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GOGOL v. JOHNS-MANVILLE SALES CORP.

October 16, 1984

THEODORE P. GOGOL and MADELINE GOGOL, his wife, Plaintiffs,
v.
JOHNS-MANVILLE SALES CORPORATION; Successor to Johns-Manville Products Corporation; JOHNS-MANVILLE CANADA, INC., formerly known as Canadian Johns-Manville Company, Ltd.; CAREY CANADIAN MINES, LTD.; Subsidiary of Panacon Corporation; OWENS ILLINOIS, INC.; KEENE CORPORATION; KEENE BUILDING PRODUCTS CORPORATION; RAYBESTOS-MANHATTAN, INC.; THE CELOTEX CORPORATION, Successor in interest to Philip Carey Manufacturing Co., Philip Carey Corp., Briggs Manufacturing Co., and Panacon Corp., OWENS CORNING FIBERGLAS CORPORATION; and JOHN DOE; FRED DOE; JAMES DOE; JOSEPH DOE; TOM DOE; HARRY DOE; ROBERT DOE; KEN DOE; DANIEL DOE; MICHAEL DOE; LARRY DOE; BEN DOE; and BILL DOE; and PITTSBURGH CORNING CORP., as successor in interest to Unarco Industries, Inc., Defendants; ROBERT J. SEMPLE and EVANGELINE SEMPLE, his wife, Plaintiffs, v. JOHNS-MANVILLE SALES CORPORATION, Successor to Johns-Manville Products Corporation; NICOLET INDUSTRIES, KEENE CORPORATION; KEENE BUILDING PRODUCTS CORPORATION; RAYBESTOS-MANHATTAN, INC.; THE CELOTEX CORPORATION, Successor in interest to Philip Carey Manufacturing Co., Philip Carey Corp., Briggs Manufacturing Co., and Panacon Corp.; ARMSTRONG CORK COMPANY, and JOHN DOE, FRED DOE, JAMES DOE, JOSEPH DOE; TOM DOE; HARRY DOE; ROBERT DOE; KEN DOE; DANIEL DOE; MICHAEL DOE; LARRY DOE; BEN DOE; and BILL DOE; and PITTSBURGH CORNING CORP., as successor in interest to Unarco Industries Corp., Defendants



The opinion of the court was delivered by: GERRY

 These are two asbestos cases which the court is treating together because the issues are identical. The plaintiffs allege that they contracted the disease of asbestosis as a proximate result of exposure to asbestos-containing products supplied by, among others, defendant Pittsburgh Corning, to the plaintiffs' employer.

 According to the certification of plaintiffs' counsel, plaintiffs were shipyard workers who worked in close proximity to an asbestos-containing product manufactured by Pittsburgh Corning. Plaintiffs allege that Pittsburgh Corning was negligent in failing to warn of known dangers associated with exposure to asbestos, and that Pittsburgh Corning sold a defective product (strict liability) because it did not contain proper warnings. Relevant to these causes of action is the question of what Pittsburgh Corning knew about the dangers of asbestos.

 The plaintiffs would like to introduce into evidence the deposition testimony of Richard Gaze, an officer of Cape Industries, a company which supplied raw asbestos fiber to Pittsburgh Corning. This deposition was taken in connection with two federal cases in Texas in which Pittsburgh Corning was a defendant. The deposition sets forth communications Mr. Gaze had with representatives of Pittsburgh Corning regarding the dangers of asbestos. The certification states that Gaze is unavailable to testify since he is beyond the territorial jurisdiction of the United States. Further, it is stated that Pittsburgh Corning was represented by counsel at the Gaze deposition and had an opportunity to cross-examine the witness and would have had an identical motive in cross-examining Gaze in the Texas cases as would be present in this case. The motion for admission of this testimony against Pittsburgh Corning only is based on Evidence Rule 804(b)(1).

 The plaintiffs are also moving to strike the state of the art defense raised by all defendants, claiming that as to the strict liability/failure to warn counts of the complaint, this defense is unavailable under New Jersey law. Further, defendant Raybestos-Manhattan, Inc. (Raymark) is moving for summary judgment on the issue of punitive damages.

 1. Rule 804(b)(1) provides:

 
The following [is] not excluded by the hearsay rule if the declarant is unavailable as a witness:
 
Testimony given as a witness . . . in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

 "Unavailability" is defined to cover a situation where the declarant cannot be procured by process or other reasonable means.

 The deposition testimony in question fits all the requirements of Rule 804: the declarant is unavailable, the testimony was given at a deposition, and Pittsburgh Corning, according to plaintiffs' counsel, was present and had the opportunity and motive to develop the testimony (regarding knowledge of dangers).

 Therefore, the testimony fits within the Rule 804 hearsay exception and may be admitted against Pittsburgh Corning. The court must here emphasize that our ruling is limited to the issue of admissibility under Rule 804. The defendant, Pittsburgh Corning, remains free at the time of trial to object to the testimony on other grounds. The court has not, in deciding this motion, expressed any opinion, for example, regarding the relevance or probativeness of the proffered testimony.

 The motion will be granted.

 2. The plaintiffs next move to strike the defendants' state of the art defense in connection with the strict liability count of the complaint. The strict liability count charges that the defendants' products were defective "for want of proper, sufficient, and adequate notice, warnings, instructions and packaging." The plaintiffs, according to the certification of counsel, will stipulate that their cause of action under the strict liability count is limited to the allegation of failure to warn. The certification states that the state of the art defense has been raised by all defendants as to all of plaintiffs' claims, strict liability included. It is argued that this defense is unavailable in New Jersey in strict liability/failure to warn cases.

 
As it relates to warning cases, the state-of-the-art defense asserts that distributors of products can be held liable only for injuries resulting from dangers that were scientifically discoverable at the time the product was distributed.

 Beshada v. Johns-Manville, 90 N.J. 191, 202, 447 A.2d 539 (1982). The Beshada court expressly rejected the state of the art defense in warning cases:

 
Essentially, state-of-the-art is a negligence defense. It seeks to explain why defendants are not culpable for failing to provide a warning.. . . But in strict liability cases, culpability is irrelevant. The product was unsafe. That it was unsafe because of the state of technology does not change the fact that it was ...

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