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Theer v. Philip Carey Co.

Decided: July 26, 1993.

ROSE MARIE THEER, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF JOSEPH R. THEER, DECEASED, PLAINTIFF-RESPONDENT,
v.
PHILIP CAREY CO.; PHILIP CAREY MANUFACTURING CO.; SMITH AND KANZLER, CO.; CELOTEX, INC., INDIVIDUALLY AND AS SUCCESSOR TO PHILIP CAREY CO., PHILIP CAREY MANUFACTURING CO. AND SMITH AND KANZLER CO.; COMBUSTION ENGINEERING, INC.; EAGLE PICHER INDUSTRIES, INC.; PABCO, INC.; THE RUBEROID COMPANY; MANVILLE CORPORATION; JOHNS-MANVILLE CORPORATION; JOHNS-MANVILLE PRODUCTS CORPORATION; JOHNS-MANVILLE SALES CORPORATION; EHRET MAGNESIA MANUFACTURING CO.; BALDWIN-EHRET-HILL, INC.; KEASBEY & MATTISON CO.; NICOLET INDUSTRIES, INC., INDIVIDUALLY AND AS SUCCESSOR TO KEASBEY & MATTISON, CO.; TURNER & NEWALL, P.L.C., AS ALTER EGO OF KEASBEY & MATTISON CO.; OWENS-CORNING FIBERGLAS CORPORATION; UNARCO INDUSTRIES, INC.; ARMSTRONG WORLD INDUSTRIES, INC., FORMERLY KNOWN AS ARMSTRONG CORK CO.; EMPIRE ACE INSULATION MANUFACTURING CORPORATION AND JOHN DOE 1 THROUGH JOHN DOE 50, DEFENDANTS, AND FIBREBOARD CORP., INDIVIDUALLY AND AS SUCCESSOR TO PABCO, INC.; GAF CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO THE RUBEROID COMPANY; KEENE CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO EHRET MAGNESIA MANUFACTURING CO. AND BALDWIN-EHRET-HILL, INC.; OWENS-ILLINOIS, INC. AND PITTSBURGH CORNING CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO UNARCO INDUSTRIES, INC., DEFENDANTS-APPELLANTS. ROSE MARIE THEER, PLAINTIFF-RESPONDENT, V. PHILIP CAREY CO.; PHILIP CAREY MANUFACTURING CO.; SMITH AND KANZLER, CO.; CELOTEX, INC., INDIVIDUALLY AND AS SUCCESSOR TO PHILIP CAREY CO., PHILIP CAREY MANUFACTURING CO. AND SMITH AND KANZLER CO.; COMBUSTION ENGINEERING, INC.; EAGLE PICHER INDUSTRIES, INC.; PABCO, INC.; THE RUBEROID COMPANY; MANVILLE CORPORATION; JOHNS-MANVILLE CORPORATION; JOHNS-MANVILLE PRODUCTS CORPORATION; JOHNS-MANVILLE SALES CORPORATION; EHRET MAGNESIA MANUFACTURING CO.; BALDWIN-EHRET-HILL, INC.; KEASBEY & MATTISON CO.; NICOLET INDUSTRIES, INC., INDIVIDUALLY AND AS SUCCESSOR TO KEASBEY & MATTISON CO.; TURNER & NEWALL, P.L.C., AS ALTER EGO OF KEASBEY & MATTISON CO.; OWENS-CORNING FIBERGLAS CORPORATION; UNARCO INDUSTRIES, INC.; ARMSTRONG WORLD INDUSTRIES, INC., FORMERLY KNOWN AS ARMSTRONG CORK CO.; EMPIRE ACE INSULATION MANUFACTURING CORPORATION; JOHN DOE 1 THROUGH JOHN DOE 50, AND INDUSTRIAL HEALTH (HYGIENE) FOUNDATION, DEFENDANTS, AND FIBREBOARD CORP., INDIVIDUALLY AND AS SUCCESSOR TO PABCO, INC.; GAF CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO THE RUBEROID COMPANY; KEENE CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO EHRET MAGNESIA MANUFACTURING CO. AND BALDWIN-EHRET-HILL, INC.; OWENS-ILLINOIS, INC. AND PITTSBURGH CORNING CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO UNARCO INDUSTRIES, INC., DEFENDANTS-APPELLANTS



On certification to the Superior Court, Appellate Division, whose opinion is reported at 259 N.J. Super. 40 (1992).

