Supplemental briefs received: April 24, 1995. On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Approved for Publication June 5, 1995.
Before Judges Dreier, Villanueva and Wefing. The opinion of the court was delivered by Dreier, P.j.a.d.
The opinion of the court was delivered by: Dreier
Defendant Owens-Corning Fiberglas Corp. appeals from a compensatory damage award in favor of plaintiff of $380,344.50, including prejudgment interest, and from a punitive damage award of $5,500,000. Owens-Corning was one of ten asbestos manufacturer defendants in plaintiff's wrongful death and survival action based upon Owens-Corning's and the other defendants' alleged failure to provide proper warnings concerning their asbestos products. Specifically, Owens-Corning was charged with the manufacture and distribution of an allegedly unsafe asbestos product called Kaylo.
There is no question that decedent, Peter Ripa, developed severe asbestosis as a result of exposure to asbestos products and that he further had quadruple bypass surgery, the combination of which had totally disabled him from working at some point between 1988 and 1990. In late 1991, he developed chronic rib pain and had lung surgery performed in April 1992. He was diagnosed with mesothelioma, an asbestos-based cancer. *fn1 The mesothelioma provided the sole basis for plaintiff's claims against Owens-Corning. It was this disease that caused decedent to undergo radiation therapy and allegedly forced him to cease performing even simple tasks around the house. Although at the time of his death he was sixty-four years old, Ripa and his wife of forty years still had a minor daughter living at home who did not graduate from high school until 1993. Decedent died on September 26, 1992, and plaintiffs in this case are his estate and widow (collectively referred to as "plaintiff"). Decedent testified through a de bene esse deposition.
Ripa worked at New York Shipyard in Camden from 1950 until 1957 as a mechanic's helper and machinist. He worked on board ships for forty to fifty percent of his time while asbestos pipe covering was being cut. The workplace was filled with asbestos dust which also covered his clothes. Another shipyard worker with whom decedent worked estimated that forty to forty-five percent of the products he saw causing the asbestos dust to fly in their workspace were products of Owens-Corning. He also ascribed percentages to various other manufacturers. He noted that the Kaylo product prior to 1957 had an Owens-Illinois label and after that an Owens-Corning label. *fn2
Between 1953 and 1958 Owens-Corning only distributed the Owens-Illinois product but after 1958 manufactured the Kaylo itself. Some of the Kaylo product even carried the Owens-Corning logo between 1956 and 1958. Kaylo was principally used for insulation purposes, and decedent testified in his de bene esse deposition that he saw the products but never saw any warnings about use of asbestos. Had he seen them, he would have taken them seriously.
The history of the literature warning of the dangers of asbestos and Owens-Corning's knowledge thereof have relevance to the punitive damage claim. The hazards were first mentioned in scholarly literature in 1917 with many articles following. The first case of mesothelioma was reported in 1947, and by the mid-1950's a study of British textile workers associated asbestosis with a risk of lung cancer. When Owens-Illinois developed Kaylo, it asked that Saranac Laboratories conduct a study of the health effect of inhaling Kaylo both from the standpoint of the employees where the product was made and employees using the product. The first part of the study covering manufacturers' employees was completed, but apparently there were no user tests conducted. Although the initial results of the studies showed no effect on laboratory animals with up to two years' exposure, a November 16, 1948 letter from Saranac Laboratories to Owens-Illinois noted a change in the findings in that after thirty months' exposure to Kaylo dust, there was "unmistakable evidence of asbestosis . . . showing that Kaylo on inhalation is capable of producing asbestosis and must be regarded as a potentially-hazardous material."
At first Owens-Illinois was concerned, but it then discounted the initial Saranac results due to the high and continuous degree of exposure the laboratory animals had received. William Hazard, Owens-Illinois' industrial hygienist, however, acknowledged that asbestos-related diseases did not develop quickly and that the Saranac study could be comparable to real-life experience. He testified that it was generally believed in the 1940's that asbestos might present a significant health risk but that the danger was not definitively known. When Owens-Corning took over the manufacture of Kaylo in 1958, the Saranac file that had been kept by Hazard was sent to Owens-Corning. Hazard, however, did not know if all the Saranac documents and correspondence put into evidence in this trial were actually in the file. In any event, this transfer of material was after Ripa's employment at the shipyard had ceased.
