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Kurak v. A.P. Green Refactories Co.

March 3, 1997

CHARLES KURAK AND PRISCILLA KURAK, HIS WIFE, PLAINTIFFS-RESPONDENTS,
v.
A.P. GREEN REFACTORIES COMPANY, ARMSTRONG WORLD INDUSTRIES,INC., THE ANCHOR PACKING COMPANY, BABCOCK & WILCOX COMPANY, CALON INSULATION CORPORATION, COMBUSTION ENGINEERING, COOPER INDUSTRIES, INC., EASTERN STEAM SPECIALTIES, F.M. ROJEK, INC., FLEXITALLIC, INC., FOSTER WHEELER CORPORATION, FRICK COMPANY, GAF CORPORATION, GARLOCK, INC., INGERSOLL RAND CO., KAISER ALUMINUM & CHEMICAL CORP., KEENE CORPORATION, MADSEN & HOWELL, INC., NORRIS INSULATION, INC., PITTSBURGH CORNING CORPORATION, PORTER HAYDEN COMPANY, ROBERT A. KEASBEY COMPANY, ROCKWOOL MANUFACTURING CO., ROOTS CONNERSVILLE, STATE INSULATION CORPORATION, TURNER & NEWALL, P.L.C., U.S. GYPSUM CO., WORTHINGTON CORPORATION, AND YORK INDUSTRIES, INC., DEFENDANTS, AND OWENS-CORNING FIBERGLAS CORPORATION AND OWENS-ILLINOIS, INC., DEFENDANTS-APPELLANTS.



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

Approved for Publication March 5, 1997.

Before Judges Michels, Kleiner, and Coburn. The opinion of the court was delivered by Coburn, J.

The opinion of the court was delivered by: Coburn

The opinion of the court was delivered by

COBURN, J.S.C. (temporarily assigned).

In separate appeals, which we have consolidated, defendants Owens-Corning Fiberglas Corporation (OCF) and Owens-Illinois, Inc. (OI) seek reversal of Law Division judgments, following a trial by jury, awarding plaintiffs Charles Kurak (plaintiff) and his wife, Priscilla Kurak, damages in this personal injury, products liability action.

The jury determined that plaintiff had contracted mesothelioma, a cancer of the lining of the lung which can only be caused by asbestos, as a result of exposure over forty-four years to asbestos-containing products in his workplace at E.R. Squibb and Sons, Inc. (Squibb). The jury assessed responsibility against defendants (including other named defendants who did not participate in the trial) in the following proportions: OCF (25%); OI (20%); Calon Insulation Corporation (15%); GAF Corporation (15%); Porter Hayden Company (10%); Robert A. Keasbey Company (7%); State Insulation Corporation (8%); and 0% as to Anchor Packing Company, Combustion Engineering, Garlock, Inc., Ingersoll Rand Co., Madsen & Howell, Inc., and U.S. Gypsum Co.

The jury determined plaintiff's total damages to be $1,500,000 and his wife's to be $800,000. The trial court molded the verdict to reflect judgments, with interest as of December 16, 1994, as follows: for plaintiff against OCF, $413,758.54, and against OI, $331,066.83; for plaintiff's wife on her derivative claims against OCF, $220,671.21, and against OI, $176,536.97.

The primary contention of both defendants is that the trial court erred in failing to grant their motions for directed verdicts and judgments notwithstanding the verdicts. Alternatively, they contend the court should have granted their motions for a new trial. Their appeals primarily focus upon claims of lack of product identification respecting the issue of proximate cause. In other words, each defendant contends that plaintiff failed to prove sufficient exposure to its asbestos-containing product to warrant a finding that its product was a medical cause of plaintiff's mesothelioma. They also contend the trial court committed errors relating solely to the issue of damages which resulted in inflated and excessive monetary awards. We agree that there was insufficient evidence against defendant Owens-Illinois, Inc., and that it was entitled to judgment. The jury's finding of liability as to Owens-Corning Fiberglas Corporation, on the other hand, was supported by the evidence. However, the trial court committed reversible error on an issue relating to damages. Consequently, for the reasons stated in section IV, (infra), plaintiffs will have to decide whether to have a new trial on damages with OCF's percentage of fault set at the twenty-five percent adjudicated in this trial, or a new trial on liability and damages.

