On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Approved for Publication July 21, 1995.
Before Judges Dreier, Villanueva and Wefing.
The opinion of the court was delivered by: Dreier
The opinion of the court was delivered by
Defendant Owens-Corning Fiberglas Corporation appeals from a Law Division judgment entered in favor of plaintiff, Barbara Jadlowski, in her individual capacity and as executrix of the estate of her late husband, Donald P. Jadlowski. Although the notice of appeal stated that it was taken from the entire judgment, defendant Owens-Corning directs its arguments solely to issues affecting the punitive damages judgment originally returned by the jury in the amount of $15,000,000 but remitted to $2,500,000 by the trial Judge on defendant's motion. Plaintiff cross-appeals from the remittitur. We are constrained to reverse the award and remand for a new trial on punitive damages.
The parties in this case raise many of the same issues as were addressed by this court in Ripa v. Owens-Corning Fiberglas Corporation, N.J. Super. (App. Div. 1995) and Schiavo v. Owens-Corning Fiberglas Corporation, N.J. Super. (App. Div. 1995). The principal difference between this case and the Ripa and Schiavo cases is that the time frame of this case is later than that treated in the other opinions, thus implicating Owens-Corning's knowledge and actions in the 1960's and 1970's and related issues.
Plaintiff and her late husband, then fifty-four years old, brought this action against a dozen manufacturers of or users of asbestos or asbestos-containing products. Decedent was exposed to asbestos for eleven years from the late 1950's through the early 1970's in various employments in Greenland, Cuba, the Brooklyn Navy Yard and, finally, with Jersey Central Power & Light Company.
He described numerous manufacturers of the asbestos products with which he worked and specifically identified Kaylo, manufactured by Owens-Corning, as a product to which he had been exposed. Unlike the situation in Ripa or Schiavo, defendant was not singled out as a principal supplier of the asbestos to which decedent was exposed.
In 1990, decedent was diagnosed as suffering from pleural effusions. Three months later he was diagnosed as having mesothelioma from which he died on April 17, 1992, leaving plaintiff as his widow after thirty-two years of marriage. The jury heard and saw his testimony through a de bene esse videotaped deposition. It determined that decedent suffered and died from asbestos-related mesothelioma and that Owens-Corning's product was a substantial contributing factor in causing this mesothelioma. Owens-Corning, however, had discharged its duty to prove that decedent had been exposed to the products of many other defendants, and thus Owens-Corning was found to be only eleven percent responsible. *fn1
The total compensatory damages were less than $800,000. The jury awarded $200,000 for decedent's lifetime pain and suffering and $30,000 to plaintiff for her per guod claim. In addition, the jury awarded $43,400 for lost wages; $382,000 for wrongful death damages; $144,407.43 for medical bills, and $4,995 for funeral expenses. After the Judge molded the verdict to reflect Owens-Corning's eleven percent responsibility, the total compensatory damage award against Owens-Corning was $72,956.95, plus $5,797.38 prejudgment interest.
The verdict was returned just before Christmas 1992, and the trial Judge and parties agreed that the jury could be discharged with a new jury to be selected for the punitive damages phase of the case. Given the agreement of the parties and the fact that neither is in a position to challenge the ruling, we will not comment extensively upon the departure from the usual practice of retaining the same jury to hear both the compensatory and punitive damages aspects of any litigation. Since the trial of this case, the Supreme Court in Herman v. Sunshine Chem. Specialties, Inc., 133 N.J. 329, 346, 627 A.2d 1081 (1993) determined that the procedure set forth in the Product Liability Act, N.J.S.A. 2A:58C-5, should be followed in all punitive damages cases. This procedure calls for a single jury to hear both the compensatory and punitive damages phases of a case.
The punitive damages phase of the trial commenced March 31, 1993, and after sixteen days of trial, the jury returned its $15,000,000 verdict. After an unsuccessful motion to disqualify the trial Judge and other motions relating to protective orders concerning certain memoranda admitted in evidence, the Judge heard defendant's motion for a new trial or remittitur. The Judge granted the motion and entered a remittitur to $2,500,000. Plaintiff's acceptance of the remittitur did not prevent her cross appeal from the remittitur order once defendant determined to appeal from the denial of its new trial motion. Baxter v. Fairmont Food Co., 74 N.J. 588, 595-596, 379 A.2d 225 (1977).
