or chronological characterization. For the lengthy and historic period this request covers, GM supplied replacement parts, which may have included some asbestos-containing friction products, to authorized dealerships and distributors, in existence during the relevant period" . . . . Furthermore, "GM cannot identify dealerships unless they are currently in operation because it does not keep track or keep a database on closed dealerships . . . In addition, GM's information about authorized dealerships and distributors does not provide data specific to sales of asbestos-containing friction products as defined in this request."
Thereafter, ACL forwarded co-defendant's responses to its interrogatories, in which Zimmerman admitted it had "dealt with" ACL from 1950 to 1975. Zimmerman also indicated all shipments from ACL were made to GM's Inland and Delco Divisions in Ohio.
In subsequent orders, the judge again compelled ACL to provide more specific answers to interrogatories, finding QBCRA inapplicable and then struck ACL's answers and defenses without prejudice.
In our earlier decision, we directed the judge to conduct an analysis in accordance with established law. Specifically, we found that
the motion judge did not consider the factors set forth in Aerospatiale, nor consider whether there were any alternative means in which the information could have been obtained from ACL, or whether that information was indeed relevant in light of the admission that it had supplied raw chrysotile asbestos fiber to GM. Moreover, document inspection could have been ordered to take place in Quebec in order to lessen the offense to the QBCRA or, alternatively, the court could have ordered plaintiff to first seek this discovery within the United States before mandating ACL turn over documents located in Quebec. We are thus constrained to vacate the June 10, 2005 order and remand the matter for reconsideration . . . .
[Buttitta, supra, slip op. at 50.]
On remand, a different judge conducted an appropriate analysis. He found that the information provided to plaintiff by ACL -- that is, ACL's incorporation of information provided to plaintiff by GM -- was "essentially useless," because the "fact that ACL never sold product directly to any of the . . . facilities in New Jersey is of little moment, if it sold asbestos to Ohio sites or any other sites which resulted in vehicles being shipped into New Jersey." The judge further held that "the evidence plaintiff seeks relative to distributions to General Motors of ACL products is crucial. Without that evidence, it is doubtful whether plaintiff would be able to present a prima facie case against ACL." The judge thus ordered ACL to provide fully responsive answers to interrogatories 11(g), 46, and 47.
A subsequent motion for reconsideration was denied. ACL's motions for leave to appeal to this court and the Supreme Court were also denied.
With the entry of final judgment in the trial court, ACL again argues that the judge was in error in compelling discovery and, later, striking ACL's answer and limiting its ability to participate at trial. We reject these arguments.
ACL's arguments rely on the QBCRA, which provides that
no person shall, pursuant to or under any requirement issued by any legislative, judicial or administrative authority outside Qu bec, remove or cause to be removed, or send or cause to be sent, from any place in Qu bec to a place outside Qu bec, any document or r sum or digest of any document relating to any concern.
[Que.Rev.Stat., ch. 278, 2 (1964).]
The QBCRA provides that any person who infringes the provision quoted above "shall be guilty of contempt of court in addition to any obligation provided by the undertaking or security furnished or ordered by the judge." Que.Rev.Stat., ch. 61, s. 267, 5 (1992). Also, "[w]henever there is reason to believe that a requirement has been or is likely to be made for the removal or sending out of Qu bec of a document relating to a concern, the Attorney General may apply to a judge of the Court of Qu bec, in the judicial district where the concern in question is located, for an order requiring any person, whether or not designated in the requirement, to furnish an undertaking or security to ensure that such person will not remove or send out of Qu bec the document mentioned in the said requirement." Que.Rev.Stat., ch. 40, s. 109, 4 (1992).