I

Plaintiff began working for Squibb in 1944 when he was eighteen years old. After forty-four years as a laboratory technician at the Squibb plant in New Brunswick, New Jersey, he retired in 1988 at age sixty-two. Four years later, his physician told him he had contracted mesothelioma, an invariably fatal disease. The parties stipulated that the average life expectancy for a person who has been diagnosed with mesothelioma is six months to two years, although some people have lived as long as eight years.

When plaintiff began working for Squibb at its ninety-six acre New Brunswick site, the plant consisted of about thirty buildings. At his retirement, there were around thirty to forty buildings. During the forty-four years, some buildings were razed to be replaced by new installations.

Plaintiff's work primarily took place in various buildings over the years in laboratory rooms which were about forty feet long and fifteen to twenty feet wide. He first worked in building 80-84 for about eleven years from 1944 until about 1955. Then he spent about seven years in building 70. Around 1962 he moved to building 54; and around 1966 he moved to a new building, number 102, where he stayed until around 1972. From then until his retirement in 1988, he was assigned to the environmental control department, working first for a month in building 78 and then primarily out of building 101, the "Institute", for about three years, and then out of building 92, a new building. As part of this last job, he would regularly, mostly on a monthly basis, enter and work in buildings 89, 90, 91, 105, 107, and 109. He would occasionally spend time in buildings 62, 82, 83, 85, 124. In summary, he spent substantial periods of time working in buildings 80-84 (eleven years), 70 (seven years), 54 (four years), 102 (six years), 78 (one month), 101 (three years) and 92 (thirteen years).

According to plaintiff, all the buildings in which he worked were warmed by forced air heaters which were fed steam from visible, insulated pipes. The insulation was "whitish-gray." It was almost uniformly "deteriorating, cracking, crumbling, peeling and flaking" in every room in which he worked. Generally, he worked for substantial periods of time within six to twenty feet of the "hot" pipes and the fans which circulated the hot air. He frequently observed dust on the pipes and noticed that the fans blew that dust out into the workplace. When he worked in building 78 for a month in 1972 with a machine known as an "autoclave," a device for "sterilizing media . . . or contaminated glassware or equipment," which was about four feet by six feet, he noted that it was covered with whitish-gray insulation which would dislodge when he brushed against it. He described the pipes in buildings 89, 90, and 91 as "covered with dust." In the early 1950's, sometime before 1953, he saw pipefitters working in building 80-84. Their work caused "whitish gray" debris, an insulating material not specifically described as containing asbestos, to fall all around the plaintiff for about a minute until he walked away. That is the only occasion on which plaintiff said he was covered with a dusty material which might have been asbestos.

According to plaintiff's expert witnesses, whose testimony was uncontradicted, plaintiff contracted mesothelioma as a result of his exposure to asbestos during his forty-four year employment at Squibb. They also indicated that unlike asbestosis or cancer of the lung caused by asbestos, mesothelioma, a cancer of the lining of the lung, can be caused by relatively small exposures to asbestos, but that all exposures to asbestos contributed to the disease process. This brings us to the testimony bearing upon the critical liability issue. For even assuming asbestos caused plaintiff's fatal illness, a point no longer at issue in this case, to recover damages he must still prove the source of that asbestos was the asbestos-containing product of a particular defendant. In that regard, we must carefully consider the testimony in relation to plaintiff's work history.

OI began manufacturing Kaylo, an asbestos-containing hot pipe insulating cover, and asbestos block, sheets of insulating material, in 1948. In 1953, OCF became the exclusive distributor of these materials for OI. In 1958, OCF purchased the business from OI and continued to use the brand name "Kaylo." In 1972, OCF stopped manufacturing these materials.

On the issue of product identification plaintiff relied primarily on the testimony of four witnesses: Frank Abode (so described at trial, but referred to by the parties in their briefs as Frank Abate), Frank Montzi, John Horvath, and Michael Furchak.

Abode came to work at Squibb as a painter in 1945. From 1957 to 1981 he was the supervisor of the painting and insulation department. According to him, about half the hot pipe insulation used by his staff was Kaylo, at least after 1962. He also said one of the painters' jobs was painting the asbestos-containing block and pipecovering. Other witnesses indicated that Squibb had a crew of about eight insulators whose primary job was the installation and repair of insulating material on a daily basis. However, major insulation jobs were performed by outside contractors.

