On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Before Judges Michels, Stern and Keefe. The opinion of the court was delivered by Michels, P.J.A.D.
The opinion of the court was delivered by MICHELS, P.J.A.D.
Defendant Porter Hayden Company (Porter Hayden) appeals from a judgment of the Law Division entered on a molded jury verdict that awarded plaintiffs Edward Goss (Goss) and Theresa Patullo individually and as executrix of the Estate of Nicholas Patullo, deceased, damages in these consolidated personal injury, wrongful death and survivorship tort actions.
Goss and Nicholas Patullo (Patullo) claimed that they were exposed to asbestos-containing industrial products manufactured by Johns-Manville and distributed and installed by Porter Hayden, during their employment by American Cyanamid Co. (American Cyanamid), and that they developed asbestos-related diseases as a result of such exposure. The proofs showed that Johns-Manville marketed its asbestos-containing insulation products through distributors. Some of the distributors, known as Insulation Contract Units ("ICUs"), warehoused and sold the asbestos-containing products and represented Johns-Manville in bidding on labor and materials. Porter Hayden, formerly known as H.W. Porter Company, was an ICU for Johns-Manville from 1927 until the 1960's. Porter Hayden distributed Johns-Manville products exclusively and was a major supplier of Johns-Manville products, including those containing asbestos, to American Cyanamid. One of Porter Hayden's managers, Theodore Mannell, conceded that some of the Johns-Manville products supplied to American Cyanamid by Porter Hayden contained asbestos and that he personally witnessed American Cyanamid employees cutting the asbestos-containing products from time to time. When the insulation was cut, the asbestos was released into the air as dust fragments.
Similarly, when the cement was poured into water, the asbestos dust was released into the air.
Porter Hayden was not the only distributor of Johns-Manville products. In the mid-1960's, Johns-Manville added the Wallace Company as an ICU for the New Jersey region. However, it is unclear from the record whether the Wallace Company distributed to American Cyanamid. Charles S. Woods Company, an insulation contractor and representative of Owens-Corning Fiberglass Company and a Porter Hayden competitor for insulation contract work, also bid on contract jobs at American Cyanamid between 1950 and 1965. During that time, Charles S. Woods Company sold between fifty and one hundred contracts to American Cyanamid. At times, the Charles S. Woods Company was required to use Johns-Manville materials at American Cyanamid, which it was required to purchase through Porter Hayden. Defendant Madsen & Howell, an industrial hardware supply company, also distributed packing and gasket material made from asbestos sheeting for Johns-Manville. Madsen & Howell distributed those Johns-Manville products to American Cyanamid from the late 1930's to the present.
Goss worked at American Cyanamid as a pump and departmental mechanic from 1945 until 1984. He repaired pumps, autoclaves and tanks, which at times required removing piping and installation of asbestos-containing insulation, asbestos block and asbestos cement. These materials produced asbestos dust when cut or prepared. Most of the asbestos-containing products that Goss used were supplied by Johns-Manville. Goss testified that he spent approximately thirty percent of his work time either applying or removing asbestos insulation. Additionally, he worked alongside other employees who were full-time insulators approximately thirty percent of the time, and spent between thirty and fifty percent of his time working with asbestos packing or asbestos gaskets. Goss also used asbestos sheeting manufactured by Johns-Manville once or twice per year. At various times, Goss also worked on the Babcock & Wilcox boilers which were covered
with insulation at American Cyanamid, and which involved repairing piping and changing the screens inside the boilers. After a day of working with asbestos products, Goss's clothes would be covered with white dust and at times he would have to use an air hose to blow the dust off.
During Goss' employment at American Cyanamid, the asbestos-containing products were not labeled with warnings, nor were any written instructions ever given to Goss advising him to take precautions when using asbestos products. American Cyanamid began to advise their employees to take precautions in the 1970's, and in 1971, Porter Hayden began placing health warnings on any asbestos-containing products it distributed.
The deposition of Patullo, who died from lung cancer prior to trial, was introduced into evidence at trial. Patullo was employed as a pipefitter's assistant at American Cyanamid for six months in 1948. Patullo returned to American Cyanamid in 1950 and remained employed there as a departmental mechanic until 1976 or 1978. During that time, Patullo installed and removed asbestos-containing pipe covering manufactured by Johns-Manville. When the pipe covering and other insulation materials were cut, a dust was produced which Patullo inhaled. Patullo also worked in the same areas as other pipe coverers while they were cutting and installing insulation, although his labor union contract prohibited him from installing pipe fitting if the job required more than fifteen feet of material.
During his employment at American Cyanamid, Patullo never noticed any health warnings on the packages of the asbestos-containing products. Written safety instructions were not issued to Patullo advising him to take precautions when using asbestos-containing products. Towards the end of Patullo's employment, American Cyanamid required that he wear a mask on the job.
Frank Brandt, who was also employed by American Cyanamid from 1936 until 1982 except for three years between 1942 and 1945 when he was in the military, worked throughout all areas of the plant installing insulation. Brandt testified that he used Johns-
Manville pipe covering approximately ninety percent of the time and that Porter Hayden delivered the asbestos materials to American Cyanamid. He also testified that after working with the asbestos insulation, his clothes, face and body would be covered with white dust, so that he "looked like a snowman." According to Brandt, there were no health warnings on the packages of the asbestos-containing products that he used. Between 1936 until the early 1970's, Brandt installed insulation in areas where Goss and Patullo regularly worked. Brandt worked with Patullo, using the asbestos materials approximately once every two or three months, and worked with Goss, using the asbestos materials, approximately once per month.
