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Fayer v. Keene Corp.

April 28, 1998

GREGORY FAYER, PLAINTIFF-RESPONDENT,
v.
KEENE CORPORATION; PITTSBURGH CORNING CORPORATION; ACANDS, INC.; ANCHOR PACKING CORPORATION; ARMSTRONG WORLD INDUSTRIES, INC.; BRAND INSULATION COMPANY; PORTER HAYDEN COMPANY; DURAMETALLIC CORPORATION; FIBREBOARD CORPORA- TION; FLEXITALLIC GASKET COMPANY, INC.; FLINTKOTE BUILDING PRODUCTS; GAF CORPORATION; GARLOCK, INC.; NATIONAL GYPSUM COMPANY; TURNER AND NEWALL, PLC; AND U.S. GYPSUM COMPANY, DEFENDANTS, AND OWENS-CORNING, *FN1 DEFENDANT-APPELLANT.



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

Before Judges Baime, Brochin and Wefing

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

Argued February 4, 1998

From approximately 1969, when plaintiff Gregory Fayer was eighteen years old, until some time after 1976, he worked at jobs where the air was heavy with microscopic asbestos fibers from insulation materials that contained asbestos. Inhaling the asbestos fibers injured his lungs. He sued seventeen of the companies which manufactured and sold products containing the asbestos to which he was exposed. All of the defendants except Owens-Corning settled or were severed before trial. The jury found that he had suffered damages of $100,000. Of that amount, $35,000 represented compensation for "pain, suffering, and disability," and $65,000 for the cost of "future medical surveillance due to his asbestos-related injuries." The jury also found that Owens- Corning was responsible for fifteen percent of his exposure to asbestos fibers and, therefore, for that percentage of the damage award.

The theory of Fayer's cause of action was that the products containing asbestos were defective. The sole defect which he asserted at trial was that they lacked adequate warnings that exposure to asbestos was dangerous because minute fibers that would be released into the air were likely to be inhaled and posed a grave risk of causing serious disease, including cancer of the lungs and other organs.

The trial Judge instructed the jury that he had found as a matter of law that the asbestos-containing products of all the defendants were defective because their warnings were inadequate. He also instructed the jury that he had ruled "as a matter of law, that . . . plaintiff has sustained an asbestos injury, to wit scarring of the pleura." Owens- Corning does not contest those instructions on appeal, although it does dispute the seriousness of plaintiff's injuries.

Two proximate cause issues were seriously contested at trial. One was whether and to what extent Owens-Corning's asbestos fibers were a proximate cause of the injuries to plaintiff's lungs and the other was whether the inadequacy of the warnings provided by the manufacturers and sellers of asbestos products was a proximate cause of plaintiff's allowing himself to be exposed to asbestos fibers. See Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 209 (1984) ("`If the basis for recovery under strict liability is inadequacy of warnings . . . , then plaintiff would be required to show that an adequate warning or instruction would have prevented the harm.'") (citation omitted). To carry his burden of proof on the second issue, plaintiff relied on the "heeding presumption," see Coffman v. Keene Corp., 257 N.J. Super., 279, 290 (App. Div. 1992), aff'd, 133 N.J. 581 (1993), and on his own testimony that he would not have exposed himself to an atmosphere heavy with asbestos dust if he had been warned of the risks. To controvert those proofs, Owens-Corning relied on plaintiff's testimony and interrogatory answers from which the jury would have been entitled to find that he had continued to work in the presence of asbestos even after he knew of its dangers. From that finding, the jury might have inferred that the absence of adequate warnings was not a proximate cause of plaintiff's exposure and of his resulting condition because the presence of adequate warnings would probably not have caused him to alter his conduct.

That is the context in which Owens-Corning argues on appeal that the trial court's jury instructions on proximate cause were inadequate and that its answer to an inquiry from the jury on that issue during its deliberations was confusing. Owens-Corning asserts as an additional reason for a new trial that the court erred by permitting plaintiff, contrary to the terms of the class action settlement of all claims against Johns Manville, to waive his claim against that company after Owens-Corning had already delivered its opening framed in reliance on plaintiff's election to assert the claim. Owens-Corning also contends that it is entitled to a new hearing under the collateral source rule because, following the verdict, the court should have compelled plaintiff to disclose the insurance payments he will receive to defray his costs of future medical surveillance and that he should have deducted those payments from his award.

During summations, the attorneys for both parties talked about the extent of plaintiff's exposure to asbestos fibers from Owens-Corning's products and also about whether adequate warnings would have caused plaintiff to avoid asbestos exposure or whether warnings would have been futile because his apprenticeship training had alerted him to everything adequate warnings could have taught him. The attorney for Owens-Corning framed the issue of proximate cause as follows:

One, I think the Judge is going to instruct you, there's an issue as to proximate cause. You have to decide whether or not, and it will be in his charge if you listen carefully, whether or not the failure to warn, not the fact that the product contained asbestos, but whether or not the failure to warn was a proximate cause of the injury. That's a preliminary question. Then you have to decide whether exposure to my client's products was a substantial, substantial contributing factor to the injuries. And if it wasn't, you should find in our favor.

Of the two proximate cause issues -- Owens-Corning's asbestos as a proximate cause of the disease and the inadequacy of warnings as a proximate cause of plaintiff's permitting himself to be exposed to asbestos fibers -- the court dwelled only on the first. It instructed the jury repeatedly and at some length about the necessity of deciding whether asbestos dust from the products of each of the sellers was a substantial contributing cause of plaintiff's injuries. The only reference to the issue of whether failure to warn was a proximate cause of plaintiff's injuries was the following:

Plaintiff is entitled to the presumption that in the absence of proof to the contrary he would have heeded a warning if the same had been placed on the product. Therefore, what makes these asbestos containing products defective products is the failure of the defendants to provide any warning. You must, therefore, accept that the asbestos products in this case are legally unsafe and defective products. You must determine if the defect failure to warn was a proximate cause of the plaintiff's injuries and damages.

[(Emphasis added).]

The following is how the Judge summarized his charge on ...


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