Montzi worked as an insulator at Squibb from 1969 to 1988. When he started at Squibb, he "mostly used" Kaylo tubes for hot pipes, he worked all over the plant doing "quite a bit" of pipe insulation repair, and he put Kaylo in buildings 70, 80-84, 90, 92, 105, 107, 109, and in "a lot of buildings." Although Kaylo is pink in color, he said that once it was cut it "would make a lot of white dust." (Plaintiff worked his last thirteen years in building 92 and would visit, among others, buildings 105, 107, and 109 during that time on a monthly basis.)

Horvath worked at Squibb as an insulator from 1962 to 1985. He said he worked on pipe and block insulation "throughout the whole plant." He did not indicate what percentage was Kaylo, though he did say it was used.

Furchak was the President of Caylon Insulation Company. He started the business in 1964 and went out of business in 1986. He supplied Squibb with insulation. OCF was his major supplier and most of the pipe covering material he, in turn, supplied to Squibb was Kaylo. However, he could not estimate how much he supplied over the years. Nor was there any indication of the percentage of Squibb's insulation business which came to his company.

There was considerable testimony with respect to Squibb's use of asbestos pipe covering material and other asbestos-containing products made by defendants other than OCF and OI. Indeed, there was evidence from defendants indicating that up until the 1960's most of the asbestos-containing materials used at Squibb came from Johns-Manville and other companies.

II

Plaintiff contends that the above evidence shows that fifty percent of the pipe covering in the buildings comprising the plant was Kaylo. However, at best, the evidence shows that substantial amounts of asbestos-containing Kaylo were present throughout the facilities sometime after 1958. While the Squibb insulators may have been using Kaylo fifty percent of the time, much of the insulation work was also done by the outside contractors, only some of which used Kaylo. Nonetheless, plaintiff has shown that he was probably exposed to Kaylo in relatively close quarters for a number of years, particularly while working steadily in building 92 (for his last thirteen years) where Montzi said he installed it, as well as on a monthly basis during those last thirteen years in buildings 90, 105, 107, and 109, where Montzi also recalled installing this product. That exposure must be considered in relation to the uncontradicted medical testimony indicating that far less exposure to asbestos can cause mesothelioma than is required for other asbestos related diseases and that cumulative exposures increase the probability that a person will develop this fatal cancer.

Defendants contend the trial court improperly denied their motions for directed verdicts and for judgments notwithstanding the jury's verdict. Although according to them, plaintiff failed to prove that either of their products was a proximate cause of plaintiff's mesothelioma, they are not contending in this appeal that the disease was not caused by exposure to asbestos in the Squibb plant. Rather, the contention is that plaintiff failed to prove proximate cause in the sense that as to each defendant there was insufficient evidence its product was a substantial factor in causing or exacerbating the disease.

The leading case in New Jersey on this aspect of causation is Sholtis v. American Cyanamid Co., 238 N.J. Super. 8, 568 A.2d 1196 (App. Div. 1989). The court held that to prevail against a particular defendant in an asbestos case, the plaintiff must provide sufficient direct or circumstantial evidence from which a reasonable jury could infer that "sometime during [his] work history . . . [he] was exposed to a defendant's friable asbestos frequently and on a regular basis, while [he] was in close proximity to it (balancing these factors) . . ." Id. at 31. In addition, of course, there must be "competent evidence, usually supplied by expert proof, establishing a nexus between the exposure and plaintiff's condition . . ." Ibid. This is the so-called "frequency, regularity and proximity test" adopted by most courts confronted with this issue. 238 N.J. at 28-29. Under this test, plaintiff cannot rest on evidence which merely demonstrates that a defendant's asbestos product was present in the workplace or that he had "casual or minimal exposure" to it. Goss v. American Cyanamid Co., 278 N.J. Super. 227, 236, 650 A.2d 1001 (App. Div. 1994).

