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Theer v. Philip Carey Co.

Decided: August 4, 1992.

ROSE MARIE THEER, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF JOSEPH THEER, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
v.
PHILIP CAREY CO., ET ALS.,*FN1 DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS. ROSE MARIE THEER, PLAINTIFF-APPELLANT/CROSS-RESPONDENT, V. PHILIP CAREY CO., ET ALS., DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS



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

Petrella, Arnold M. Stein and Kestin. The opinion of the court was delivered by Arnold M. Stein, J.A.D.

Stein

Rose Marie Theer sues for the wrongful death of her husband, Joseph, which she claimed resulted from his continued exposure to defendants' asbestos products during his working years; and for her own injuries resulting from secondary exposure to asbestos. She appeals the verdict of no cause for action entered on all claims.

Joseph Theer died of lung cancer on August 1, 1986. Many of the facts set forth in this opinion come from a pretrial deposition taken during his lifetime while he was pursuing a personal injury action and his wife a consortium claim against defendants.*fn2 Portions of his deposition were read into evidence at trial.

THE WRONGFUL DEATH CLAIM

Joseph Theer was born on January 17, 1928. From childhood he would frequently work as an apprentice alongside his father,

an asbestos worker. In 1942, at age fourteen, he spent his summer vacation carrying, mixing and applying asbestos materials at a General Motors military production plant. He dropped out of school after completing the ninth grade and began working full-time at a bakery. Decedent was inducted into the United States Army in 1946 and was honorably discharged in 1947 at age nineteen.

Following his military discharge, decedent immediately began a full-time apprenticeship as an asbestos worker with Local 89 of the Heat and Frost Insulation and Asbestos Workers of America, a Trenton-based union. Except for the years 1954 through 1957 when he was a cook at his father-in-law's restaurant, decedent spent the next twenty-nine years working as an asbestos insulator. He worked at hundreds of jobs where he inhaled asbestos dust to which he was constantly exposed as he unloaded, sawed, mixed and applied asbestos materials at the various job sites. During his working years, he regarded asbestos dust as a "dirty nuisance," an inconvenience that he felt had to be accepted as part of his work. In his words, "You didn't run away from it [asbestos dust]; you stayed right there and worked with it." He never wore a respirator or mask during his years of asbestos work.

Decedent testified in his deposition that he never saw a warning label informing him about the potential health hazards associated with asbestos on any of the asbestos products that he handled. The defense presented evidence that two manufacturers had continuously placed warnings on their asbestos products from 1964 to 1968. Those warnings were phrased in general terms and did not specifically mention lung cancer or death as possible consequences of exposure to asbestos dust.

Decedent was a heavy smoker. He smoked one to one and one-half packs of cigarettes a day for thirty years.

Sometime in the mid-1970's, toward the end of his working career, decedent may have obtained some knowledge about the hazards of asbestos from a source other than the product

manufacturers. His union published a quarterly magazine, Asbestos Worker. Decedent testified at his deposition that he had read about the dangers of asbestos in articles published in the magazine. He also testified that he was not sure when he may have read the article, whether in 1974, 1975 or later. Moreover, he could not recall specific articles or their content but could only recall that they "probably" contained information about some asbestos hazards, probably asbestosis. He was certain that he never read any articles that cancer was a possible consequence of asbestos exposure. Defendant said that he "didn't pay much attention to that" information because "[m]ost of the magazine stuff contained therein is pertaining to jobs."

In 1976, decedent was forced to retire from work for health reasons. He was suffering from severe chest pain. His breathing was so impaired that he was unable to climb stairs, scale scaffolding or unload trucks. He was later diagnosed as suffering from pulmonary asbestosis and asbestos-related pulmonary disease. He could no longer work as an asbestos insulator. In ...


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