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Schiavo v. Owens-Corning Fiberglas Corp.

June 5, 1995

ROBERT SCHIAVO, EXECUTOR OF THE ESTATE OF ALBERT SCHIAVO, DECEASED, AND ROBERT SCHIAVO, IN HIS OWN RIGHT AND DONA SCHIAVO, IN HER OWN RIGHT, PLAINTIFFS-RESPONDENTS,
v.
OWENS-CORNING FIBERGLAS CORPORATION, DEFENDANT-APPELLANT, AND GAF CORPORATION; H.K. PORTER COMPANY; SOUTHERN TEXTILE CORPORATION; EAGLE-PICHER INDUSTRIES, INC.; KEENE CORPORATION; GARLOCK, INC.; PITTSBURGH-CORNING CORPORATION; JOHN DOE CORPORATION, ONE THROUGH TEN, DEFENDANTS.



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

Approved for Publication June 5, 1995.

Before Judges Dreier, Villanueva and Bilder. The opinion of the court was delivered by Dreier, P.j.a.d.

The opinion of the court was delivered by: Dreier

DREIER, P.J.A.D.

Defendant appeals compensatory damage and punitive damage awards entered in this mesothelioma death case. This matter is a companion case to Ripa v. Owens-Corning Fiberglas Corp., N.J. Super. (App. Div. 1995).

Plaintiffs' decedent, Albert Schiavo, was born June 21, 1927. Decedent had been disabled in 1975 as a result of a car accident in which his back was injured. The last operation necessitated by the accident caused severe nerve damage leaving decedent incontinent both as to bowel and bladder. He had stopped working ten years before he was diagnosed with mesothelioma. He married his wife in 1986, after his complete disability but before the mesothelioma diagnosis. His physical activities were limited, yet he and his wife took walks together and engaged in some slight recreational activities, but they mainly stayed home together, visiting with friends and family. Decedent was diagnosed with mesothelioma in June 1988 after first experiencing chest pains in December 1987. By December 1989, eight months before his death, his health had declined rapidly. He died August 21, 1990.

Decedent's principal exposure to asbestos was during a two-year period commencing in 1957 or 1958 when he worked as a cleaner in the New York Shipyard in Camden aboard the U.S.S. Kitty Hawk, *fn1 which was undergoing a full restoration at the shipyard. Decedent's duties included sweeping up the dust from the asbestos insulation products as it settled. In his 1988 de bene esse deposition, decedent identified various brands of asbestos as being used on the job. Specifically, he identified Owens-Corning's product, Kaylo, HK-4 and products of Johns-Manville Corporation and Garlock, Inc.

Another worker on the Kitty Hawk, William Kimley, Sr., noted that he had seen defendant's products five days a week during the relevant periods where he had worked on board the ship. He estimated that forty to forty-five percent of the pipe covering used on the Kitty Hawk was provided by defendant. A witness for defendant, Toby Caprarola, testified that he had been on board the Kitty Hawk for approximately one and one-half years between 1956 and 1961. He identified numerous manufacturers but stated that from what he had observed these manufacturers provided their products in equal amounts on board the ship. On cross-examination, however, Caprarola stated that he had said that the products were in equal amount because he could not remember the percentages supplied by the particular defendants.

One by one, the several defendants originally served by plaintiffs were dismissed from this suit. By the time the compensatory phase of the trial began in 1993, only Owens-Corning, Keene Corporation and Garlock, Inc. remained in the case. Garlock was dismissed at the end of the plaintiffs' proofs, and Keene was dismissed following the close of all proofs. Ruberoid Company (now GAF) had earlier settled and thus was no longer in the case. The Judge, therefore, required the jury to allocate percentage verdicts between Owens-Corning and the settling defendant, Ruberoid. Rogers v. Spady, 147 N.J. Super. 274, 371 A.2d 285 (App. Div. 1977).

The jury determined that between these defendants, Owens-Corning was ninety-seven percent responsible and Ruberoid three percent responsible. The jury also determined that the occupational exposure to Owens-Corning's products was a substantial contributing cause of decedent's mesothelioma and death. The jury awarded decedent's estate $250,000 for pain and suffering and emotional and mental anguish from the onset of his illness until his death. Decedent's widow, Dona Schiavo, was awarded an additional $100,000 for her per quod claim for loss of consortium, society, advice and counsel prior to his death. The jury also awarded Mrs. Schiavo damages in the wrongful death action. The jury determined that $150,000 would reasonably compensate her for her pecuniary losses, including those permitted by Green v. Bittner, 85 N.J. 1, 12-14, 424 A.2d 210 (1980). In a separate punitive damage deliberation which followed the compensatory award, the jury awarded plaintiffs an additional $100,000.

Defendant has appealed from both the compensatory and punitive damage awards. It raises eight points with several subpoints.

A.

Defendant first contends that the jury was tainted when three jurors heard of another punitive damage award against Owens-Corning in an unrelated mesothelioma death case. The award was returned in an adjoining courtroom while this trial was in progress.

The Judge refused to declare a mistrial and instead inquired of the jury if anyone had heard or read anything about the other asbestos case. The three jurors who raised their hands were individually questioned out of the presence of the other jurors. The three said they had not discussed the matter with other jurors and all declared that the publicity would have no effect on their own deliberations. Two of the three were not ...


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