The QBCRA is a "blocking statute"; that is, it is "a law passed by the foreign government imposing a penalty upon a national for complying with a foreign court's discovery request." Lyons v. Bell Asbestos Mines, Ltd., 119 F.R.D. 384, 388 (D.S.C. 1988). Despite the intent of such laws, it is well established that a "blocking statute" will "not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that statute." Aerospatiale, supra, 482 U.S. at 544 n.29, 107 S. Ct. at 2556 n.29, 96 L. Ed. 2d at 484 n.29. In Aerospatiale, the Court held that the Hague Convention did not provide the exclusive mechanism for obtaining documents and information located in a foreign signatory nation's territory, and that despite the French "blocking statute" at issue in that case, the trial court properly ordered the French corporations to comply with the discovery requests. Id. at 533-34, 107 S. Ct. at 2550-51, 96 L. Ed. 2d at 477-78. The Court explained that:
American courts are not required to adhere blindly to the directives of such a [blocking] statute. Indeed, the language of the statute, if taken literally, would appear to represent an extraordinary exercise of legislative jurisdiction by the Republic of France over a United States district judge, forbidding him or her to order any discovery from a party of French nationality, even simple requests for admissions or interrogatories that the party could respond to on the basis of personal knowledge. It would be particularly incongruous to recognize such a preference for corporations that are wholly owned by the enacting nation. Extraterritorial assertions of jurisdiction are not one-sided. While the District Court's discovery orders arguably have some impact in France, the French blocking statute asserts similar authority over acts to take place in this country. The lesson of comity is that neither the discovery order nor the blocking statute can have the same omnipresent effect that it would have in a world of only one sovereign. The blocking statute thus is relevant to the court's particularized comity analysis only to the extent that its terms and its enforcement identify the nature of the sovereign interests in nondisclosure of specific kinds of material.
[Id. at 544 n.29, 107 S. Ct. at 2556 n.29, 96 L. Ed. 2d at 484 n.29.]
The Court acknowledged that "[s]ome discovery procedures are much more 'intrusive' than others." Id. at 545, 107 S. Ct. at 2556, 96 L. Ed. 2d at 484-85. Thus, the Court held that:
American courts, in supervising pretrial proceedings, should exercise special vigilance to protect foreign litigants from the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position. Judicial supervision of discovery should always seek to minimize its costs and inconvenience and to prevent improper uses of discovery requests. When it is necessary to seek evidence abroad, however, the district court must supervise pretrial proceedings particularly closely to prevent discovery abuses. For example, the additional cost of transportation of documents or witnesses to or from foreign locations may increase the danger that discovery may be sought for the improper purpose of motivating settlement, rather than finding relevant and probative evidence. Objections to "abusive" discovery that foreign litigants advance should therefore receive the most careful consideration. In addition, we have long recognized the demands of comity in suits involving foreign states, either as parties or as sovereigns with a coordinate interest in the litigation. . . . American courts should therefore take care to demonstrate due respect for any special problem confronted by the foreign litigant on account of its nationality or the location of its operations, and for any sovereign interest expressed by a foreign state.
[Id. at 546, 107 S. Ct. at 2557, 96 L. Ed. 2d at 485 (citation omitted).]
In providing guidance, the Aerospatiale Court held that "[t]he nature of the concerns that guide a comity analysis is suggested" by the Restatement. Id. at 544 n.28, 107 S. Ct. at 2556 n.28, 96 L. Ed. 2d at 484 n.28. The Restatement provides that an American court may consider whether it is appropriate to order a person subject to its jurisdiction to produce relevant documents even when possessed by a person outside the United States, by analyzing the following factors:
 the importance to the investigation or litigation of the documents or other information requested;  the degree of specificity of the request;  whether the information originated in the United States;  the availability of alternative means of securing the information; and  the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located.
[Restatement, 442(1), (a), (c).]
On remand, the judge did not question ACL's "good faith" in attempting to answer the interrogatories without "running afoul of the QBCRA," but noted that ACL had made no effort to secure permission from a judge in Quebec to make the information available. The judge found the discovery sought was "absolutely essential to plaintiff's case" against ACL, and he held that plaintiff was "entitled to attempt to develop information relative to the quantity of asbestos purchased by GM directly, as well as, indirectly through other entities, which supply product to GM."
"Where the outcome of litigation 'does not stand or fall on the present discovery order,' or where the evidence sought is cumulative of existing evidence, courts have generally been unwilling to override foreign secrecy laws." Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1475 (9th Cir. 1992), cert. denied, 506 U.S. 903, 113 S. Ct. 295, 121 L. Ed. 2d 219 (1992) (quoting In re Westinghouse Elec. Corp. Uranium Contracts Litig., 563 F.2d 992, 999 (10th Cir. 1977)). See also U.S. v. Vetco, Inc., 691 F.2d 1281, 1290 (9th Cir.), cert. denied, 454 U.S. 1098, 102 S. Ct. 671, 70 L. Ed. 2d 639 (1981); In re Rubber Chems. Antitrust Litig., 486 F. Supp. 2d 1078, 1082 (N.D. Cal. 2007). However, where the evidence is "directly relevant," this factor weighs in favor of disclosure. Richmark, supra, 959 F.2d at 1475. See also White v. Kenneth Warren & Son, Ltd., 203 F.R.D. 369, 375 (N.D. Ill. 2001).
