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Dafler v. Raymark Industries Inc.

Decided: July 30, 1992.

FRANK DAFLER AND THERESA DAFLER, HIS WIFE, PLAINTIFF-APPELLANT, CROSS-RESPONDENT,
v.
RAYMARK INDUSTRIES, INC., GAF CORPORATION, CELOTEX CORPORATION, H.K. PORTER COMPANY, SOUTHERN TEXTILE CORPORATION, EAGLE-PICHER INDUSTRIES, INC., OWENS-ILLINOIS GLASS COMPANY, GARLOCK, INC., NICOLET, INC., JOHN DOE CORPORATIONS ONE THROUGH TEN, DEFENDANTS, AND KEENE CORPORATION, DEFENDANT-RESPONDENT, CROSS-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Camden County.

King, Gruccio and Brochin. The opinion of the court was delivered by King, P.J.A.D.

King

I

This appeal and cross-appeal are taken from a verdict in plaintiff's favor*fn1 and a jury's apportionment of responsibility between plaintiff and defendant in an asbestos product liability case. The case presents a question of first impression in this State concerning apportionment of damages for lung cancer between an asbestos producer and a cigarette smoker. The jury found that plaintiff contributed 70% to his lung cancer by cigarette smoking and that defendant Keene Corporation (Keene) contributed 30% to plaintiff's lung cancer by its asbestos products used in shipbuilding. The damage verdict for lung cancer was molded to reflect this apportionment. We conclude that both the apportionment by the jury and the general verdict in plaintiff's favor find reasonable factual support in the record and we affirm.

II

This is the procedural background. On October 10, 1986 plaintiff sued 11 defendants,*fn2 all manufacturers or distributors

of asbestos products. At the jury trial in May 1991 the only remaining defendant was Keene, which had stipulated to successor liability for the asbestos products of its predecessors, Ehret Magnesia Manufacturing Company and Baldwin-Hill Corporation. Plaintiff claimed that he developed asbestosis and lung cancer as a result of occupational exposure to asbestos during his six-year employment at the New York Shipyard in Camden, from 1939 to 1945.

On May 21, 1991 the jury returned liability and damage verdicts in plaintiff's favor. The jury found unanimously that "asbestos exposure was a substantial contributing cause of Mr. Dafler's lung cancer." The jury found Keene, through its predecessors, a substantial contributing cause and 95% responsible. The jury found Garlock, Inc., a defendant who had settled for $2,500 before trial, 5% responsible. The monetary awards were: for asbestosis, $60,000; for lung cancer, $140,000 -- an aggregate of $200,000. The $60,000 award for asbestosis was apportioned $52,500 to Mr. Dafler for his asbestosis injuries, $7,500 to Mrs. Dafler for her derivative claim. The $140,000 award for lung cancer was broken down as $122,500 to Mr. Dafler for his lung cancer, and $17,500 to Mrs. Dafler for her derivative claim.

As a result of these findings, the overall verdict of $200,000 was reduced by 5% to $190,000 because of the liability attributed to Garlock, Inc. The lung cancer verdicts alone were subjected to the 30/70% apportionment ratio between plaintiff and defendant Keene arrived at by the jury. The residual asbestosis injury award, of course, was not subject to apportionment

since it was all attributable to defendant Keene. The net aggregate award to plaintiff, after these adjustments for the settlement with Garlock, Inc. and the plaintiff's own contribution to his lung cancer by smoking, was $96,900.

The Judge entered an order on May 31, 1991 in a total amount of $123,108.21, which recognized prejudgment interest in the amount of $26,208.21 and post-judgment interest under R. 4:42-11. A credit of $3,532.98 pursuant to N.J.S.A. 2A:15-9 (credit for collateral sources) was later allowed. All post-trial motions by plaintiff and Keene attacking the verdict were denied.

Both plaintiff and Keene appeal. In this appeal plaintiff raises these claims of error: (1) there was insufficient evidence to allow the jury to apportion damages for plaintiff's lung cancer; (2) the Judge improperly influenced the jury's apportionment decision; and (3) there was insufficient evidence to prove Garlock was a substantial contributing factor to plaintiff's injury. Defendant's cross-appeal contends: (1) plaintiff did not establish that Keene's products were a proximate cause of his injuries; (2) the Judge improperly charged the jury on product nexus; and (3) the Judge improperly refused to allow the jury to consider whether lack of a warning was a proximate cause of plaintiff's injury.

III

These are the facts presented at trial. Plaintiff, Frank Dafler, age 70, worked as a shipfitter at the New York Shipyard in Camden from 1939 to 1945. During the World War II era New York Shipyard was one of the world's busiest ship building facilities, employing 36,000 men. During this period plaintiff worked on 12 to 13 ships. He could not recall the dates, but he remembered the names of the ships. He worked on the battleship, South Dakota; the light cruisers: Alaska, Cleveland, Guam, Hawaii and Montpelier; the carriers: Belleauwood, Cowpens, Cabot, Princeton, Independence, and Monterey; and a tender, Vulcan.

Dafler spent all of his time at the Shipyard working on board these ships. He spent about 70% of his time working in engine rooms and boiler rooms in very close proximity to the pipefitters who used asbestos and asbestos-containing products to cover the numerous pipes housed in those areas. Dafler himself did not work with asbestos, but he said it was all around him. The pipefitters and pipe coverers worked continuously, cutting and cementing pipes. He did not recall the brand names of any of the asbestos products because these products did not relate to his job as a shipfitter, working on the steel plating of the hull and bulkheads. He saw no health warning signs anywhere. No masks were used or provided. He did recall that the pipefitters' use of asbestos made the air very dusty. There was no ventilation in the boiler or engine rooms during construction. He described the asbestos, held in 80 to 100-pound bags, as "very, very dusty" and likened it to pulverized lime. He had no further exposure to asbestos after leaving the Shipyard.

