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Beshada v. Johns-Manville Products Corp.

Decided: July 7, 1982.

EDWARD J. BESHADA, BY HIS ADMINISTRATRIX AD PROSEQUENDUM, ELEANOR BESHADA; ELEANOR BESHADA, EXECUTRIX OF THE ESTATE O EDWARD J. BESHADA, DECEASED; GEORGE J. BURDAK AND ROSE BURDAK, HIS WIFE; JAMES D. CANNON AND BERTHA CANNON, HIS WIFE; RAYMOND D. CREED AND MARY CREED, HIS WIFE; STANLEY J. DROZD AND ROSE DROZD, HIS WIFE; HENRY J. GROBELNY AND PEARL GROBELNY, HIS WIFE; THADDEUS KASUBINSKI AND AGNES KASUBINSKI, HIS WIFE; MICHAEL KRUK; STEPHEN KUZMACK AND AMELIA KUZMACK, HIS WIFE; JOHN G. ORSAG AND SUSAN ORSAG, HIS WIFE; JOHN PLEVA AND ANN PLEVA, HIS WIFE; PAUL RARUS; STANLEY F. SAKOWSKI AND FLORENCE SAKOWSKI, HIS WIFE; BERNARD SCULLY AND MARCELLA SCULLY, HIS WIFE; JOSEPH P. SLEZAK AND JOSEPHINE SLEZAK, HIS WIFE; ARTHUR J. WALCZAK AND CATHERINE WALCZAK, HIS WIFE; DOUGLAS WHITAKER AND ELEANOR WHITAKER, HIS WIFE; HENRY WONDOWSKY AND HELEN WONDOWSKY, HIS WIFE; ALBERT F. SZCZEPANIK AND SOPHIE B. SZCZEPANIK, HIS WIFE; STANLEY GOLEMBIESKI, EXECUTOR OF THE ESTATE OF WALTER GOLEMBIESKI; AND HENRY V. KOWALESKI AND JANE KOWALESKI (FIRST NAME BEING FICTITIOUS), HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
JOHNS-MANVILLE PRODUCTS CORPORATION; EAGLE-PICHER INDUSTRIES, INC.; MADSEN-HOWELL, INC.; RAYBESTOS-MANHATTAN, INC.; GAF CORPORATION AND UNARCO INDUSTRIES, DEFENDANTS-RESPONDENTS, AND STATE INSULATION CORP., ET AL., DEFENDANTS. FRANK J. JARUSEWICZ AND MARY JARUSEWICZ, HIS WIFE; ROBERT J. RUTKOWSKI AND CAROLINE S. RUTKOWSKI, HIS WIFE; MICHAEL J. LEONARD AND ALFONSINA J. LEONARD, HIS WIFE; RUSSELL J. HAHN, AND JEAN HAHN, HIS WIFE; JERRY E. COVELL AND ALICE COVELL, HIS WIFE; HENRY J. KELEHER; HARRISON LARSEN; GEORGE W. OGBORNE AND JOAN OGBORNE, HIS WIFE; STANLEY R. PIATEK AND GLORIA J. PIATEK, HIS WIFE; MARTIN ROSENTHAL AND HELEN ROSENTHAL, HIS WIFE; JOHN O'BRIEN AND MARIJANE O'BRIEN, HIS WIFE; JOSEPH ZAKRZEWSKI AND IRENE A. ZAKRZEWSKI, HIS WIFE; ERNEST C. WEIBRECHT AND GAIL M. WEIBRECHT, HIS WIFE; WILLIAM MADELINE AND CHRISTINE T. MADELINE, HIS WIFE; CARLTON HOLTSLANDER AND JANE D. HOLTSLANDER, HIS WIFE; ALEXANDER HARANSKY AND DOROTHY HARANSKY, HIS WIFE; LAWRENCE A. MIZAK AND ANNA H. MIZAK, HIS WIFE; WARREN H. RAPPLEYEA, BY HIS ADMINISTRATRIX AD PROSEQUENDUM, KATHLEEN J. RAPPLEYEA; AND KATHLEEN J. RAPPLEYEA, EXECUTRIX OF THE ESTATE OF WARREN H. RAPPLEYEA, DECEASED, PLAINTIFFS-APPELLANTS, V. JOHNS-MANVILLE PRODUCTS CORPORATION; A.P. GREEN REFRACTORIES CO.; METROPOLITAN