Here, it was incumbent on plaintiff to prove exposure to products that contained asbestos supplied by ACL in order to prevail against ACL. By incorporating GM's answers to interrogatories, ACL admitted to supplying asbestos products to GM for use in manufacturing drum and disc brakes. However, plaintiff also sought information regarding the quantity of asbestos sold, and whether ACL sold asbestos to any other entities, including defendants who may have manufactured parts found in the New Jersey warehouse. As the judge found, that information was directly relevant to plaintiff's ability to pursue her claim against ACL. Evidence as to the quantity of asbestos sold by ACL to GM would tend to show whether ACL was a significant or even exclusive supplier of asbestos. Such quantitative evidence would establish whether ACL asbestos had been used in most, or all, of GM's brakes, particularly the Delco and Inland brands, for which ACL was a supplier. And, evidence as to sales to other manufacturers was relevant both to the extent of exposure to ACL's asbestos. Thus the first Aerospatiale factor weighs in favor of disclosure.
The judge made the following comments about the third factor:
The third factor, whether the information originated in the United States, which would favor ACL, seems to . . . me to be rather inconsequential, at least in this case, which involves international trade. And all manufacturers [whose] products are trans-ported to the United States are subject to the same consideration.
Although the third factor weighs in the favor of ACL the weight to be given to it, is a matter of discretion.
ACL argues on appeal that the judge improperly found this factor "inconsequential," thereby in effect "eliminating this factor in this case and virtually in every case."
We agree the judge was mistaken in finding this factor inconsequential. This factor weighs against disclosure because it appears the documents did not originate in the United States and were created or used by ACL in Quebec. ACL was entitled to the benefit of this factor in the Aerospatiale calculus. See Richmark, supra, 959 F.2d at 1475; In re Rubber Chems. Antitrust Litig., supra, 486 F. Supp. 2d at 1082; White, supra, 203 F.R.D. at 375.
In addressing factor four -- availability of alternative means of securing the information -- we previously noted that "the record is unclear whether the information sought by plaintiff is available from other sources within the United States or whether plaintiff attempted to obtain such information from alternative sources. Whether GM could reasonably be that alternative source is an issue that should be explored and considered on remand." Buttitta, supra, slip op. at 32.
On remand, the judge found this factor weighed in favor of disclosure, stating:
Again, I don't know whether ACL has any information. General Motors does not. I'm not aware of any realistic source from which the information might be sought, nor has any source been suggested. If definitive infor-mation is available from other defendants, I might be inclined to direct them to respond to proper discovery requests, but for the fact that ACL is going to be directed to provide the General Motors type information. And therefore, there's no reason why it should not provide all information that might relate to products and dissemination of asbestos.
Accord Richmark, supra, 959 F.2d at 1475 (observing that "[i]f the information sought can easily be obtained elsewhere, there is little or no reason to require a party to violate foreign law").
Here, no other means to determine the quantity of asbestos sold to GM were identified or suggested. GM did not have that information, nor did it keep records that would allow it to determine the amount of asbestos-containing products it sold in the region. Nor would plaintiff have been able to obtain, for jurisdictional purposes, information from non-defendant purchasers of asbestos. And, by the time the motion was heard, many defendants had been dismissed from the case.
Factor five requires an analysis of the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of Quebec -- "the most important factor" in the analysis. Richmark, supra, 959 F.2d at 1476. We previously observed that the United States has an "important interest" in protecting its citizens from harmful products. Buttitta, supra, slip op. at 32. "Such an interest . . . arguably trumps the QBCRA, particularly in light of the fact that it seems the enactment of the QBCRA, as well as other blocking statutes, was done in an attempt to prevent the long arm reach of the United States' anti-trust statutes." Ibid.