The opinion of the Court was delivered by Handler, J.

Handler

[133 NJ Page 613] In this case, an asbestos fitter was exposed over a long period to asbestos in the workplace. He died from lung cancer allegedly

caused in part from asbestos-related injuries resulting from his exposure to this hazardous substance. Decedent's surviving wife was indirectly exposed to asbestos in the course of handling decedent's work clothes and, as a result, is allegedly at risk of contracting asbestos-related disease. In a strict-product-liability action brought by the surviving wife individually and on behalf of decedent, plaintiff asserted that defendants were liable because of their failure to provide adequate warnings of the dangers from exposure to asbestos.

In the companion case, Coffman v. Keene, 133 N.J. 581, 628 A.2d 710 (1993), decided today, we held that a plaintiff in a failure-to-warn product-liability case is entitled to a presumption that had a warning been given, it would have been heeded; that such a presumption is rebuttable by evidence sufficient to demonstrate that had a warning been provided, it would have been disregarded by the plaintiff; and that if the presumption is not rebutted, the failure to warn is presumed to be a proximate cause of the plaintiff's injuries.

In this case, we are similarly asked to determine the applicability of a heeding presumption in a failure-to-warn product-liability case. Further, we are asked to consider specifically whether the evidence relating to decedent's conduct was sufficient to overcome the heeding presumption. That inquiry, in turn, raises the issue, directly presented in this case, but also considered and resolved in Coffman, of whether the fact that the unsafe product was used in the workplace and the resultant injury was work-related is material in defining and applying the heeding presumption.

This appeal also presents two other issues. One is whether, in the asbestos context, a plaintiff, in the absence of any manifest asbestos-related condition, can recover as compensatory damages the cost of future medical surveillance to monitor his or her health necessitated by the indirect exposure to asbestos. A final issue relates to the admissibility of an expert's opinion with respect to medical causation that was contained in an autopsy report that was otherwise admissible in evidence as a business record.

I

Joseph Theer died of lung cancer after a lifetime spent as an asbestos worker. His wife, Rose Marie Theer, the plaintiff in this case, brought an action in strict product liability on behalf of decedent and individually against various asbestos manufacturers that had supplied the products with which decedent had worked. She contends that her husband's injuries, as well as several of her own ailments, were caused by exposure to defendants' products. At present, only two defendants, Philip Carey Co. and GAF Corporation, remain in this action.

Decedent was first exposed to the product when he interned as an asbestos mixer at a General Motors Plant in 1942 at age fourteen. He recommenced full-time work as an asbestos insulator after his discharge from the army in 1947. He worked with asbestos for almost twenty-nine years. During his work, decedent never wore a mask or any other protective gear. Despite the fact that two manufacturers had supplied warnings in 1964 and 1968, decedent never saw any warning labels on the products he used. However, in a deposition taken prior to his death, decedent acknowledged that he had seen an article in a union magazine in the mid-1970s that discussed asbestosis.

In 1976, decedent retired in ill health. He was diagnosed as having pulmonary asbestosis and asbestosis-related pulmonary disease. At that time, he quit his thirty-year, one-and-a-half pack-a-day smoking habit. In 1984, decedent contracted lung cancer. After unsuccessful surgery, the cancer spread to his scalp and brain. He died of lung cancer in 1986. At trial, the issue of medical causation was sharply contested. The experts for plaintiff testified that there was a synergistic interaction between exposure to asbestos and cigarette smoking. They expressed the opinion that decedent's exposure to asbestos was a substantial factor in the causation of his lung cancer.

Plaintiff, decedent's wife, had also come into contact with asbestos dust through years of washing her husband's clothing. In 1970, at age thirty-eight, Mrs. Theer underwent heart surgery to

repair a mitral valve. In 1981, doctors treated her for right lung pneumonia. Finally, in 1985, plaintiff had surgery to remove a rounded atelectasis from her right lung. Mrs. Theer stated that her health problems stemmed from her exposure to asbestos. However, she had also smoked a pack of cigarettes a day for thirty-six years. Experts testified that Mrs. Theer's exposure to asbestos dust on her husband's clothes had caused the mass in her lung and had increased her risk of developing lung cancer. Because of the increased risk of cancer, her doctors recommended life-long medical surveillance. Defendants' experts disagreed and alleged that the mass was due to pleural thickening from her bout with pneumonia.