REFRACTORIES, DIVISION OF A.P. GREEN REFRACTORIES CO.; QUIGLEY CO., SUBSIDIARY OF PFIZER, INC.; EAGLE-PICHER INDUSTRIES, INC.; MADSEN & HOWELL, INC.; OWENS-ILLINOIS, INC. AND UNARCO INDUSTRIES, INC., DEFENDANTS-RESPONDENTS, AND J.H. FRANCE REFRACTORIES CORP., ET AL., DEFENDANTS. JOHN HANN AND MARY HANN, HIS WIFE; MICHAEL HOMYAK AND MARY HOMYAK, HIS WIFE; STANLEY J. NOWAKOWSKI AND ANN NOWAKOWSKI, HIS WIFE; DANIEL J. PUNTILLO AND DOROTHY PUNTILLO, HIS WIFE; JAMES A. THOMAS AND ANNA THOMAS, HIS WIFE; THADEUSZ FAIST AND BARBARA FAIST, HIS WIFE, PLAINTIFFS-APPELLANTS, V. JOHNS-MANVILLE SALES CORPORATION; EAGLE-PICHER INDUSTRIES, INC. AND OWENS-ILLINOIS, INC., DEFENDANTS-RESPONDENTS, AND PORTER HAYDEN CO., ET AL., DEFENDANTS. PETER BLAZEWICZ; VINCENT S. DMUCHOWSKI, SR. AND FRANCES DMUCHOWSKI, HIS WIFE; SPASE C. ELICK AND GERALDINE ELICK, HIS WIFE; FRANK R. T. LEE AND TERESA LEE, HIS WIFE; DAVID F. LINDSAY AND JANE LINDSAY, HIS WIFE; ALBERT F. MARRAPODI AND JANE MARRAPODI (FIRST NAME BEING FICTITIOUS), HIS WIFE; SALVATORE J. PALUMBO; NICHOLAS R. SOMMA AND IDA SOMMA, HIS WIFE; JOSEPH R. TROZZO AND JENNIE TROZZO, HIS WIFE; STANLEY S. WINNICKI AND JOSEPHINE WINNICKI, HIS WIFE; JOHN W. BARBER AND IRENE BARBER, HIS WIFE; JUSTIN D. FOLLO, SR., AND FLORENCE FOLLO, HIS WIFE; JAMES W. PAPP, AND ANNA PAPP, HIS WIFE, PLAINTIFFS-APPELLANTS, V. JOHNS-MANVILLE SALES CORPORATION; EAGLE-PICHER INDUSTRIES, INC. AND OWENS-ILLINOIS, INC., DEFENDANTS-RESPONDENTS, AND PORTER HAYDEN CO., ET AL., DEFENDANTS. DOROTHY BECKWITH, AS ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF EARL BECKWITH, PLAINTIFF-APPELLANT, V. JOHNS-MANVILLE SALES CORPORATION, SUCCESSOR TO AND IN LIEU OF JOHNS-MANVILLE PRODUCTS CORPORATION; JOHNS-MANVILLE CANADA, INC., FORMERLY KNOWN AS CANADIAN JOHNS-MANVILLE CO., LTD., CANADIAN JOHNS-MANVILLE AMIANTE, LTD., FORMERLY CANADIAN JOHNS-MANVILLE ASBESTOS, LTD., JOHNS-MANVILLE CORPORATION, UNARCO INDUSTRIES, FORMERLY KNOWN AS UNION ASBESTOS & RUBBER COMPANY; EAGLE-PICHER INDUSTRIES, INC., AND OWENS-ILLINOIS, INC., DEFENDANTS-RESPONDENTS, AND JOHN DOE CORPORATION, ET AL., DEFENDANTS. MARY CRILLEY, AS ADMINISTRATRIX OF THE ESTATE OF JAMES CRILLEY, AND MARY CRILLEY, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, V. ARMSTRONG CORK, ET AL., DEFENDANTS, AND EAGLE-PICHER INDUSTRIES, INC.; JOHNS-MANVILLE CORP.; JOHNS-MANVILLE SALES CORP.; JOHNS-MANVILLE PRODUCTS CORP.; OWENS-ILLINOIS, INC. AND RAYBESTOS-MANHATTAN, INC., DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Appellate Division.