On remand, the judge found that Quebec had no "true interest in preventing" disclosure in this case because anti-trust considerations were not implicated. ACL did not petition the attorney general to authorize disclosure. And, ACL did not present any case law to "suggest that criminal sanctions have ever been imposed, where a foreign court directs disclosure." On appeal, ACL argues that it would face sanctions for disclosure, and thus this factor should weigh against disclosure. First, ACL cites to the order, dated October 2, 2006 (eighteen days before the hearing on remand), entered by a judge of the court of Quebec, precluding ACL from producing documents outside of Quebec. Other than this order, ACL has presented no case law in which a Canadian citizen was imprisoned for violating the terms of such an order. Instead, ACL cites to a series of decisions in which district courts in Quebec have prohibited the removal of documents.
Moreover, the policy behind the QBCRA, namely to protect Canadian businesses against the application of United States and other foreign countries' antitrust laws, is outweighed by the interest of the United States in protecting our citizens from hazardous exposure to asbestos.
In fact, several federal courts have compelled Quebec companies to provide discovery notwithstanding the QBCRA. See Cent. Wesleyan Coll. v. W.R. Grace & Co., 143 F.R.D. 628, 646 (D.S.C. 1992), aff'd, 6 F.3d 177 (4th Cir. 1993); Lyons, supra, 119 F.R.D. at 389; Am. Indus. Contracting, Inc. v. Johns-Manville Corp., 326 F. Supp. 879, 881 (W.D. Pa. 1971).
To summarize, we disagree with the judge's determination that the third factor was inconsequential -- and find instead that it weighs in ACL's favor -- but we agree with the judge's examination of the other factors and conclude that the balancing of all weighs in favor of the turnover of discovery.
ACL also argues, in this same vein, that the judge erred in striking its answers and defenses for failure to comply with the discovery orders and in limiting its role at trial. We find insufficient merit in that argument to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). It suffices to say that ACL's failure to adequately respond to legitimate discovery requests was established, as we have already discussed. In order to prevent ACL from benefiting from its wrongful conduct, some sanction was required. We are satisfied that the judge's choice of a sanction was entirely appropriate and fell well within the bounds of the judge's discretion.
C. Summary Judgment
ACL argues that the judge erred in denying its motion for summary judgment. We disagree. In fact, the judge did not deny the motion but instead refused to entertain it in light of ACL's failure to provide discovery. In any event, we reject the contention that ACL was entitled to summary judgment or even entitled to a consideration of the motion's merits in light of its refusal to provide adequate discovery responses. ACL's arguments in this regard are of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.
A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-29(c). We apply the same legal standard on appeal. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007).
Here, discovery revealed that ACL had supplied raw chrysotile asbestos to GM's Delco and Inland manufacturing plants and that GM used asbestos in the manufacture of brakes at these plants. Also, Mark testified that he recalled seeing Delco products at the GM warehouse during the course of his employment. A rational factfinder, accepting as true all the evidence supporting plaintiff's position, as well as all legitimate inferences that may be deduced therefrom, could determine that GM used asbestos supplied by ACL in the manufacture of its Delco brakes and that Mark was exposed to the brakes at the warehouse in New Jersey.
D. ACL's Motions
for Judgment At Trial
ACL argues that the trial judge erred in denying its motions for judgment at the close of plaintiff's case and at the close of all the evidence. We reject these contentions.
ACL argues that plaintiff failed to prove that Mark was exposed to "asbestos fibers sold or distributed by ACL." It contends that plaintiff failed to introduce evidence that ACL fibers were incorporated into any specific GM product, and claims that, at best, ACL was just one of many asbestos suppliers. ACL also argues that, even if its fibers were incorporated into GM brakes, there was no evidence that the brakes were transported from Ohio to New Jersey.
However, here, as the trial judge observed, GM admitted that from 1950 to 1975, it had manufactured or distributed disc brake linings, drum brake linings and manual transmission clutch plates that contained encapsulated chrysotile asbestos fiber. Stevens testified that until 1976, ACL was Zimmerman's sole supplier of asbestos, and Zimmerman was the exclusive distributor of asbestos fibers in the Ohio region where the Delco and Inland divisions of GM manufacturing plants were located and where GM manufactured brakes. Additionally, there was evidence that from 1939 to 1984, ACL was GM's sole supplier of asbestos for use in the manufacture of GM's drum brake linings. The jury certainly was entitled to find that ACL was one of few suppliers of asbestos to GM for use in the manufacture of its disc brake linings.
