On appeal from Superior Court of New Jersey, Law Division, Camden County.
Approved for Publication July 13, 1995
Before Judges Villanueva, Wefing and Braithwaite. The opinion of the court was delivered by VILLANUEVA, J.A.D.
The opinion of the court was delivered by: VILLANUEVA
Plaintiff appeals from the judgment which resulted from a molded verdict of $81,000 solely against defendant Owens-Corning Fiberglas Corporation (defendant or Owens-Corning Fiberglas), in which a non party, National Gypsum Company (National Gypsum) was placed on the jury verdict sheet and attributed the largest percentage of liability for plaintiff's asbestosis. Owens-Corning Fiberglas cross appeals from the $25,000 award to plaintiff for future medical monitoring. We reverse and remand for a new trial, rendering the cross appeal moot.
On December 1, 1988, plaintiff filed suit against numerous defendants including Owens-Corning Fiberglas, but not National Gypsum, seeking damages for occupational exposure to asbestos. *fn1
During plaintiff's worklife of more than forty-five years, he was employed by many companies. After graduating from high school, he worked as a dye setter for approximately five years. His only exposure to asbestos in that position was one week per year during "shutdown periods" when he worked in a boiler room where there was "insulation all over the place."
Plaintiff next worked from 1942 until 1945 for New York Shipyard which included working as a layout machinist for eight months in what he described as a "pretty new building . . .[with] all new installation." Plaintiff later worked for Penn Jersey Shipyard where he was an outside machinist, which involved the installation of machinery. He testified that he was exposed to asbestos while working in the ships' engine rooms, which contained asbestos-ridden insulation.
After World War II, plaintiff worked for RCA as a millwright machinist for thirty-six years. His job involved installation of machinery, installation and removal of air conditioners, boilers, and pumps, and he also operated motor generator sets, fork trucks, backhoes and front-end loaders. Plaintiff testified that, although he did not work directly with asbestos-containing products, he was exposed to asbestos because workers all around him were installing pipes which were wrapped with asbestos-containing pipe coverage, workers would mix the asbestos cement within one or two feet of plaintiff, he frequently breathed asbestos-containing dust and he also worked in areas where workers were removing asbestos products.
Plaintiff's asbestosis became manifest in 1987 when he began experiencing back pain, so he visited his family doctor who referred him to Dr. Donald Auerbach. At the time of trial, plaintiff testified that, physically, he was "not like [he] used to be" in that there were many things he used to do that he could no longer do because of his shortness of breath.
Dr. Auerbach, an expert in internal medicine, pulmonary medicine and asbestos-related diseases, first examined plaintiff in July 1988 and had seen him six or seven times before testifying at trial on May 6, 1993. Plaintiff was diagnosed as having pulmonary asbestosis and asbestos-related pleural disease, which have long latency periods. Asbestosis can lead to a form of cancer known as mesothelioma and to lung cancer.
Dr. Auerbach testified that plaintiff's condition will progress in the future. However, Dr. Auerbach was not permitted to testify about the nature of the progression that, within reasonable medical probability, would probably occur. In addition, the trial Judge instructed the jury that they could not consider in making a damages award the future progression, if any, of plaintiff's existing disease.
Dr. Auerbach recommended future medical monitoring, i.e., physical examinations and tests for breathing and oxygen levels, for plaintiff at least once or twice a year. The doctor estimated that this would cost "roughly" between $800 to $900 a year. The Judge took judicial notice of plaintiff's life expectancy, which was 9.44 years for the 77-year old plaintiff at the time of trial.
Prior to trial, plaintiff settled with five defendants: Owens-Illinois, Pittsburgh Corning, Flexitallic Gasket, Armstrong World Industries and GAF. Five other companies filed for bankruptcy. At the time of trial, three defendants remained in this case: Owens-Corning Fiberglas, Keene and Garlock.
After all the evidence had been presented to the jury, Owens-Corning Fiberglas's attorney moved for permission to amend its pleadings or answers to allow it to assert a cross claim against National Gypsum and to have National Gypsum placed on the jury verdict sheet. The attorney argued that proof had been presented that plaintiff had been exposed to asbestos-containing products of National Gypsum's and that Owens-Corning Fiberglas would be able to seek contribution against National Gypsum anyway, and because National Gypsum had allegedly settled with plaintiff, it should be included on the jury verdict sheet so that the jury could determine whether it was a substantial contributing factor in causing plaintiff's disease.
The circumstances under which National Gypsum allegedly "settled" are that three of the defendants (Flexitallic, Armstrong and GAF) who did settle with plaintiff are members of an association called the Center for Claims Resolution (CCR), comprised of 20 companies, including National Gypsum, which manufacture or manufactured asbestos-containing products. A condition of settlement with any CCR member is that the plaintiff sign a release releasing claims against all CCR members regardless of whether the individual members are parties to the ...