Goss, Patullo and Patullo's wife, Theresa Patullo, instituted these actions against Porter Hayden and other manufacturers and distributors of asbestos-containing products to recover damages for the personal injuries sustained as a result of this exposure to asbestos-containing industrial products. Patullo died sometime after the action was instituted. Mrs. Patullo, who was named executrix of his estate, amended the complaint to seek wrongful death and survivorship damages. The cases were consolidated for trial. Prior to trial, all defendants, with the exception of Porter Hayden and defendant Cleaver Brooks Co. (Cleaver Brooks), settled or were dismissed from the case. At the Conclusion of Goss's proofs, Goss dismissed his direct claim against Cleaver Brooks, but the latter remained in the case on Porter Hayden's cross-claim for contribution. At the Conclusion of all of the proofs, the trial court granted Cleaver Brooks' motion for a judgment of dismissal. Thereafter, the trial court denied Porter Hayden's motion for a directed verdict on the ground that plaintiffs failed to demonstrate that they were exposed to any asbestos-containing products distributed or installed by it on a frequent, regular and proximate basis, as required by Sholtis v. American Cyanamid Co., 238 N.J. Super. 8, 568 A.2d 1196 (App. Div. 1989).
The trial court also denied Porter Hayden's motion to dismiss the wrongful death action brought by Mrs. Patullo on the ground
that she did not suffer any economic losses as a result of Patullo's death. The trial court then denied Mrs. Patullo's motion to preclude the jury from apportioning responsibility for Patullo's injuries and subsequent death between his cigarette smoking and his occupational exposure to asbestos following Dafler v. Raymark Industries, Inc., 259 N.J. Super. 17, 611 A.2d 136 (App. Div. 1992), aff'd, 132 N.J. 96, 622 A.2d 1305 (1993). Finally, the trial court reserved decision on plaintiffs' motion to limit Madsen & Howell's liability for damages to the period after 1973, when it had a systems contract with American Cyanamid.*fn1
The jury returned verdicts in favor of plaintiffs. With respect to Goss, the jury assessed eighty-five percent liability against Porter Hayden and fifteen percent liability against Madsen & Howell, with no liability against Owens-Illinois. The jury awarded Goss $56,500 in damages for pain and suffering and $1.00 in damages for Goss's fear of cancer. With respect to Patullo, the jury assessed eighty-five percent liability against Porter Hayden, five percent liability against Garlock and ten percent liability against Madsen & Howell, with no liability against Owens-Illinois. The jury awarded Mrs. Patullo, as executrix, $300,000 damages for Patullo's pain and suffering, $436,000 for Patullo's wrongful death, and individually, $57,500 for her loss of consortium. The jury also found that both cigarette smoking and occupational exposure to asbestos were substantial contributing factors in causing Patullo's lung cancer, but the jury was unable to apportion liability between the two causes.
Following the jury verdicts, the trial court resubmitted the matter to the jury, directing it to redetermine Madsen & Howell's liability for damages only for the period after 1973. The jury
returned an amended verdict, reassessing liability at 100 percent against Porter Hayden and nothing against either Madsen & Howell or Owens-Illinois with respect to Goss, and ninety-five percent against Porter Hayden, five percent liability against Garlock, and nothing against Madsen & Howell or Owens-Illinois with respect to Patullo. The trial court denied Porter Hayden's motions for a new trial or, alternatively, for judgment notwithstanding the verdict or a remittitur. The trial court molded the jury verdict and entered judgment awarding Goss $56,500, Mrs. Patullo, as executrix of the Estate of Nicholas Patullo, $699,200 and Mrs. Patullo individually, $54,625. Porter Hayden appealed.
Porter Hayden seeks a reversal of the judgment, contending among other things, that the trial court erred in failing to grant its motion for a directed verdict because plaintiffs failed to demonstrate exposure to asbestos-containing products supplied or installed by it. Porter Hayden also contends that the evidence was insufficient as a matter of law to establish that plaintiffs were exposed with the frequency, regularity and proximity demanded by Sholtis, and, therefore, it was entitled to a directed verdict or a judgment notwithstanding the verdict. We disagree. Under the rather accommodating standard of review set forth in Dolson v. Anastasia, 55 N.J. 2, 5-6, 258 A.2d 706 (1969), it is perfectly clear on this record that the trial court properly denied defendant's motions for a directed verdict and for a judgment notwithstanding the jury's verdict.
In any product-liability action, a plaintiff must demonstrate "so-called product-defect causation -- that the defect in the product was a proximate cause of the injury." Coffman v. Keene Corp., 133 N.J. 581, 594, 628 A.2d 710 (1993). "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." Ibid. In an asbestos case based on a defendant's failure to warn, in addition to product-defect causation, the plaintiff must also
demonstrate "that his or her injuries were proximately caused by exposure to defendant's asbestos product. That is known as 'medical causation.'" Ibid. (citing Sholtis, supra, ...