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Thalman v. Owens-Corning Fiberglas Corp.

May 30, 1996

MARY THALMAN, INDIVIDUALLY AND AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF FRANK THALMAN, PLAINTIFF-RESPONDENT/CROSS-APPELLANT,
v.
OWENS-CORNING FIBERGLAS CORPORATION, ET AL., DEFENDANT-APPELLANT/CROSS-RESPONDENT.



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

Approved for Publication May 30, 1996.

Before Judges Keefe, Wefing and A.a. Rodriguez. The opinion of the court was delivered by Rodriguez, A.a., J.A.D.

The opinion of the court was delivered by: Rodriguez

The opinion of the court was delivered by RODRIGUEZ, A.A., J.A.D.

Plaintiff brought this action to recover damages for the illness and death of her husband Frank Thalman, resulting from a malignant mesothelioma, a rare and fatal cancer of the lining of the lungs caused by exposure to asbestos. Plaintiff sued thirty-one manufacturers of asbestos-containing products, but proceeded to trial only against Owens-Corning Fiberglas (Owens). Prior to trial, Owens and plaintiff agreed that Owens would be responsible for 19% of the damages. The jury found the following damages: $1,500,000.00 for pain and suffering, $168,000.00 for loss of consortium, and $300,000.00 for wrongful death. The Judge remitted the gross amount for loss of consortium to $50,000.00 and for wrongful death to $150,000.00, pursuant to R. 4:49-1(a). Owens appeals from the judgment, and plaintiff cross-appeals from the order granting remittitur. We reverse the remittitur and affirm all aspects of the jury award.

Frank Thalman worked as a pipefitter from 1942 to 1984. During that period he was exposed to asbestos-containing products. He suffered from a number of non-asbestos related health problems. In 1983, he was diagnosed with heart disease, had a heart attack, and underwent triple bypass heart surgery. He recovered from his cardiac surgery sufficiently to return to work and his usual activities. In March 1987, Thalman suffered from emphysema. In May 1987, Thalman was hospitalized for decortication surgery of a "trapped" lung. This procedure is designed to alleviate restrictions of the lung by surgically removing a thickened covering on the lung. Plaintiff's expert and treating pulmonologist Alan R. Pope, M.D., testified that the decortication revealed the onset of what was eventually diagnosed as a mesothelioma. At the time of the decortication surgery, the pathology was inconclusive. Dr. Pope testified that,

Clinically, he had behaved as if it were a mesothelioma, a cancer involving the lung and ultimately when we look at what the pathology was of the cancer when it involved the abdomen, it was a fibrous type of mesothelioma. Scar type is maybe a layman's way of thinking of it. So in retrospect, I think it is very likely that actually the thickening was, in fact, mesothelioma at that time.

Q. And, so I'm clear, is it your opinion to a reasonable degree of medical probability that the thickening which caused the trapped lung was, in fact, the beginning of the mesothelioma?

A. Yes, it is. That's correct.

In June 1987, Thalman was readmitted to the hospital to treat an infection that developed as a result of the decortication. He returned home at the end of July 1987. He gradually deteriorated to a point where he had to rely on his wife and family to wash, shave and dress him. On April 13, 1988, Thalman was admitted to the hospital for the last time. Four days later he was definitely diagnosed with mesothelioma. Four days after that he died. He was sixty-eight years old.

On appeal, Owens contends that: (1) the pain and suffering award is excessive because Thalman's terminal condition was never communicated to him; (2) Thalman's real pain and suffering was caused by his long-standing non-asbestos related condition; (3) the excessiveness of the pain and suffering award is demonstrated by its comparison to other awards; (4) the jury's wrongful death award is so excessive in relation to the evidence that a new trial is required, and (5) the loss of consortium award is excessive. On cross-appeal, plaintiff contends that the remittitur of the loss of consortium award was based on speculation and was an improper substitution of the court's judgment for that of the jury, and the remittitur of the wrongful death award was improper.

In challenging the pain and suffering award, Owens argues that Thalman's terminal condition was never communicated to him. The record does not reflect that Thalman was ever advised of the mesothelioma diagnosis. On the other hand, the record amply supports the Conclusion that Thalman was aware that death was near. More importantly, it is uncontroverted that the decortication surgery, which required that the ribs be "split open, pulled apart" in order to access the lungs, caused excruciating pain. This pain continued for months after the surgery. In addition, Thalman experienced nausea, weight loss and depression. Plaintiff testified that towards the end, "he said he was in such pain, if he had a gun, he'd take it to his head." In light of these proofs we find Owens' argument wholly unpersuasive.

The next challenge to the pain and suffering award is that Thalman's suffering was caused by other non-asbestos related conditions. Although there was substantial evidence that Thalman suffered from heart disease, emphysema and arteriosclerosis, the jury could readily find that it was the mesothelioma which caused the episodes of excruciating pain, depression, deterioration of physical faculties, dependence on others, and loss of the enjoyment of life. A $1,500,000 jury award for that pain and suffering cannot be regarded as a miscarriage of Justice. See Baxter v. Fairmont Food Co., 74 N.J. 588, 596, 379 A.2d 225 (1977). The trial Judge correctly refused to disturb that aspect of the jury award.

Owens' argument based on comparison to other awards for the same injury does not persuade. In actions to recover damages for personal injuries, there are "no fixed standards by which to gauge damages[.]" Cabakov v. Thatcher,37 N.J. Super. 249, 257, 117 A.2d 298 (App. Div. 1955). Because "no case of personal injuries is ever an exact and binding precedent for another upon the question of excessiveness of a verdict even where there is a close parallelism of facts and circumstances bearing upon the amount of damages," it is the rare case that "lends itself to a comparison with others in ...


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