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Coffman v. Keene Corp.

Decided: July 26, 1993.

GEORGE COFFMAN, PLAINTIFF-RESPONDENT, AND ELIZABETH COFFMAN, HIS WIFE, PLAINTIFF,
v.
KEENE CORPORATION, IN ITSELF AND AS SUCCESSOR TO BALDWINEHRET-HILL, INC., DEFENDANT-APPELLANT, AND PITTSBURGH CORNING CORP., IN ITSELF AND AS SUCCESSOR TO UNARCO; H.K. PORTER CO.; RAYMARK INDUSTRIES, INC., SUCCESSOR TO RAYBESTOS-MANHATTAN, INC.; OWENS-ILLINOIS, INC.; OWENS CORNING FIBERGLAS CORP.; GARLOCK, INC.; FIBREBOARD CORP.; CELOTEX CORPORATION, IN ITSELF AND AS SUCCESSOR TO PHILIP CAREY MANUFACTURING CO.; GAF CORPORATION, IN ITSELF AND AS SUCCESSOR TO RUBEROID CORP.; SOUTHERN TEXTILE CO., SUCCESSOR TO SOUTHERN ASBESTOS CO.; EAGLE-PICHER INDUSTRIES, INC.; FLEXITALLIC GASKET CO.; NICOLET, INC., IN ITSELF AND AS SUCCESSOR TO KEASBEY AND MATTISON CO.; ARMSTRONG WORLD INDUSTRIES, INC.; ROCK WOOL MANUFACTURING CO.; FLINTKOTE CO.; J.W. ROBERTS, LTD., A DIVISION OF TURNER & NEWALL, LTD.; ACANDS, INC.; AMCHEM PRODUCTS, INC.; BENJAMIN FOSTER DIV.; AND JOHN DOE CORPORATIONS (1-20), DEFENDANTS



On certification to the Superior Court, Appellate Division, whose opinion is reported at 257 N.J. Super. 279 (1992).

For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Handler, J.

Handler

In this case, plaintiff, a former naval electrician, was exposed to various quantities of asbestos during his work inside the close quarters of naval vessels. He sued defendant, Keene Corporation, and others for injuries allegedly contracted from exposure to defendant's products in the workplace.

Plaintiff claimed that defendant had violated its duty to warn consumers of the health hazards associated with asbestos products. Defendant took the position that the absence of such a warning did not proximately contribute to plaintiff's injuries because there was no evidence proffered that plaintiff would have followed such a warning, and therefore no proof that the failure to warn had contributed to plaintiff's injuries. At trial, the court instructed the jury to presume that plaintiff would have followed a warning had one been provided. That presumption, in the absence

of any evidence to the contrary from defendant, allowed plaintiff to meet his burden of proof that the lack of a warning on defendant's products had caused his ailments.

This case, and the companion case, Theer v. Philip Carey Co., 133 N.J. 610, 628 A.2d 724 (1993), decided today, pose the issue of whether, in a strict liability failure-to-warn case, we should recognize a rebuttable presumption that had a warning been provided by the manufacturer, the plaintiff would have heeded that warning by acting to minimize the risk of injury, and whether that presumption, if unrebutted, may constitute proof that a defendant's failure to warn contributed to the plaintiff's injuries.

I

In 1951, plaintiff, George Coffman, commenced work at the Philadelphia naval shipyard as an electrician. In that post, he worked in the cramped interiors of various ships and vessels that were being serviced and overhauled. Coffman worked inside those ships until his retirement in July 1969.

As an electrician, Coffman was required to remove electric cables and to repair and replace those cables. Electricians worked throughout the ship in various compartments, including the fire rooms, engine rooms, galleys, and passageways. When Coffman was present on naval ships, he was exposed to various quantities of asbestos. Much of the asbestos had been provided by defendant, Keene Corporation. During the renovation of a ship, old insulation from pipes and boilers was normally removed and replaced with new asbestos insulation. Because the ships had little ventilation on board, asbestos fiber and dust lingered in the air. Plaintiff claims to have worked almost always within two to four feet from tradesmen who were installing the asbestos insulation.

In addition to Coffman's "bystander" exposure to asbestos products, he also had direct contact with asbestos in that shipyard. Often he would cut into asbestos insulation to mount brackets or

install new cable. None of the asbestos products supplied by Keene contained any health or safety warnings.

