On appeal from the Superior Court of New Jersey, Law Division, Camden County.
O'Brien, Havey and Conley. The opinion of the court was delivered by Conley, J.s.c. (temporarily assigned).
The opinion of the court was delivered by
CONLEY, J.S.C. (temporarily assigned).
Defendant Keene Corporation's*fn1 appeal from an adverse verdict in this asbestos personal injury litigation requires us to address the issue of whether a plaintiff in a failure to warn products liability case may rely upon what has frequently been referred to as the "heeding presumption" in proving proximate cause. Although other states have adopted such a presumption in failure to warn cases, we have not yet addressed the issue.
We now hold that plaintiffs in failure to warn asbestos products liability litigation may avail themselves of the presumption.
In 1951 when he was 27 years old, plaintiff George Coffman began his employment as an electrician at the naval shipyard in Philadelphia. In that capacity, plaintiff worked in cramped, confined, interiors of the various ships, carriers, or submarines that were being serviced, overhauled or constructed at the shipyard. Renovation or overhaul of a vessel entailed the removal of old, and the subsequent installation of new, asbestos insulation on pipes, boilers, and other surfaces throughout a vessel. Consequently, during a renovation or overhaul, asbestos dust and fibers were everywhere; they permeated the closed, shipboard environment as old insulation was ripped out and new insulation was installed. There was very little ventilation on board the ships during such overhauls because usually the ship's ventilation system was removed at the beginning of the work.
Plaintiff worked in the asbestos-laden environment of numerous naval vessels for varying amounts of time from April 1951 through July 1969, when he retired from the shipyard. During this period Keene was a chief supplier of asbestos insulating products installed on ships at the shipyard. There were no health warnings on any of the asbestos products Keene supplied.
Following his retirement from the shipyard in 1969, plaintiff began working at the Defense Industrial Supply Center in Philadelphia. During that employment, he had very little exposure to asbestos products. However, plaintiff did develop Paget's disease -- a degenerative bone condition -- while so employed and, because of that disease, he retired from federal service on a disability pension in 1976. From 1979 through 1988, plaintiff held a series of five jobs but was not exposed to asbestos dust or fibers while employed at any of those work places. In 1988, he retired from all employment.
In the summer of 1985 plaintiff sought medical treatment for another ailment and became aware of his asbestos-related medical problem at that time. He was referred to a radiologist who x-rayed his chest. The x-rays, he was told, showed he had an asbestos-related disease. A pulmonary specialist, Dr. William Morowitz, determined he had extensive scarring on both lungs and asbestos fibers in his lungs. Dr. Morowitz diagnosed asbestosis and informed plaintiff an annual medical monitoring was necessary to detect any developing lung cancer.
When plaintiff learned he had asbestosis, he was shocked, angry, and frightened. He recalled he had watched as a brother-in-law wasted away and died from asbestos-induced cancer at an earlier time. As a result, he testified at trial that he lived in ". . . constant worry, constant fear" that a similar fate awaited him.
During trial Keene requested the jurors be charged ". . . they must specifically find that the lack of a warning was the proximate cause of the injury . . . ." As part of this request, the Judge was also asked to tell the jury "they must find that the plaintiff would [not] have followed a warning had a warning been there." He rejected both requests. As to the latter, he said "[t]he law is to the contrary. It is presumed that [if] there was one [a warning] that he would follow [it]." As to proximate cause, then, the trial Judge instructed the jury plaintiff had to prove he incurred an asbestos-related injury which was proximately caused by the asbestos products. Specifically, the Judge explained "[b]y proximate cause is meant that the defendants' product was an efficient cause of the plaintiff's injury, that is, it was a substantial or significant factor in bringing about the injury." He thus gave a medical causation charge but did not give a defective product causation charge.
The jury returned a verdict finding plaintiff had an asbestosrelated injury, that seven of the nine named defendants (including Keene and Owens) had substantially contributed to that injury, and that Keene and Owens were 15% and 20% responsible,
respectively, for that injury. The jury awarded plaintiff $300,000 in damages for pain and suffering. The jury also found that plaintiff had a reasonable fear of cancer brought on by his exposure to defendants' asbestos. To compensate him for this emotional distress, the jury awarded him $100,000. Finally, the jury determined that Coffman had proven his need for future medical surveillance and awarded him $6,000 to meet that ongoing future expense.
On appeal, Keene argues the failure to instruct the jury plaintiff must prove, not only that the exposure to defendants' product was a proximate cause of medical injuries, but also that the absence of a warning on the product was a proximate cause of harm, was reversible error. Additionally it contends there was insufficient evidence to support the jury verdict of 15% responsibility for plaintiff's injuries and that the amount of damages for pain and suffering and fear of cancer was excessive. Finally it challenges an award of prejudgment interest.*fn2
It is not disputed that in order to establish strict liability a plaintiff must prove, in addition to a defect in the product, the element of proximate causation. In fact, in asbestos failure to warn cases, there are two separate components to a plaintiff's causation burden of proof. The asbestos-related injuries must be shown to have been proximately caused by exposure to a defendant's product ("medical causation"). Sholtis v. American Cyanamid Co., 238 N.J. Super. 8, 30-31, 568 A.2d 1196 (App.Div.1989). In addition, and pertinent to this appeal, ...