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Sarkozy v. A.P. Green Industries

July 31, 2009

HELEN SARKOZY, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF FRANCIS SARKOZY, PLAINTIFF,
v.
A.P. GREEN INDUSTRIES, INC., A DIVISION OF GLOBAL INDUSTRIAL TECHNOLOGIES, INC., INDIVIDUALLY AND AS SUCCESSOR TO A.P. GREEN FIREBRICK COMPANY AND A.P. GREEN REFRACTORIES CO., THE ANCHOR PACKING COMPANY, ARMSTRONG WORLD INDUSTRIES, INC., FORMERLY ARMSTRONG CORK COMPANY AND ARMSTRONG CONTRACTING AND SUPPLY, ASBESTOS CLAIMS MANAGEMENT CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO NATIONAL GYPSUM COMPANY, ASBESTOS LTD. AND SMITH ASBESTOS CO. AND ALTER EGO OF AND/OR SUCCESSOR TO NATIONAL ASBESTOS MINES LTD., ASTEN, INC., THE BABCOCK & WILCOX COMPANY, INDIVIDUALLY AND AS SUCCESSOR TO B&W REFRACTORIES LIMITED, STANDARD REFRACTORIES LIMITED AND HOLMES BLUNT LIMITED, THE CELOTEX CORPORATION, INDIVIDUALLY AND AS SUCCESS TO PHILIP CAREY CORP., PHILIP CAREY MFG. CO., PHILIP CAREY CO., INC., XPRU CORPORATION, BRIGGS MFG. COMPANY, PANACON CORPORATION, SMITH & KANZLER, INC. AND QUEBEC ASBESTOS CORP., LTD., CERRO WIRE & CABLE CO., INC., INDIVIDUALLY AND AS SUCCESSOR TO AND/OR ALSO KNOWN AS THE ROCKBESTOS COMPANY, ROCKBESTOS WIRE AND CABLE CO. AND ROCKBESTOS SURPRENANT CABLE CORPORATION, CERTAINTEED CORPORATION, FORMERLY CERTAINTEED PRODUCTS CORP., INDIVIDUALLY AND AS SUCCESSOR TO KEASBEY AND MATTISON COMPANY, COMBUSTION ENGINEERING, INC., INDIVIDUALLY AND AS SUCCESSOR TO M.H. DETRICK COMPANY, WALSH REFRACTORY CORP., AND REFRACTORY AND INSULATION CORP., NOW KNOWN AS C. & E. REFRACTORIES, INC., DANA CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO SPICER ENTERPRISES, INC., DAYTON ELECTRIC MANUFACTURING, DURABLA MANUFACTURING COMPANY, DURIRON COMPANY, INC., E&B MILL SUPPLY CO., EAGLE-PICHER INDUSTRIES, INC., ELIZABETH INDUSTRIAL HARDWARE CO., A/K/A ELIZABETH INDUSTRIAL SUPPLY CO., A DIVISION OF GUYON GENERAL PIPING, INC., EMPIRE-ACE INSULATION MFG. CORP., INDIVIDUALLY AND AS SUCCESSOR TO EMPIRE ASBESTOS CO. AND ACE ASBESTOS MFG. COMPANY, FIBREBOARD CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO FIBREBOARD PAPER PRODUCTS CORPORATION, PABCO PRODUCTS, INC., AND PLANT, RUBBER & ASBESTOS WORKS, INC., FLEXITALLIC, INC., FORMERLY FLEXITALLIC GASKET COMPANY, INC., THE FLINKTOTE COMPANY, FOSTER WHEELER CORPORATION, GAF CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO THE RUBEROID CO. AND VERMONT ASBESTOS CORPORATION, GARLOCK, INC., GENERAL SIGNAL CORPORATION, GENERAL SUPPLY COMPANY, GEORGIA-PACIFIC CORPORATION, HAHN R.S. & SONS, INC., HERCULES CHEMICAL COMPANY, INC., INDUSTRIAL WELDING SUPPLY, INC., INGERSOLL-RAND COMPANY, J. FEGELY & SON HARDWARE COMPANY, INC., INDIVIDUALLY AND AS SUCCESSOR TO AND/OR DOING BUSINESS AS W.A. TYDEMAN COMPANY, JANOS INDUSTRIAL INSULATION, INC., KING INSULATION COMPANY, INC., NOW KNOWN AS KING-DANDORF INSULATION, LEHIGH GASKET COMPANY, LOSEY & CO., INC., M.H. DETRICK COMPANY, MADSEN & HOWELL, INC., METROPOLITAN REFRACTORIES CORPORATION, OWENS-CORNING FIBERGLAS CORPORATION, OWENS-ILLINOIS, INC., PFIZER, INC., PITTSBURGH CORNING CORPORATION, PPG INDUSTRIES, INC., FORMERLY KNOWN AS PITTSBURGH PLATE GLASS COMPANY, INDIVIDUALLY AND AS SUCCESSOR TO AND/OR ALTER EGO OF PITTSBURGH CORNING CORPORATION, PULMOSAN SAFETY EQUIPMENT CORPORATION, QUIGLEY COMPANY, INC., RAPID AMERICAN CORP., INDIVIDUALLY AND AS SUCCESSOR TO THE CELOTEX CORPORATION, PHILIP CAREY MFG. CO., PHILIP CAREY COMPANY, INC., XPRU CORPORATION, BRIGGS MANUFACTURING COMPANY, PANACON CORPORATION, SMITH & KANZLER, INC. AND QUEBEC ASBESTOS CORP., LTD., ROBERT A. KEASBEY COMPANY, ROCKBESTOS WIRE AND CABLE CO., INDIVIDUALLY AND AS SUCCESSOR TO AND/OR ALSO KNOWN AS THE ROCKBESTOS COMPANY, CERRO WIRE & CABLE CO., INC. AND ROCKBESTOS-SURPRENANT CABLE CORPORATION, SAFEGUARD INDUSTRIAL EQUIPMENT CO., SCAPA DRYER FABRICS, INC., SHERMAN AND CHAPLIN, INC., TURNER & NEWALL, P.L.C., INDIVIDUALLY AND AS SUCCESSOR TO AND ALTER EGO OF KEASBEY & MATTISON COMPANY AND BELL ASBESTOS MINES, LTD., UNITED STATES GYPSUM COMPANY, UNITED STATES MINERAL PRODUCTS COMPANY, VICTAULIC COMPANY OF AMERICA, VIKING PUMP INC., W.A. TYDEMAN CO., DIVISION OF J. FEGELY & SON, INC., WOOLSULATE CORPORATION, WORTHINGTON CORPORATION, JAM INDUSTRIES, INC., INDIVIDUALLY AND AS SUCCESSOR TO ACHENBACH & BUTLER, A.O. SMITH CORPORATION, A.W. CHESTERTON COMPANY, A-B ELECTRICAL SUPPLY COMPANY, AALBORG INDUSTRIES, INC., INDIVIDUALLY AND AS SUCCESSOR TO ERIE CITY IRON WORKS AND ZURN INDUSTRIES, INC., ALBANY INTERNATIONAL CORP., INDIVIDUALLY AND D/B/A PRESS FABRICS DIVISION, MT. VERNON DRYER FABRICS DIVISION AND/OR ALBANY FABRICS DIVISION, ALPHA PAINT COMPANY, INC., INDIVIDUALLY AND D/B/A ALPHA LUMBER & SUPPLY CO., INC., AMERICAN STANDARD INC., FORMERLY AMERICAN RADIATOR & STANDARD SANITARY CORP., INDIVIDUALLY AND AS SUCCESSOR TO KEWANEE BOILER COMPANY, INC., AND THE TRANE COMPANY, AUTOMATIC SWITCH COMPANY, BLACK CLAWSON, INC., BUFFALO PUMPS, INC., BURNHAM CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO BURNHAM BOILER CORP. AND AS A SUCCESSOR TO KEWANEE BOILER COMPANY, INC., PENN BOILER & BURNER CO. AND SPENCER BOILER COMPANY, COLLINS PACKING CO., INC., COLT INDUSTRIES, INC., FAIRBANKS MORSE ENGINE DIVISION, CRANE CO., INDIVIDUALLY AND AS SUCCESSOR TO AND/OR DOING BUSINESS AS NATIONAL - U.S. RADIATOR DIVISION OF CRANE CO., NATIONAL BOILER, AND THATCHER BOILER, A DIVISION OF CRANE COMPANY, CROWDER JR. COMPANY, INC., INDIVIDUALLY AND AS SUCCESSOR TO H.N. CROWDER, JR. COMPANY, DURAMETALLIC CORPORATION, EATON CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO VICKERS, INCORPORATED, EDWARDS ENGINEERING CORP., EIMCO PROCESS EQUIPMENT COMPANY, A DIVISION OF BAKER HUGHES INCORPORATED, THE FAIRBANKS COMPANY, A CALIFORNIA CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO THE FAIRBANKS COMPANY, A NEW JERSEY CORPORATION, FROMM ELECTRIC SUPPLY CORP., GENERAL ELECTRIC COMPANY, GL&V