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CAMPOLONGO v. CELOTEX CORP.

March 1, 1988

Ann Mae Campolongo, Executrix of the Estate of Benjamin J. Campolongo, deceased; and Ann Mae Campolongo, individually, Plaintiff,
v.
The Celotex Corporation, et al., Defendants



The opinion of the court was delivered by: WOLIN

 WOLIN, District Judge

 A. BACKGROUND

 Recently this court commenced a product liability failure-to-warn trial involving insulation products containing asbestos. After jury selection, the case was settled. The warrant for the memorialization of this memorandum lies in the case management decision of the court with regard to the order of plaintiff's proofs, the elimination of conduct-related testimony and the severance of plaintiff's negligence and punitive damage claims from those sounding in strict liability. *fn1" More specifically, the quid pro quo for the relief sought was defendants' waiver of the affirmative defenses of assumption of the risk and superceding cause. Defendants also agreed to a jury instruction that an asbestos product without a warning is a defective product as a matter of law.

 Undeniably asbestos exposure litigation has created a court logjam of unprecedented dimension. It is estimated that "more than 30,000 asbestos personal injury claims were filed nationwide by 1986, and an additional 180,000 claims are projected to be on court dockets by the year 2010." In re School Asbestos Litigation, 789 F.2d 996, 1000 (3d Cir. 1986). The portent of this staggering and almost incomprehensible number of claims compels the legal and the judicial communities to mutually rethink the organic structure of a product liability trial, especially when it is premised on an asbestos-related injury. The magnitude of the problem invites the employment of extraordinary case management techniques provided they equally serve the litigants, the court and the ends of justice. See In the Matter of Asbestos Litigation Venued in Middlesex County, No. L-52237-81 (N.J. Super. Ct., Law Div.), aff'd, 99 N.J. 201, 491 A.2d 700 (1984) (severance of compensatory from punitive damage claims); Wilson v. Johns-Manville Sales Corp., 107 F.R.D. 250, 251 (S.D. Texas 1985) (suits of fifty asbestos claimants joined together for single trial on bifurcated issues of liability and punitive damages).

 This court has not concluded that it will be unable to afford every asbestos claimant a separate trial. Each of these trials tend to be lengthy affairs; yet this court also understands that an asbestos-related injury is often a devastating and fatal occurrence requiring prompt judicial attention. Therefore, a posthumous award, while easing the family's burden of loss, provides little solace or comfort to the injured plaintiff. Further, the specter of remediless claimants and culpable bankrupt corporations is a prospect more real than fanciful and a foundation for judicial concern. Fortuitous docket placement is a cruel and unkind measure for determining who shall share and share not.

 In the instant action Benjamin J. Campolongo, through his executrix, seeks inter alia compensatory and punitive damages. It is alleged that he was exposed to an array of asbestos products and ultimately contracted mesothelioma, a progressive and fatal disease. *fn2"

 B. ANALYSIS

 Rule 8(e)(2), a rule of pleading, focuses on pleading and not the order of proof at trial. *fn3" Though there exists authority permitting a plaintiff to plead and submit alternative theories to a jury without the necessity of election, Cartel Capital Corp. v. Fireco of New Jersey, 81 N.J. 548, 410 A.2d 674 (1980), this court is not bound by that authority; nor is it controlling that other district judges have chosen not to sever claims on past occasions. *fn4"

 On the other hand, Rule 42(b) provides:

 
"The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, or third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States."

 Although this rule is discretionary, its implications are clear. The litany of alternatives phrased in the disjunctive permit the trial court to define the contours of a trial, provided it preserves the inviolate right of trial by jury. In New Jersey, the forum state, courts have uniformly severed compensatory from punitive damage claims. *fn5" Similarly, in our neighboring state of Pennsylvania, both federal and state courts have engaged in varying severance procedures often staying the punitive damage claims for a period of one year. *fn6"

 The collective wisdom of these courts forged from the crucible of experience is a persuasive influences entitled to a substantial degree of judicial ...


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