Unlike the focus in the Ripa and Schiavo cases, the punitive damages phase of this trial concentrated upon Owens-Corning's actions to remove asbestos from Kaylo, its knowledge of the potential danger posed by Kaylo, and the manner in which it eventually labeled containers of Kaylo. There were references to the pre-1960 era, central to Ripa and Schiavo, before decedent's exposure to Kaylo, but these references were mainly to provide background to plaintiff's proof of Owens-Corning's alleged efforts to minimize the public awareness of Kaylo's harmful effects or, as defendant alleges, its efforts to warn the consuming public of Kaylo's dangers.
While the Saranac studies, so central to our reversal in Ripa, were again admitted, albeit with a slightly improved foundation in this case, the effect of these studies was negligible given the later information acknowledged to be available to Owens-Corning. This admission without a solid foundation was clearly harmless error, if error at all.
It was generally conceded that by the 1940's asbestos was known to be connected with health problems, notably asbestosis. The preliminary Saranac report did not implicate Kaylo as a carcinogen, but the dangers were apparently recognized by Owens-Illinois, the previous manufacturer of Kaylo and for whom Owens-Corning acted as distributor. Before Owens-Corning assumed the manufacture of Kaylo in 1958, it commenced a Union campaign to extol the benefits of fiberglass and to impress asbestos workers with the benefits of fiberglass over asbestos which involved the danger of asbestosis. Although for its own workers Owens-Corning required the wearing of respirators, required annual chest x-rays, and acknowledged a latency period of up to twenty years for the manifestation of asbestosis, its sales literature touted Kaylo as "non-toxic." In a February 1956 letter to Owens-Corning's Director of Personnel and Industrial Relations, the director of the Saranac study obliquely mentioned "that asbestos is fairly well incriminated as a carcinogen." Owens-Corning's own expert in asbestos disease disputed this link but acknowledged a 1955 study of English workers who had died of asbestos is and had shown an increase in the incidence of lung cancer.
By the early 1960's, however, the published material concerning the link between asbestos and cancer had continued to expand. In 1965, Dr. Irving Selikoff published his first study that insulators working with asbestos were at risk of developing asbestosis, lung cancer and mesothelioma. Owens-Corning's response was to find "some way of preventing Dr. Selikoff from creating problems and affecting sales." Kaylo was a profit leader among defendant's products. As a matter of fact, a nonasbestos insulating product, Multi-Temp, was developed during this period, but Owens-Corning determined to drop the line because it lacked good profit margins and customer acceptance.
In 1966, Owens-Corning first stamped Kaylo boxes with a notice:
THIS PRODUCT CONTAINS ASBESTOS FIBER.
If dust is created when this product is handled, avoid breathing the dust.
If adequate ventilation control is not possible, wear respirator approved by the U.S. Bureau of Mines.
By February 1967, the notice was printed on the cartons, and in 1970 the label was changed to read:
CONTAINS ASBESTOS FIBER. INHALATION OF DUST IN EXCESSIVE QUANTITIES OVER LONG PERIODS OF TIME MAY BE HARMFUL. AVOID BREATHING DUST. IF ADEQUATE VENTILATION IS NOT POSSIBLE, WEAR RESPIRATORS APPROVED BY THE U.S. BUREAU OF MINES FOR PNEUMOCONIOSIS PRODUCING DUST.
However, Owens-Corning's promotional literature from this period does not address health concerns.
Commencing in 1968, Owens-Corning started an internal project to remove asbestos from Kaylo. This was not accomplished, however, until 1972 when the product was renamed "10AF." Even after Owens-Corning labeled its product as "asbestos free," the testing of the product as late as 1984 still revealed a "low concentration of amosite asbestos in the Kaylo material."
Plaintiff expanded upon Owens-Corning's knowledge of the harmful propensities of its product. Plaintiff attempted to show through internal Owens-Corning documents that it had knowledge of health problems among its own workers. It introduced various memoranda, two of which were actively challenged in the trial court and again on appeal, as they have been in courts throughout the country. One objection was addressed to the Briley memoranda and to another memorandum from C.D. Callender, an in-house Owens-Corning attorney, all of which ...