PULP GROUP, INC., INDIVIDUALLY AND AS SUCCESSOR TO BELOIT CORPORATION AND AS SUCCESSOR TO IMPCO DIVISION OF INGERSOLL-RAND COMPANY, GOULDS PUMPS, INCORPORATED, GREENE TWEED & COMPANY, HAJOCA CORP., HERMAN SOMMER & ASSOCIATES, INC., HONEYWELL INTERNATIONAL, INC., AS SUCCESSOR TO ALLIED SIGNAL, INC. AND AFTERMARKET BRAKE AND FRICTION MATERIALS DIVISION OF BENDIX CORPORATION, IMO INDUSTRIES, INC., AS SUCCESSOR TO AND FORMERLY KNOWN AS DELAVAL TURBINE, TRANSAMERICA DELAVAL, AND IMO DELAVAL, INVENSYS SYSTEMS, INC., INDIVIDUALLY AND AS SUCCESSOR TO THE FOXBORO COMPANY, ITT CORPORATION, AS PARENT OF BELL & GOSSETT DIVISION, JAGENBERG, INC., JAM INDUSTRIES, INC., INDIVIDUALLY AND AS SUCCESSOR TO ACHENBACH & BUTLER, LA BOUR PUMP CO., INC., LEEDS & NORTHRUP COMPANY, LINCOLN INDUSTRIAL, A PENTAIR COMPANY, MARSHALL INDUSTRIAL TECHNOLOGIES, FORMERLY KNOWN AS MARSHALL MAINTENANCE, MILTON ROY COMPANY MOYNO, INC., THE NASH ENGINEERING COMPANY, NELESJAMESBURY, INC., NICOLET PAPER COMPANY DIVISION, A DIVISION OF INTERNATIONAL PAPER COMPANY, INDIVIDUALLY AND AS SUCCESSOR TO NICOLET PAPER COMPANY, INC., PARKER HANNIFAN CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO SCHRADER BELLOWS AND SINCLAIR COLLINS, THE PEERLESS HEATER COMPANY, DIVISION OF PEERLESS INDUSTRIES, INC., PERMATEX INDUSTRIAL CORPORATION, RARITAN SUPPLY COMPANY, INDIVIDUALLY AND AS SUCCESSOR TO BRIDGE SUPPLY CO., RARITAN VALLEY PLUMBING SUPPLY CO., RICE BARTON CORPORATION, INDIVIDUALLY AND FORMERLY KNOWN AS RICE, BARTON & FALES CO., INC., RIDGEWOOD PLUMBING & HEATING CORPORATION, INDIVIDUALLY AND FORMERLY KNOWN AS AND/OR DOING BUSINESS AS RIDGEWOOD PLUMBING SUPPLY CO., HACKENSACK PLUMBING SUPPLY CO. AND HUNTERDON PLUMBING, HEATING & COOLING, INC., ROCKWELL MANUFACTURING COMPANY, SLOAN VALVE CO., SPIRAX SARCO, INC., INDIVIDUALLY AND AS SUCCESSOR TO SARCO COMPANY, INC., THE STROBER-HADDONFIELD GROUP, INC., INDIVIDUALLY AND DOING BUSINESS AS APEX LUMBER MART, INC., HADDONFIELD LUMBER CO. AND STROBER NEW JERSEY BUILDING SUPPLY CENTER, SVI CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO STOCKHOLM VALVES & FITTINGS, INC., UNION PUMP COMPANY, THE WALWORTH COMPANY, WEAVEXX CORPORATION, WEIL-MCLAIN, A DIVISION OF THE MARLEY COMPANY, SUCCESSOR IN INTEREST TO THE WYLAIN COMPANY, WESTINGHOUSE ELECTRIC CORPORATION, ZIDELL VALVE CORP., INDIVIDUALLY AND AS SUCCESSOR TO ZIDELL EXPLORATIONS, INC., ZURN INDUSTRIES, INC., INDIVIDUALLY AND AS SUCCESSOR TO ERIE CITY IRON WORKS, BP AMERICA INC., INDIVIDUALLY AS SUCCESSOR TO AND/OR DOING BUSINESS AS THE STANDARD OIL COMPANY, INDUSTRIAL HOLDINGS CORPORATION, KENNECOTT MINING CORPORATION, KENNECOTT CORPORATION, KENNECOTT INDUSTRIES, INC., AND LOCKPORT FELT CO., A DIVISION OF THE CARBORUNDUM COMPANY, SPX CORPORATION, INDIVIDUALLY, AS SUCCESSOR TO AND DOING BUSINESS AS DEZURIK CO., THE COPES COMPANY, COPES-VULCAN, INC., DEZURK/COPES-VULCAN, DANIEL VALVE COMPANY AND SPX VALVES & CONTROLS, AND WICHITA CLUTCH CO., INC., DEFENDANTS.
