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Kenney v. Scientific Inc.

Decided: January 13, 1986.

JOHN J. KENNEY AND MARY C. KENNEY, HIS WIFE, ET ALS., PLAINTIFFS,
v.
SCIENTIFIC, INC., ET ALS., DEFENDANTS



SUPERIOR COURT OF NEW JERSEY MIDDLESEX COUNTY-LAW DIVISION.

Joelson, J.s.c. (retired and temporarily assigned on recall).

Joelson

In this extraordinarily complicated case which will take uncommonly long to try, 106 plaintiffs have filed demands for trial by jury. Although many of the approximately 625 original defendants filed similar demands, most of them have now joined in the motions by Pitney, Hardin, Kipp & Szuch on behalf of 101 defendants alleged to have generated toxic wastes sent to a landfill, and by Sterns, Herbert & Weinroth, attorneys for the owners/operators of the landfill, to strike plaintiffs' demands for a jury trial. The only defendants, including third-party defendants, opposing the motions are 9 generators represented by Hoagland, Longo, Oropollo & Moran. Counsel representing the 25 haulers, although not directly opposing the motions, contend that a determination of the issue by this court would be premature at the present time. For the reasons to be expressed hereinafter, the motions to strike the demands for a jury trial will be granted.

In order to set forth these reasons, it is necessary to review in detail the nature and history of the case now under consideration. The 106 plaintiffs reside in the vicinity of landfills located in the Township of Edison. One of these landfills, Kin-Buc, is privately owned and operated. Another landfill adjoining Kin-Buc is owned and operated by the Township of Edison. Plaintiffs allege that because of the manner in which Kin-Buc dealt with toxic wastes, they suffered various physical and emotional disabilities and also property damage. Concerning the landfill of the Township of Edison, the complaint alleges that the township owned and operated its landfill near Kin-Buc, "thus further saturating the earth and causing additional percolation and/or complicating the hydrogeological conditions of the general area." Plaintiffs have brought their actions against the owners and operators of the landfills as well as against 525 private enterprises and six public entities which allegedly generated the toxic wastes hauled to Kin-Buc and against 25

haulers which transported the waste to Kin-Buc.*fn1 There have been many inter-group crossclaims for contribution and indemnification, i.e., generators against owner/operators of the landfill, generators against haulers, haulers against generators, etc.

To complicate further an already complicated matter, there has been a third-party action filed by the private owner/operators. This action has brought in 36 third-party defendants alleged to have "discharged hazardous, toxic or abnormally dangerous substances, pollutants and contaminants into the air, surface waters near the Kin-Buc Landfill in Edison, New Jersey, and the Raritan River, causing plaintiffs to be exposed to these hazardous, toxic or abnormally dangerous substances, pollutants and contaminants and proximately causing such injuries and damages as were sustained by the plaintiffs." This third-party action has also spawned numerous crossclaims, and has caused plaintiffs to add the 36 third-party defendants as new direct defendants. One of these third-party defendants and new direct defendants is a landfill across the Raritan River from Kin-Buc. According to an, as yet, unsubstantiated assertion of plaintiffs' counsel, that landfill (Edgeboro Disposal, Inc.) worked under some kind of arrangement whereby at times it accepted toxic wastes from Kin-Buc.

The court believes that the foregoing description of the nature and history of the matter justifies the statement herein-above that we are dealing with an extraordinarily complex case, the entire trial of which will be uncommonly lengthy. It is reasonable to estimate that the trial will take from six months to a year or more, exclusive of deliberations which will also be unusually time-consuming. In Kenney, et als. v. Scientific,

Inc., et als., 204 N.J. Super. 228 (Law Div.1985), this court stated that it would be desirable that because of the complexity of the case, it be divided into a series of separate trials. Although still of the opinion that such a course would be desirable, the court upon further consideration has concluded that a procedure of fragmented individual trials would not be feasible, as it would entail much overlapping and repetitive testimony at each segment. All aspects of liability and crossclaims for contribution and indemnification are so inter-related and interwoven that successive juries would have to know what had transpired before in order to achieve an understanding of the fragmented issue which they would be called upon to resolve.

