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Oliviero v. Porter Hayden Co.

Decided: June 1, 1990.

RALPH L. OLIVIERO AND MARIE OLIVIERO, PLAINTIFFS-APPELLANTS,
v.
PORTER HAYDEN COMPANY, AS SUCCESSOR TO REID HAYDEN CO.; EAGLE PICHER INDUSTRIES, INC., DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Middlesex County.

Deighan and Brochin. The opinion of the court was delivered by Deighan, J.A.D.

Deighan

Plaintiffs Ralph and Maria Oliviero filed an action against 19 suppliers, manufacturers and distributors of asbestos. The complaint alleged that Ralph Oliviero had contracted asbestosis from exposure to defendants' products while working as a materials technician at the American Cyanamid Company in Boundbrook between 1953 and 1982. Maria Oliviero sued per quod.

During discovery, plaintiffs answered a number of standard Middlesex County asbestos interrogatories, as well as several supplemental interrogatories. They also submitted a witness list containing the names of 118 witnesses. Among those named on this list, which was submitted ten days prior to trial, were Anthony Jannone, the purchasing agent for American Cyanamid and Samuel Jannone, a laborer.

Trial commenced on February 2, 1989. At this point, plaintiffs had settled with all of the defendants except the Porter Hayden Company (Porter Hayden), Eagle Picher Industries, Inc. (Eagle Picher) and Owens-Corning Fiberglass Corporation (Owens-Corning). Pursuant to a general order on asbestos litigation issued in 1982 by the Law Division in Middlesex County, Ozzard, Wharton Klein, Mauro, Savo & Hogan of Somerville was designated as lead counsel; McCarter & English was designated as medical counsel.

On the fourth day of trial, plaintiffs' attorney called Anthony Jannone as a witness. Jannone testified about several asbestos products manufactured by Porter Hayden and Eagle Picher which had been present on American Cyanamid's premises

during the term of Ralph Oliviero's employment. While defendants made several objections during the course of this testimony, they did not object to Jannone's appearance as a witness. On the next day, however, defendants moved for a mistrial on the grounds that Anthony Jannone had not been listed in plaintiffs' answers to interrogatories and had never been deposed. Counsel claimed that they had confused Anthony Jannone with Samuel Jannone, who had been listed in plaintiffs' answers to interrogatories and subsequently deposed. They argued that Anthony Jannone's testimony was severely prejudicial. Plaintiffs' trial attorney, who was not the lawyer who prepared plaintiffs' file, was unaware that Anthony Jannone had not been listed in plaintiffs' answers to interrogatories.

While the court believed that plaintiffs' attorney had made an honest mistake, it found that Jannone's testimony was "extremely damning" and granted defendants' motion for a mistrial. At the second trial, plaintiffs' attorney requested the right to call Jannone as a witness, arguing that defendants had already heard his testimony and cross-examined him. The trial court denied this request. On appeal by plaintiffs, this court reversed and allowed Jannone to testify in the second trial. However, we instructed the Law Division to "assess reasonable costs, payable by plaintiffs' counsel to the Superior Court Clerk and not to be reimbursed by plaintiffs for the waste of publicly supported judicial resources occasioned by counsel's default and the resulting mistrial order." This court also noted that:

We view counsel's conduct as, at best, grossly negligent. We are advised defendants' counsel have moved for costs in the trial court. Our order shall not affect the outcome of their motion.

In a subsequent motion for attorneys' fees, defendants' lawyers certified the reasonable value of their services at $16,660 during the aborted first trial.*fn1 Although the trial court granted

their motion, it awarded only $2,400 per attorney,*fn2 for a total of $9,600. In addition, it ordered plaintiffs' attorney to pay $2,346 in court costs. The court further ordered plaintiffs not to reimburse their attorney for these expenses. These ...


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