Owens-Corning's products during the 1940's were primarily fiberglass, and, therefore, it had campaigned to impress its asbestos workers with the health benefits of using fiberglass instead of asbestos. At that time, it was in the company's interest to have the workers use fiberglass, but the workers had asked for a premium for working with fiberglass because of an "itch factor." After the company's campaign concerning asbestos' danger, the union dropped the request for premiums to work with fiberglass, apparently also as a result of a study of asbestos conducted by their own doctor. At that point, the Owens-Corning campaign stopped. The president of Owens-Corning, however, received a copy of the literature that would have been sent to the union and which described the hazards of asbestos.
During plaintiff's case in the punitive damages phase of the trial, only two former employees of Owens-Corning testified, both through depositions. The public relations director and assistant to the president of the company from 1940 until 1953, Edward Ames, explained that forty-nine percent of Owens-Corning was owned by Owens-Illinois and that Owens-Illinois' and Owens-Corning's headquarters were physically close, only three blocks apart. He looked to Hazard at Owens-Illinois for advice on the health program since there was no comparable hygienist at Owens-Corning, and he received the scholarly literature on the dangers of asbestos from Hazard. While he knew that asbestos was hazardous, he did not remember knowing that Kaylo contained asbestos.
Owens-Corning, however, relied upon the Threshold Limit Values (TLV's) for airborne particles as established by the American Conference of Governmental Industrial Hygienists. In the post-World War II years, it was thought that there was a weighted average for a concentration of asbestos dust to which a worker could be exposed with impunity over a lifetime. Until 1968, the TLV for asbestos was five million particles per cubic centimeter, and the Kaylo manufacturing facilities showed dust levels below this amount.
Neither Owens-Illinois nor Owens-Corning, however, ever conducted a study of an end-user's facility prior to decedent's last exposure to Kaylo. In 1968, the methodology switched from measuring dust content to counting asbestos fibers, and the industry set a five fiber level in 1968, which was reduced to two fibers in 1972. Some other studies by a physician and a hygienist concluded that insulating was a safe occupation. These studies and the TLV levels in the Kaylo plants convinced Owens-Illinois that it was unnecessary to test the end-user facilities.
The second set of depositions concerning those years was from John Thomas, the president and chief operating officer of Owens-Corning from 1965 to 1970, who had worked in various executive positions from 1939 to 1949 and then was with a textile fiber division until 1959. He knew nothing of the Saranac study and merely testified that Owens-Illinois and Owens-Corning worked together on Kaylo during the 1950's. He had no specific knowledge of Kaylo.
The jury returned a verdict pursuant to detailed interrogatories, which we quote in relevant part:
Which, if any, of the following companies were a substantial contributory cause to Mr. Ripa's asbestos-related injury?
Also indicate the percentage of liability attributable to each company whose product was a substantial contributing cause, taking the total percentage to be 100%, if able to do so based on the evidence.
Keene Corporation x Yes 10% (unanimous)
Hill, Baldwin, Ehret Hill)
Owens-Illinois, Inc. x Yes 45% (unanimous)
Owens-Corning Fiberglass x Yes 45% (unanimous)
Corporation (Kaylo Disbributor)
GAF Corporation (Ruberoid) x No
1. Did Peter Ripa have an asbestos-related injury?
(not including mesothelioma)? x Yes
(If yes, go on to Number 2: If no go on to number 4)
2. What amount of money, if any, fairly and adequately
compensates the estate of Peter Ripa for damages caused
by his asbestos-related injury?
(not including mesothelioma). $135,000
3. What amount of money, if any, fairly and
adequately compensates Pauline Ripa for her
loss of consortium resulting from her
husband's asbestos-related injury?
(not including mesothelioma). $150,000
4. What amount of money fairly and ...