Before Judges Baime, Brochin and Wefing
The opinion of the court was delivered by: Brochin, J.A.D.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County
In this FELA *fn1 case, the jury found that defendant Port Authority Trans-Hudson Corporation (PATH)'s negligence and plaintiff Vasilios Kapsis' cigarette smoking were both proximate causes of his asbestosis and of his laryngeal cancer. The jury determined that Mr. Kapsis' total damages were $3,000,000 for pain and suffering and $732,000 for lost wages, and it apportioned seventy-five percent of the total negligence to PATH and twenty-five percent to Mr. Kapsis. On PATH's motion for a new trial or a remittitur, Mr. Kapsis was given the choice of accepting a reduction of his award for lost wages to $170,000 or having the amount of lost wages, but no other issue, redetermined at a new trial. He accepted the remittitur. After uncontested deductions for benefits under the Railroad Retirement Act, 45 U.S.C.A. §§ 231 to 231v, judgment was entered in his favor and against PATH for $2,377,500.
PATH has appealed and Mr. Kapsis has cross-appealed. PATH argues that the jury verdict is contrary to the weight of the evidence and that it is "mathematically wrong and excessive." Mr. Kapsis contends that the award should not have been reduced by apportionment because "no evidence was offered to establish a reasonable basis to apportion the plaintiff's lung disease between plaintiff's occupational exposures and his smoking."
Mr. Kapsis was sixty-one years of age at the time of trial. He worked for PATH as a trackman from 1969 to 1978 and as a machine repairman from 1978 to October 1993. While he was working as a trackman, he spent most of his time in the twelve or thirteen train tunnels that run between Newark, the World Trade Center, Jersey City, Hoboken, and Thirty-third Street in New York. As a machine repairman, he worked part of the time in an area referred to as the Hoboken Shop. He ate his lunches and took his coffee breaks either in the tunnels or in the Hoboken Shop.
Pipes, high voltage wires, and electrical connectors in the tunnels were protected by asbestos insulation. (In 1986 or 1987, some of the asbestos was removed by persons in white helmets and "space suits.") Trains and other machinery caused vibrations that would shake the asbestos materials, releasing asbestos fibers into the air. There were clouds of white dust in the tunnels. According to expert testimony, these clouds of dust probably indicated concentrations of asbestos in the air in quantities far greater than permitted by OSHA standards. In the Hoboken Shop, there was asbestos insulation wrapped around a heat transfer pipe and a hot water heater. A retired PATH employee who had worked alongside Mr. Kapsis also testified that there were asbestos, diesel fuel and fumes, dust, and other substances in their work areas. PATH's current safety supervisor confirmed that there was steel dust and asbestos in the tunnels and asbestos at the Hoboken Shop.
In the course of Mr. Kapsis' work in the tunnels, he came into contact with the steel particles and asbestos fibers, with diesel fumes from machinery that was used for track repair, and with other potentially hazardous substances, including kerosene, diesel fuel, and weed killer. His cotton work gloves would absorb these materials. There would be thick dust on his hands and clothes and particles would regularly fall into his food and coffee. He would cough black dust and blood from his mouth and nose while he was working.
PATH did not warn Mr. Kapsis or his co-workers about the dangers of the materials they came into contact with and they were not trained how to protect themselves from the ill effects of these substances. There was no ventilation in the areas where Mr. Kapsis worked. He was not given any protective equipment except for a paper mask provided to him when he was working as a machine repairman in the 1980s.
Mr. Kapsis smoked one to two packs of cigarettes a day for thirty years. He also drank alcoholic beverages moderately.
In 1993, Mr. Kapsis consulted a doctor because his voice was becoming hoarse. A biopsy was taken. He was told that he had laryngeal cancer. An incision was made part way through his neck, through his throat and to the left side of his chest. His vocal chords and voice box were surgically removed. A tracheotomy was performed so that he could breathe through a hole in his throat. After his operation, an infection developed and he had to return to the hospital for two more weeks and for additional surgery. He underwent a program of radiation treatment seven days a week for seven weeks. His face and neck were burned in the course of the treatment.
As a result of the operation, Mr. Kapsis cannot speak except by use of a vibrator, an artificial voice box that generates sound. He feels that people are looking and laughing at him when he uses the voice box. At trial Mr. Kapsis' speech was inaudible to the jury and the trial judge noted that it was difficult for him to speak and difficult for others to understand him. An interpreter, who apparently stood or sat next to him, repeated his words to make them comprehensible to the jury. Because the operation to remove Mr. Kapsis' vocal chords has closed off his windpipe, he now breathes through the hole in his throat. He can no longer take showers because of the danger of getting water into that hole. He is short of breath when he climbs stairs or walks short distances, either from his tracheotomy or from pleural asbestosis, or a combination of both. His asbestosis has made him fearful that he will develop lung cancer. He has moved to Florida because he can no longer tolerate cold weather.
Dr. Susan M. Daum, who was accepted as an expert in internal medicine, occupational medicine, reading of x-rays, and epidemiology, testified that Mr. Kapsis suffered from laryngeal cancer, bladder cancer, and pleural asbestosis. She stated her professional that his exposure to asbestos, steel particles, diesel or gasoline fumes, and other noxious substances while he was working for PATH was a proximate cause of his laryngeal cancer, and that his smoking and, to a minimal degree, his consumption of alcoholic beverages, probably contributed to causing that condition. She also testified that diesel exhaust fumes and, to a lesser degree, cigarette smoking probably caused Mr. Kapsis' bladder cancer, and that exposure to asbestos alone caused his pleural asbestosis. Dr. Daum, and PATH's experts also, testified that there was no way to apportion causation between Mr. Kapsis' smoking and his exposure to hazardous substances at work.
Dr. Michael Ellenbecker, an industrial hygienist, testified that the working conditions to which Mr. Kapsis was exposed indicated that PATH had not provided him with a reasonably safe place in which to work. According to Dr. Ellenbecker, PATH exposed Mr. Kapsis to very hazardous materials which were known to be carcinogenic. Methods were available to reduce their hazard, but those methods were not utilized. Adequate respiratory equipment, ventilators, and protective gloves should have been provided. Dr. Ellenbecker stated that Mr. Kapsis should have been warned about the dangers of his work place, he ...