In adopting for New Jersey the "frequency, regularity and proximity test" for medical proximate cause in asbestos cases, the Sholtis court was careful to point out the distinction between causation and allocation of fault among numerous defendants whose product may have contributed in varying degrees to the resulting disease. In that case, ninety percent of the asbestos delivered to the plant where plaintiffs worked was manufactured by Johns-Manville which was then not subject to suit due to bankruptcy. Id. at 20 n.7. The court said:

Plaintiffs have been exposed to multiple products over a long period of time, but one manufacturer, Johns-Manville, apparently has been responsible for the vast majority of the exposures. In such a case, can the exposure to products constituting but five to ten percent of the friable asbestos at American Cyanamid be considered a proximate cause of Sholtis' death and Lee's injuries? At the outset, we state that for a defendant to be held liable, the exposure to the products of such defendant, whether proven directly or circumstantially, or if reconstructed or even risk-weighted, must have been a proximate cause of, i.e., a substantial factor in bringing about, plaintiffs' injuries. If the potentially culpable Wellington defendants (apart from Porter Hayden) were each responsible for a fractional share of the remaining five to ten percent, a jury might have a hard time finding that their products were substantial factors contributing to plaintiffs' asbestosis. Additionally, there have been several other settling defendants whose products would be required to be similarly analyzed on a proximate cause basis, thus reducing the Wellington defendants' percentages possibly to fractions of one percent. Young v. Latta, 233 N.J. Super. 520, 523, 559 A.2d 465 (App.Div. 1989).

Yet should the small percentage involved bar a plaintiff's claim as a matter of law? We know that a five percent finding will sustain liability. Stephenson v. R.A. Jones & Co., Inc., 103 N.J. 194, 198-199, 510 A.2d 1161 (1986). A plaintiff has a right to a full, not a ninety to ninety-five percent recovery; and even a ninety to ninety-five percent responsible party has a right to contribution under the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 et seq., and the Comparative Negligence Act, N.J.S.A. 2A:15-5.3. The fact that there may be several parties dividing this five to ten percent responsibility should not dilute the rights of a plaintiff or principal defendant.

[Id. at 25-6.]

The court further concluded that defendants should be jointly and severally liable unless they "could better apportion their responsibility." Id. at 27-28.

The issue of product identification has often troubled courts. To place plaintiff's case in proper perspective we review a representative sampling of the reported decisions, beginning with cases in which the plaintiff was unsuccessful.

In Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), an asbestosis case, the court held that summary judgment was properly granted as to defendant Raymark because the only evidence was four invoices indicating purchases of Raymark asbestos cloth by plaintiff's employer and there was no evidence showing when or where those products were used. Id. at 1163. Summary judgment was also held to have been properly granted to defendant Pittsburgh Corning Corporation because plaintiff only testified that "he was exposed to an asbestos-containing pipe covering [made by Pittsburgh] on ten to fifteen occasions of between one and eight hours duration during the term of his employment. * * * [That] exposure to [the pipe covering] was not sufficient to raise a permissible inference that such exposure was a substantial factor in the development of his asbestosis." Ibid. In Menne v. Celotex Corp., 861 F.2d 1453 (10th Cir. 1988), the plaintiff, a shipyard pipefitter, proved that for about four and one-half years while working in ships he was exposed to asbestos due to his particularly close proximity to insulators who were installing asbestos products and generating asbestos dust on docked ships. Thereafter, for the next thirty years he worked in private industry where he had various exposures to the asbestos products of multiple manufacturers. At age sixty-six, he came down with mesothelioma. Numerous manufacturers of asbestos products were joined as defendants in the suit. Two major contributors of asbestos products to plaintiff's work sites were not defendants. The jury found four asbestos product manufacturers liable. Plaintiff could not identify any particular asbestos products to which he was exposed during his time at the shipyard. However, his key witness was able to identify ten different manufacturers whose products were used at the shipyard during the years in question. According to this witness, he used appellants asbestos products on every ship on which he worked. There was, however, no evidence that he worked on the same ships as plaintiff. The court said:

The testimony was insufficient to establish the likelihood of frequent or sustained exposure to asbestos dust from the products of each appellant, and a jury finding of some Shipyard exposure from each's products is not enough. From the circumstantial evidence, there is no way of ascertaining the regularity or frequency of Menne's exposure to visible asbestos dust from a given defendant's products. Such exposure might have been frequent or sustained, or it might have been sporadic and short. On this matter the jury could only speculate.

[ Id. at 1464.]

See also, Robertson v. Allied Signal, Inc., 914 F.2d 360 ...


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