The opinion of the court was delivered by: BISSELL
That equal protection question presents a significant issue of constitutional law, not dependent upon the facts of a particular case. It has been raised in many asbestos cases pending before different judges of this Court. Therefore, it is the Court's desire to issue a ruling which will govern all such actions under the current state of New Jersey law. On October 11, 1985 this Court entered an Order consolidating all its asbestos cases for the limited purpose of a common, single adjudication of this issue. For the reasons set forth hereafter, this Court determines that under New Jersey law the state-of-the-art defense is not available, against a strict liability claim, to a defendant-manufacturer of products containing asbestos, and that this rule, even if limited only to such defendants, does not violate their "equal protection" rights.
II. The Law of New Jersey
The history which has placed the Court in the present circumstances is well known to all involved with asbestos litigation in the State of New Jersey and accordingly will not be developed in great detail here. By way of brief review, we note the following:
In 1982 the New Jersey Supreme Court decided Beshada v. Johns-Manville, 90 N.J. 191, 447 A.2d 539 (1982), which expressly rejected the "state-of-the-art" defense in strict liability/failure to warn cases. However, on July 30, 1984, that same Court decided Feldman v. Lederle Laboratories, 97 N.J. 429, 479 A.2d 374 (1984), in which it dramatically altered this position. In Feldman, the Supreme Court ruled that actual and constructive knowledge of a defendant are relevant factors in determining whether it is strictly liable in a failure to warn case. However, the Court expressly refused to overrule Beshada. Instead, the Court restricted Beshada "to the circumstances giving rise to its holding." 97 N.J. at 455.
One month after Feldman, and in reliance on that decision, Owens-Illinois, an asbestos manufacturer, in a case entitled Heckman v. Johns-Manville, pending in the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2470-81, filed a motion in limine to permit it to introduce evidence at trial demonstrating its lack of actual and constructive knowledge regarding the health hazards its product posed to users. Recognizing the importance of the issue for hundreds of other asbestos cases pending in this state, the Honorable John E. Keefe, sua sponte, entered an Order noticing the motion under the general caption In the Matter of Asbestos Litigation Venued In Middlesex County, Docket No. L-52237-81, and invited the asbestos bar to file briefs and participate in oral argument.
Judge Keefe, after hearing oral argument on September 10, 1984, denied the motion on the ground that in light of Beshada and its treatment in Feldman, an asbestos manufacturer, under New Jersey law, was prohibited from relying on the state-of-the-art defense.
Defendant Owens-Illinois then moved before the Superior Court, Appellate Division, for leave to appeal the trial court's ruling and simultaneously petitioned the New Jersey Supreme Court for direct certification. On December 5, 1984, the Supreme Court entered an Order granting the request for direct certification and further:
ORDERED that leave to appeal is granted, and this Court, in Feldman v. Lederle Laboratories, 97 N.J. 429 [479 A.2d 374] (1984), having recognized that Beshada v. Johns-Manville, 90 N.J. 191 [447 A.2d 539] (1980) [ sic ], applies to all pending asbestos cases, the September 21, 1984 Order of the Superior Court, Law Division, (L-52237-81) is summarily affirmed.
In the Matter of Asbestos Litigation Venued In Middlesex County, 99 N.J. 201, 491 A.2d 700 (1984).
Thereafter, Owens-Illinois petitioned the New Jersey Supreme Court for a rehearing. The petition specifically sought clarification of the word "pending". On December 19, 1984, the motion for rehearing was denied and forwarded to counsel with a cover letter from the Clerk of the New Jersey Supreme Court which stated:
The request has been denied essentially because Judge Keefe's interpretation that the Court's prior order applies to all pending asbestos ...