For reversal -- Justices Pashman, Handler, Pollock, O'Hern and Sullivan, and Judge Matthews. For affirmance -- None. The Opinion of the Court was delivered by Pashman, J.

Pashman

The sole question here is whether defendants in a product liability case based on strict liability for failure to warn may raise a "state of the art" defense. Defendants assert that the danger of which they failed to warn was undiscovered at the time the product was marketed and that it was undiscoverable given the state of scientific knowledge at that time. The case comes to us on appeal from the trial court's denial of plaintiffs' motion to strike the state-of-the-art defense. For the reasons stated below, we reverse the trial court judgment and strike the defense.

I

These six consolidated cases are personal injury and wrongful death actions brought against manufacturers and distributors of asbestos products. Plaintiffs are workers, or survivors of deceased workers, who claim to have been exposed to asbestos for varying periods of time. They allege that as a result of that exposure they contracted asbestosis (a non-malignant scarring of the lungs), mesothelioma (a rare cancer of the lining of the chest, the pleura, or the lining of the abdomen, the peritoneum)*fn1 and other asbestos-related illnesses.

These cases involve asbestos exposure dating back perhaps as far as the 1930's. The suits are first arising now because of the long latent period between exposure and the discernible symptoms of asbestosis and mesothelioma. See Borel v. Fibreboard Paper Products Corporation, 493 F.2d 1076, 1083 (5th Cir. 1973). Plaintiffs have raised a variety of legal theories to support their

claims for damages. The important claim, for purposes of this appeal, is strict liability for failure to warn. Prior to the 1960's, defendants' products allegedly contained no warning of their hazardous nature. Defendants respond by asserting the state-of-the-art defense. They allege that no one knew or could have known that asbestos was dangerous when it was marketed.

There is substantial factual dispute about what defendants knew and when they knew it. A trial judge in the Eastern District of Texas, the forum for numerous asbestos-related cases, has concluded that "[k]nowledge of the danger can be attributed to the industry as early as the mid-1930's . . . ." Hardy v. Johns-Manville Sales Corp., 509 F. Supp. 1352, 1355 (E.D.Texas 1981) (footnote omitted). Defendants respond, however, that it was not until the 1960's that the medical profession in the United States recognized that a potential health hazard arose from the use of insulation products containing asbestos. Before that time, according to defendants, the danger from asbestos was believed limited to workers in asbestos textile mills, who were exposed to much higher concentrations of asbestos dust than were the workers at other sites, such as shipyards. Defendants claim that it was not discovered until recently that the much smaller concentrations those workers faced were also hazardous.

We need not resolve the factual issues raised. For purposes of plaintiffs' motion to strike the defense, we assume the defendants' version of the facts. The issue is whether the medical community's presumed unawareness of the dangers of asbestos is a defense to plaintiffs' claims.

II

As noted, this case involves six consolidated cases. Jarusewicz, et al. v. Johns-Manville, et al. is a suit by eighteen workers who were employed by Jersey Central Power and Light Company for various periods between 1930 and 1981, all of whom allege that they used asbestos, asbestos products or asbestos

materials in the course of their work. They allege that they were given no warning, handling instructions or safety equipment to protect them from the dangers of asbestos. Beshada, et al. v. Johns-Manville, et al. is a suit by twenty-one current or former pipefitters employed at Hercules, Inc. between 1935 and the present, who allege that they worked with and around insulation products containing asbestos. Blazewicz, et al. v. Johns-Manville, et al. and Hann, et al. v. Johns-Manville, et al. involve respectively twelve and six employees of Research Cottrell, Inc., between 1936 and 1979. Plaintiff in Beckwith, et al. v. Johns-Manville, et al. is the widow of an electrician, Earl Beckwith, who was exposed to finished asbestos products during his work. She alleges that her husband's exposure to asbestos caused various illnesses which resulted in his death. Finally, Crilley v. Cork, et al. is a wrongful death action by the widow of James Crilley, who died allegedly as a result of occupational exposure to insulation products containing asbestos.

A single trial judge has been specially assigned to hear all asbestos-related litigation in Middlesex County. On September 9, 1981, counsel for plaintiffs in four of the cases*fn2 filed a Motion for Partial Summary Judgment seeking to strike the state-of-the-art defense. Subsequently, plaintiffs in the other two cases joined the motion.

Plaintiffs based their motion on Freund v. Cellofilm Properties, Inc., 87 N.J. 229 (1981), our most recent case concerning product liability. In Freund, Justice Handler elaborated the difference between negligence and strict liability in a failure to warn case. He explained that in strict liability cases knowledge of the dangerousness of the product is imputed to defendants. Plaintiff need not prove that defendant knew or should have known of its dangerousness. The only issue is whether the product distributed by defendant was reasonably safe. Plaintiffs

urge that Freund disposed of the state-of-the-art issue. Since defendant's knowledge of the dangers of the product is presumed, it is irrelevant whether the existence of such dangers was scientifically discoverable. Defendants respond that Freund imputes to defendants only "existing knowledge, the technical knowledge available at the time of manufacture."

The trial judge denied the motion to strike. Reading Freund in conjunction with prior cases, Suter v. San Angelo Foundry & Machine Company, 81 N.J. 150 (1979) and Torsiello v. Whitehall Laboratories, 165 N.J. Super. 311 (App.Div.1979), the judge concluded that Freund merely created a rebuttable presumption that defendants had knowledge of the dangers of their product. That presumption could be overcome by proof that the knowledge at issue was "unknowable" at the time of manufacture.

Plaintiffs sought leave from the Appellate Division to appeal the trial court's interlocutory order and filed a motion with this Court for direct certification. The Appellate Division denied plaintiffs' motion for leave to appeal. In all but the Crilley case, plaintiffs moved before this Court for leave to appeal the Appellate Division order. We granted their motion on February 25, 1982, and subsequently granted plaintiff Crilley's late motion for leave to appeal.

III

Our inquiry starts with the principles laid down in Freund v. Cellofilm Properties, Inc., supra, Suter v. San Angelo Foundry & Machine Company, supra, and Cepeda v. Cumberland Engineering Company, Inc., 76 N.J. 152 (1978). In Suter, ...


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