After his retirement, plaintiff began working at the Defense Industrial Supply Center in Philadelphia. In that new post, Coffman had very minimal exposure to asbestos. He was, however, diagnosed with Paget's disease -- a degenerative bone condition. He subsequently retired on a disability pension in 1976. From 1979 to 1988, Coffman held numerous jobs, none of which exposed him to asbestos. In 1988, he permanently retired from the workforce.

In 1985, during the course of seeking other medical treatment, plaintiff discovered that he suffered from asbestos-related injuries. Coffman had his chest X-rayed. Based on the X-ray, a pulmonary specialist determined that Coffman had extensive scarring on both lungs as well as asbestos fibers in the lungs. He was diagnosed as having pulmonary asbestosis. Coffman was required to undergo annual medical monitoring in order to detect any future incidence of lung cancer.

Coffman became angry, shocked, and extremely fearful after receiving his diagnosis. Plaintiff had previously watched his brother-in-law die from asbestos-induced lung cancer. As a result, he lived in fear that a similar fate would befall him.

Coffman and his spouse, Elizabeth Coffman, commenced a product-liability action against defendant Keene and several other asbestos manufacturers who had supplied the naval shipyard with asbestos products. He claimed that defendant's failure to place warnings of the health hazards posed by asbestos on its insulation products was a proximate cause of his asbestosis. Thus, the defect Coffman alleged was the absence of a warning on the product.

At trial, defendant contended that the jury had to find specifically that the lack of a warning on the asbestos products was the proximate cause of plaintiff's injury. The trial court disagreed with defendant's argument. Instead, the court instructed the jury

that it should presume that if defendant had provided an adequate warning, it would have been followed. Thus, the jury was asked to determine only whether defendant's product itself was a substantial or significant factor in bringing about plaintiff's injury.

The jury awarded plaintiff $300,000 for pain and suffering stemming from his asbestosis. The jury found additionally that Coffman exhibited a reasonable fear of developing lung cancer brought on by his exposure to asbestos, for which he was also awarded $100,000 as a compensation. Furthermore, plaintiff was awarded $6,000 to defray the cost of continued medical surveillance to monitor any potential signs of lung cancer. The jury concluded that defendant had substantially contributed to plaintiff's injuries. It found that Keene was approximately 15% responsible for plaintiff's injuries. Defendant filed a motion for a new trial or in the alternative for a judgment notwithstanding the verdict. The trial court denied defendant's motions, and defendant appealed.

The Appellate Division in a reported decision, 257 N.J. Super. 279, 608 A.2d 416 (1992), affirmed the trial court's judgment, ruling that a plaintiff in a failure-to-warn case may rely on a "heeding presumption" in order to prove that the absence of a warning proximately caused his or her injury. The Court granted certification, 130 N.J. 596, 617 A.2d 1219 (1992), to review that ruling.

II

To establish a cause of action in strict liability for a defective product, a plaintiff must prove that the defect existed when the product left the defendant's control and that the defect caused injury to a reasonably foreseeable user. See Jurado v. Western Gear, 131 N.J. 375, 385, 619 A.2d 1312 (1993); O'Brien v. Muskin Corp., 94 N.J. 169, 186, 463 A.2d 298 (1983). In a failure-to-warn case, the alleged product defect is not a flaw in the structure or design of the product itself. Rather, the defect is the absence of a warning to unsuspecting users that the product can

potentially cause injury. Freund v. Cellofilm Properties, Inc., 87 N.J. 229, 242, 432 A.2d 925 (1981) (holding that "the duty to warn in the strict liability cause of action is based on the notion that absent a warning or adequate warning a product is defective, in that it is not reasonably fit, suitable or safe for intended purposes"). Nevertheless, the same elements to establish a cause of action apply when a plaintiff's claim concerning a defective product is based on a failure to warn. Id. at 241, 432 A.2d 925.

Causation is a fundamental requisite for establishing any product-liability action. The plaintiff must demonstrate so-called product-defect causation -- that the defect in the product was a proximate cause of the injury. Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 394, 451 A.2d 179 (1982); Vallillo v. Muskin Corp., 212 N.J. Super. 155, 159, 514 A.2d 528 (App.Div.1986). When the alleged defect is the failure to provide warnings, a plaintiff is required to prove that the absence of a warning was a proximate cause of his harm. See Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 485 A.2d 305 (1984). Further, in asbestos failure-to-warn cases, a plaintiff must normally prove another kind of causation. In addition to product-defect causation, the plaintiff must demonstrate that his or ...


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