Louis Joyce, also about age 70, testified as a witness on product identification and product nexus. He worked in the Shipyard for about two and one-half years, from 1942 to 1944. He was a helper or handyman to the mechanics in the sheet metal department, putting the permanent ventilation systems in the boiler rooms or engine rooms of the ships. In his job with the fabricating mechanics, he worked right next to the shipfitters. He described the overall work as a continuous "crashprogram," around-the-clock; sometimes the men worked double-shifts. He worked on board the ships about 90% of his time at the Shipyard.

Joyce remembered working on nine to ten ships. Of these, he remembered working on the battleship, South Dakota, and the carriers: Princeton, Independence, Langley, Cabot, Cowpens, Monterey, Bataan, Belleauwood, and San Jacinto. He also worked on a number of cruisers but could not give their names. Joyce and plaintiff named seven ships in common, not

including cruisers, where they both worked in the boiler and engine rooms.

Joyce and plaintiff did not know each other when they worked at the Shipyard. Up to about 500 people worked on a ship at the same time. Joyce recalled that the pipefitters and pipe coverers, who worked in the boiler and engine rooms, used Ehret asbestos pipe covering, Johns-Manville pipe covering, Baldwin Mono Block asbestos covering, and Ehret and Johns-Manville asbestos-cement bags.*fn3 He said that he observed these products daily during his employment at the Shipyard. He also recalled seeing Garlock gaskets used.

Joyce saw Ehret asbestos cement in bags "from the first week he worked to the last week." He said that he saw Ehret's asbestos pipe covering 80% of the time. He saw these Ehret cement bags daily, and on each of the nine or ten ships he worked on. He said that he saw more Ehret's pipe covering and cement than Johns-Manville. He saw no health warnings anywhere; there was no ventilation system operating during the time he worked in the ships.

Joyce said that the pipefitters' use of these asbestos products created dust to the extent that "it seemed like a snowstorm." Cleaners would use air hoses and "the stuff would be flying all over the place." When the pipe coverers were dumping the bags of cement and mixing cement, "the air was dusty. It was a loose type of cement like you would pour out and then they would have to get some water to try to mix it." Joyce said their clothes "were very dusty with various dust and fibers all over our clothes and in our hair. It was itchy and some of it you couldn't get off your clothes." He recalled that when Garlock gaskets were used, some were "punched put" on the work site, sending off asbestos dust. On a scale of one to 1,000 (highest) for dustiness, Joyce estimated that Garlock gaskets were one and the pipe covering and cement were 800 or 900.

The plaintiff began experiencing shortness of breath in the 1970s. In 1984 he went to the hospital for breathing problems. The diagnosis in 1984 was asbestosis. He then decreased the time that he worked between 1984 and 1989 because of his breathing problem. In 1984 he began seeing Dr. Agia, a pulmonary specialist, twice a year for x-rays and pulmonary function tests. In 1989 the doctors found a cancerous tumor in plaintiff's lung and surgery ensued. Since his surgery plaintiff has had limited mobility and physical capacity. Plaintiff said that he smoked cigarettes for almost 45 years, since age 18. He had a pack-a-day habit until his diagnosis of asbestosis in 1984 when he quit.

The plaintiff presented two medical experts: Dr. Guidice, a pulmonary specialist, and Dr. Stone, a pathologist. Dr. Guidice explained that the cause of plaintiff's asbestosis and later bronchogenic carcinoma, or lung cancer, was his occupational exposure to asbestos at the Shipyard. His opinion, and Dr. Stone's, on causation amply created a jury question on the claimed work-connected genesis of the lung cancer, a causation which defendant's expert, Dr. DeMopolous, a pathologist, denied completely. He thought that cigarettes alone caused the plaintiff's lung cancer.

The experts also testified on the epidemiological aspects of asbestosis and cigarette smoking. Dr. Guidice explained that there is a "base line" relative risk of 11 cases of lung cancer per 100,000 persons in the general population per year. This "base line" is for people in the general population who do not smoke and are not exposed to asbestos. The relative risk of lung cancer with industrial exposure to asbestos, like plaintiff's occupational exposure, increases five-fold (5:1), or to 55 cases per 100,000 of population per year. The relative risk with cigarette smoking increases ten-fold (10:1), or to 110 cases per 100,000 of population per year. The relative risk of exposure to asbestos plus cigarette smoking is not additive, i.e., 10 5 or 15-fold, but becomes what Dr. Guidice described as "multiplicative

or synergistic," or 50 times (50:1) the "base line," i.e., 550 cases per 100,000 of population per year.

Dr. Guidice could not apportion the causation of plaintiff's lung cancer between his asbestosis and his long-term cigarette smoking. He said when asked about apportionment: "No, and I don't know anybody that's able to do that. That's not possible. This relationship is synergistic and multiplicative between those two cancer causing agents. It's not possible to distinguish which contribution is caused by asbestos and which is caused by cigarette smoking." He conceded that the major cause of lung cancer in the United States is cigarette smoking.

Dr. Stone essentially agreed with Dr. Guidice on the epidemiological data. He thought the relative risk for cigarette smoking alone was about 10 to 12:1 above the "base line," the relative risk for asbestosis alone was about 6 to 7:1 above the "base line." He said that "the lung cancer was caused by the synergistic interaction of his cigarette smoking and asbestos exposure." He also agreed that cigarette smoking was by far the greatest cause of all lung cancers in the United States. He did not attempt to apportion responsibility, saying that "both were significant ...


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