Accepting as true all the evidence which supports plaintiff's position, including the evidence provided by Mark and others as to the products seen in GM's facility during Mark's employment, and according plaintiff the benefit of all inferences which can reasonably and legitimately be deduced therefrom, a jury could find that ACL's asbestos was incorporated into both drum and disc GM brakes, which were manufactured under the brand names Delco and Inland.
E. Other issues
ACL also argues that the judge erred in denying Borg-Warner's request to admit portions of GM's answers to interrogatories, in failing to include the settling defendants on the verdict sheet, in failing to properly charge the jury, and in denying its application for remittitur. To the extent these arguments are not the same as those raised by Borg-Warner, which we have rejected, we find they are of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
In answering the complaint, Borg-Warner Corporation indicated that it was then known as Burns International Services Corporation. In this court, Borg-Warner Corporation has referred to itself as "Borg-Warner Corporation, by its Successor in Interest BorgWarner Morse TEC, Inc." We will refer to that entity hereinafter as Borg-Warner.
Occupational Safety and Health Act, 29 U.S.C.A. 651 to 678.
Steed v. Borg-Warner Corp., No. 94-141 (Tx. D. Ct. 1995) (the Steed case).
A micron is one millionth of a meter.
Asbestos is a naturally occurring mineral containing microscopic fibers that are easily inhaled. The most common types of asbestos are chrysotile (white fibers), amosite (brown fibers), crocidolite (blue fibers), tremolite (veins of which are often found in chrysotile rock), and anthophyllite (least commercially used). The two principle branches of asbestos are serpentine (chrysotile), which contain curly and flexible fibers, and amphiboles (tremolite, amosite, crocidolite, and anthophyllite), which contain straight, stiff, and brittle fibers. Chrysotile is the most common type of asbestos used in the United States, and is considered less durable than other types of asbestos, and thus more easily broken down by the body.
Although Borg-Warner argued forcefully in summation that the evidence did not support a finding that its asbestos-related products could have been presented in GM's facility at the times in question, Borg-Warner's argument suffered from the fact that it could not demonstrate the number of sales of Borg-Warner clutches to GM because it had "disposed of its clutch operation" and destroyed its records relating to "its product sales to any General Motors facility in New Jersey." In addition, the jury heard the deposition testimony of Froning from an unrelated case that from the early 1960's to the mid-1980's, Bork & Beck, a division of Borg-Warner, was GM's "prime" supplier of clutches and provided "virtually 100 percent" of the clutches installed in GM passenger cars and light trucks.
As Mark's employer, GM would be immune from liability in light of N.J.S.A. 34:15-8, although GM was potentially liable for injuries caused by Mark's indirect exposure to his father. Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 405 (2006); Kaczorowska v. Nat'l Envelope Corp., 342 N.J. Super. 580, 592 (App. Div. 2001).
ACL, which also was known as "Societe Asbestos Limitee," was incorporated and organized under the laws of Canada, with its principal office in Montreal. From 1925 to 1986, ACL was engaged in the mining and milling of raw chrysotile asbestos fiber.
Societe Nationale Industrielle Aerospatiale v. United States District Court for Southern District of Iowa, 482 U.S. 522, 107 S. Ct. 2542, 96 L. Ed. 2d 461 (1987).
The QBCRA defines "document" as "any account, balance sheet, statement of receipts and expenditure, profit and loss statement, statement of assets and liabilities, inventory, report and any other writing or material forming part of the records or archives of a business concern. . . ." Que.Rev.Stat., ch. 278, 1 (1964).
Restatement of Foreign Relations Law of the United States (Revised) 437(1)(c) (Tentative Draft No. 7, 1986) (approved May 14, 1986), now Restatement (Third) of Foreign Relations Law of the United States, 442 (1987).
On October 2, 2006, only eighteen days before the hearing following our remand, a judge in Quebec entered an order precluding ACL from producing documents outside of Quebec. It is unclear why that order was not brought to the attention of the trial court until after argument on the motion.
ACL does not dispute that application of factor two -- the degree of specificity of the request -- weighs in favor of compelling disclosure.
April 5, 2010