The jury concluded, by answering a special interrogatory, that decedent had not proven that the lack of warning was the proximate cause of decedent's asbestos-related injuries. The court consequently entered a verdict of no cause of action. With regard to Mrs. Theer's injuries, the jury found that she did not have an asbestos-related injury. Accordingly, the court did not allow the jury to reach her claim for damages for emotional suffering and costs of medical surveillance based on the increased risk of cancer.

The Appellate Division reversed and remanded in part. 259 N.J. Super. 40, 611 A.2d 148 (1992). With respect to proof of causation, the parties raised the issue of whether plaintiff was entitled to a heeding presumption, but the court declined to rule on whether the presumption should be applied. The court, nevertheless, determined that the jury, as reflected in its answer to a special interrogatory, had found that defendants' warnings were inadequate and that those inadequate warnings had contributed substantially to decedent's cancer. Accordingly, the Appellate Division held that plaintiff had met her burden of proof with respect to whether the lack of a warning had caused decedent's injuries. Id. at 47, 611 A.2d 148. On remand, the sole issue to be considered with respect to the wrongful death action was that relating to damages. Ibid.

The Appellate Division also determined that the trial court had incorrectly held that Mrs. Theer had to prove that she had contracted an asbestos-related injury in order to recover damages for the costs of medical surveillance attributable to the exposure of asbestos. Id. at 49, 611 A.2d 148. The issue was remanded for the jury to determine whether she required additional medical surveillance stemming from asbestos exposure above and beyond her current medical treatment. Ibid.

The Appellate Division further noted that the autopsy report contained the opinion of the medical expert that a synergistic interaction existed between asbestos exposure and cigarette smoking and that the asbestos exposure was a cause of decedent's lung cancer. It ruled that that opinion was admissible in evidence under Evidence Rule 56(2) as information relied on by experts in the field. Id. at 48, 611 A.2d 148. The court further concluded that the reading of the report with that opinion would have constituted harmless error at most in light of other evidence relating to medical causation. Ibid.

We granted the petition for certification, 130 N.J. 601, 617 A.2d 1223 (1992). It raises three issues: whether the record contains sufficient evidence of causation and whether a heeding presumption should be applied with respect to proof of causation; whether costs of medical surveillance are available as compensatory damages for one exposed to asbestos; and whether expert opinion on medical causation contained in an autopsy report is admissible evidence.

II

The dispute in this case concerning proximate causation has two aspects. One relates to the significance of answers to special interrogatories, the other involves the use of a heeding presumption. These considerations, although analytically distinct, are interrelated because both are relevant to the issue of causation, specifically, to whether the failure to warn was a product defect that constituted a substantial cause of decedent's injuries.

The parties in this case have presented strong opposing arguments over whether the trial court should have applied the heeding presumption to allow plaintiff to prove that the absence of a warning had proximately caused decedent's injuries. Plaintiff contends that she should have been afforded the benefit of the presumption that decedent would have followed an adequate warning had one been provided by defendant. She argues further that because the injury occurred in the workplace, the heeding presumption should encompass the fact that decedent had no meaningful choice with respect to following warnings had they been given. Defendants, in turn, contend that the presumption should not be available. They also argue that specific evidence proffered about decedent's conduct demonstrates that he would not have followed a warning had one been provided. Hence, defendants claim, that evidence was sufficient to overcome such a presumption and to render it inapplicable.

We explained in Coffman that in asbestos failure-to-warn cases, a plaintiff must normally prove two separate elements of causation. The plaintiff must demonstrate that his or her injuries were proximately caused by exposure to defendant's asbestos product. That is known as "medical causation." The plaintiff must also demonstrate so-called product-defect causation -- that the defect in the product was a proximate cause of the injury. Because the alleged product defect is the failure to provide warnings, the plaintiff is required to prove that the absence of a warning was a proximate cause of his or her harm. 133 N.J. at 594-595, 628 A.2d at 716.

We also pointed out in Coffman that the heeding presumption in failure-to-warn cases serves to ease an injured plaintiff's burden of proof. That objective is especially important because "'in a failure to warn case, establishing that the absence of a warning was a substantial factor in the harm alleged to have resulted from exposure to the product itself is particularly difficult.'" Id. at 600, 628 A.2d ...


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