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Sullivan v. Combustion Engineering

Decided: May 8, 1991.

ALBERT E. SULLIVAN AND PATRICIA SULLIVAN, HIS WIFE, PLAINTIFFS-APPELLANTS/CROSS-RESPONDENTS,
v.
COMBUSTION ENGINEERING; G.A.F. CORP., SUCCESSOR TO RUBBEROID CO.; GARLOCK, INC.; ARMSTRONG WORLD INDUSTRIES, INC.; EAGLE PICHER INDUSTRIES; OWENS CORNING FIBERGLASS CORP.; KEENE CORP., SUCCESSOR TO BALDWIN-EHRET-HILL, INC.; BABCOCK & WILCOX CO.; CHARLES F. GUYON; QUIGLEY; PITTSBURGH CORNING CORP., IN ITSELF AND AS SUCCESSOR TO UNARCO; PORTER HAYDEN CO.; PACOR A/K/A PHILADELPHIA ASBESTOS CORP.; J.H. FRANCE REFRACTORIES CO.; LYNDHURST METALS CORP.; PREVIOUSLY QC CORP.; B & D MANUFACTURING CO.; HOLMES INSULATION LIMITED; CELOTEX CORP.; IN ITSELF AND AS SUCCESSOR TO PHILIP CAREY MFG. CO.; FLINTKOTE CO.; RAYMARK INDUSTRIES, INC., SUCCESSOR TO RAYBESTOS-MANHATTAN; DELAWARE INSULATION COMPANY; DRESSER INDUSTRIES, INC.; FLEXITALLIC GASKET COMPANY; ROCK WOOL MANUFACTURING COMPANY; H.K. PORTER COMPANY, INC.; ATLAS TEXTILES; NICOLET INDUSTRIES, INC., IN ITSELF AND AS SUCCESSOR TO KEASBEY & MATTISON COMPANY; INDUSTRIAL SUPPLIES COMPANY; ANCHOR PACKING; E-Z CO.; J.W. ROBERTS LTD., A DIVISION OF TURNER & NEWALL, LTD.; ACANDS, INC.; JOHN DOE, INDIVIDUALLY AND AS A CORPORATION (FICTITIOUS NAME), DEFENDANTS, AND OWENS ILLINOIS, INC., AND FIBREBOARD CORPORATION, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS



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

Antell, O'Brien and Scalera. The opinion of the court was delivered by Antell, P.J.A.D.

Antell

[248 NJSuper Page 137] This personal injury suit was brought by Albert E. Sullivan (plaintiff) and Patricia Sullivan, his wife, against various manufacturers and distributors of certain asbestos products to which plaintiff was exposed for a period of 33 years during the course

of his employment. As a result of his exposure plaintiff developed thickening of the pleural lining of his lungs, an asbestos-related disease. The trial court dismissed his claim for present physical injury on the ground that the condition entails no loss of pulmonary function and because it is causing plaintiff no discomfort.

Dr. Donald Auerbach, plaintiff's medical expert, testified that, in 1981, plaintiff's chest x-rays first revealed the presence of asbestos-related pleural disease. He also stated that the scarring and thickening was permanent and its effect is to make the lining of the lungs "very hard . . . . [I]t can be just like shoe leather." Based on x-rays from 1981 to 1989 Dr. Auerbach noted that plaintiff's disease "has progressed," and "will progress." However, he indicated that symptoms such as breathing impairment, shortness of breath and coughing are only possible with extensive pleural scarring or thickening, that plaintiff's scarring is not extensive and that he is at present symptom-free. He acknowledged also that pleural thickening is the least serious of the asbestos-related diseases.

On the plaintiff's medical evidence the trial court dismissed plaintiff's claim of a present physical injury for the reason that "except for emotional damages and future damages for medical [surveillance] examinations" there could be no claim for damages arising from plaintiff's asbestos-related pleural disease.

The jury found against plaintiff on his claim for emotional distress and for punitive damages, but awarded him $2,255 for the anticipated cost of future medical surveillance. The principal point of plaintiff's appeal is that the trial court erred in dismissing his damage claim for present physical injury.

According to Restatement (Second) of Torts ยง 905, Comment b at 456 (1977), compensatory damages that may be awarded without proof of pecuniary loss include compensation for "bodily harm," which is defined as "any impairment of the physical condition of the body, including illness or physical pain." Thus, compensatory damages can be awarded for bodily

harm, "although there is no impairment of a bodily function and, in some situations, even though the defendant's act is beneficial." Id.

Herber v. Johns-Manville Corp., 785 F.2d 79 (3d Cir.1986), and Mauro v. Owens-Corning Fiberglas, 225 N.J. Super. 196, 542 A.2d 16 (App.Div.1988), aff'd, sub nom Mauro v. Raymark Industries, 116 N.J. 126, 561 A.2d 257 (1989), are instructive. In Herber, plaintiff was exposed to asbestos products during the course of his employment and was diagnosed as having asbestos-related pleural thickening. However, he had no symptoms such as coughing, wheezing or shortness of breath. Herber, supra, 785 F.2d at 88. Although the jury found that plaintiff's exposure to the asbestos fibers had caused pleural thickening, and that he had suffered a physical injury to his lungs, it decided that the sum of money that would fairly, reasonably, and adequately compensate him for his "injuries" was "none." Id. at 81. That determination was upheld on appeal, based upon the reviewing court's conclusion that the jury's determination was one which properly lay within its authority. Id. at 88-89.

In Mauro, too, plaintiff had suffered pleural thickening as a result of long-term exposure to asbestos. The jury awarded a total of $7,500 for his "claims of bodily injury, emotional distress, pain and suffering and medical surveillance." Mauro, supra, 225 N.J. Super. at 211, 542 A.2d 16. In its affirming decision, the Supreme Court observed that plaintiff's x-rays showed "scarring of the lung lining," and that "although the results of his physical examination and lung function test were 'normal,' he had bilateral thickening of both chest walls and calcification of the diaphragm." Mauro v. Raymark Industries, Inc., supra, at 116 N.J. 129-30, 561 A.2d 257. As here, there were no "physical symptoms evidencing plaintiff's distress." Id. at 137, 561 A.2d 257. The Supreme Court ...


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