Of course, it is not uncommon for there to be bifurcated trials as to liability and damages. However, even such bifurcation could pose difficulty in this case. All plaintiffs seek punitive damages against all defendants. Although generators which are public entities are immune under N.J.S.A. 59:9-2c from the award of punitive damages, all other defendants enjoy no such immunity. Thus, if the trier of fact should determine under Berg v. Reaction Motors Div., 37 N.J. 396, 413 (1962) that "there has been a deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences," id. at 414, punitive damages may be imposed upon such non-public entity defendants. Although the test for the award of punitive damages is a demanding one, such damages may be awarded against a defendant who has displayed "such a conscious and deliberate disregard of the rights of others that his conduct may be called willful or wanton." Prosser & Keeton, Torts (5 ed. 1984), ยง 2 at 9-10.

In the event the trier of fact as to liability should decide that punitive damages should be granted, then the new trier of fact in the bifurcated damages trial would be required to decide how large an award is sufficient in order to punish a given defendant. However, this could not be accomplished unless the new trier of fact be apprised of all the underlying circumstances

which formed the basis of the conclusion of the first trier of fact that punitive damages should indeed be awarded. This would entail a repetition of the testimony already adduced. It would also entail an examination into the financial status of each defendant in order to determine how large a verdict should be in order to constitute adequate punishment. Leimgruber v. Claridge Associates, Ltd., 73 N.J. 450, 458 (1977).

These difficulties would not arise if the first trier of fact should deny punitive damages, but even a bifurcated trial on damages of only a compensatory nature would take a very long time because 106 plaintiffs would have to prove their separate damages. To break down the damages aspect by having a separate trial for each plaintiff or cluster of plaintiffs in order to protect jurors from the hardship of months of service would require numerous jury selections, thereby needlessly consuming the time of all concerned, including the court system. Furthermore, even though under R. 1:8-3(c), "[p]arties represented by the same attorney shall be deemed 1 party" for the purpose of peremptory challenges, there would still be an unusually large number of peremptory challenges because of the large number of attorneys in this case. Since there are 154 lawyers representing defendants or groups of defendants, and since R. 1:8-3(c) would allow each attorney six peremptory challenges, each trial for damages would entail 930 peremptory challenges, including those of plaintiffs, if liability is found to be established against all defendants. Furthermore, under R. 1:8-3(c) the number of such challenges would not diminish, if liability should not be established against a given defendant, if the attorney for that successful defendant remains in the case as counsel for another defendant or defendants.

It should also be mentioned that bifurcation as to liability and damages would bring about overlapping witnesses. In the trial on liability, plaintiffs will be obligated to prove a causal connection between their alleged physical ailments and the toxic substances stored, generated or hauled by the various defendants. Thus, testimony of medical experts will be produced at

the liability trial concerning the nexus between the physical ailments and the toxic substances. The testimony of these same medical experts will be needed as to damages because these experts will have to testify about treatment rendered, disability incurred, and the reasonable probability of disability and treatment in the future. See Coll v. Sherry, 29 N.J. 166, 174-175 (1959). This overlapping can be avoided if there is no bifurcation.

This court trusts that its discussion will clearly reveal that in granting the motion to strike the demands for trial by jury, it has no intention of flouting constitutional requirements, but believes that constitutional provisions must be interpreted in such a manner as to conclude that a jury trial is not constitutionally mandated, regardless of circumstances, in every civil case where the amount in controversy is above a given amount.

The Seventh Amendment to the United States Constitution provides that in suits "at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." In Morin v. Becker, 6 N.J. 457, 462 (1951), Chief Justice Vanderbilt writing for the court declared that "sovereign states . . . are not subject to the Seventh Amendment." However, that question is rendered academic by reason of Article I, paragraph 9 of the 1947 New Jersey Constitution which provides that "[t]he right of trial by jury shall remain inviolate."

It is well established that "[t]he right of trial by jury protected in each of our [New Jersey] Constitutions is the right as it existed at common law and remained on July 2, 1776." Montclair v. Stanoyevich, 6 N.J. 479, 485 (1951). To the same effect, see also Manetti v. Prudential Property & Cas. Ins. Co., 196 N.J. Super. 317, 320 (App.Div.1984); Peterson v. Albano, 158 N.J. Super. 503, 506 (App.Div.1978). In Longo v. Reilly, 35 N.J. Super. 405, 410 (App.Div.1955), in what should be ...


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