WILLARD A. BAYLOR, HENRY E. ALTNER, JOSEPH H. BECKER, CHESTER A. BELLIS, WILLIAM H. CARVER, ROBERT A. CLAUSEN, EDWARD S. COLE, JAMES E. COLE, ROBERT C. FLECK, JAMES J. GARDNER, ARTHUR A. HALLINGER, RICHARD R. HOFFMAN, BERNARD L. KELLY, ROBERT C. KING, BARRY LAFEVRE, FRANK N. LANSCHE, ERNEST J. MINARDI, EDWARD PEARSON, TUNIS PURSELL, WILLIAM J. REINBOLD, REGINALD R. WONDOLOSKI, AND KENNETH H. YOB, PLAINTIFFS, AND WALTER L. PATTON, AND HARRY H. WILSON, DECEASED, BY HIS HIS EXECUTRIX JEANETTE M. WILSON, AND JEANETTE WILSON, HIS WIFE, PLAINTIFFS-RESPONDENTS,
v.
A.O. SMITH CORPORATION, A.P. GREEN INDUSTRIES, INC., A DIVISION OF GLOBAL INDUSTRIAL TECHNOLOGIES, INC., INDIVIDUALLY AND AS SUCCESSOR TO A.P. GREEN FIREBRICK COMPANY, A.P. GREEN REFRACTORIES CO. AND METROPOLITAN REFRACTORIES CORPORATION, A.W. CHESTERTON COMPANY, A-B ELECTRICAL SUPPLY COMPANY, AALBORG INDUSTRIES, INC., INDIVIDUALLY AND AS A SUCCESSOR TO ERIE CITY IRON WORKS AND ZURN INDUSTRIES, INC., ALBANY INTERNATIONAL CORP., INDIVIDUALLY AND D/B/A PRESS FABRICS DIVISION, MT. VERNON DRYER FABRICS DIVISION AND/OR ALBANY FABRICS DIVISION, ALPHA PAINT COMPANY, INC., INDIVIDUALLY AND D/B/A ALPHA LUMBER & SUPPLY CO., INC., AMERICAN STANDARD INC., FORMERLY AMERICAN RADIATOR & STANDARD SANITARY CORP., INDIVIDUALLY AND AS SUCCESSOR TO KEWANEE BOILER COMPANY, INC. AND THE TRANE COMPANY, THE ANCHOR PACKING COMPANY, ARMSTRONG WORLD INDUSTRIES, INC., FORMERLY ARMSTRONG CORK COMPANY AND ARMSTRONG CONTRACTING AND SUPPLY, ASBESTOS CLAIMS MANAGEMENT CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO NATIONAL GYPSUM COMPANY, ASBESTOS LTD. AND SMITH ASBESTOS CO. AND ALTER EGO OF AND/OR SUCCESSOR TO NATIONAL ASBESTOS MINES LTD., ASTEN, INC., AUTOMATIC SWITCH COMPANY, THE BABCOCK & WILCOX COMPANY, INDIVIDUALLY AND AS SUCCESSOR TO B&W REFRACTORIES LIMITED, STANDARD REFRACTORIES LIMITED AND HOLMES BLUNT LIMITED, BLACK CLAWSON, INC., BUFFALO PUMPS, INC., BURNHAM CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO BURNHAM BOILER CORP. AND AS A SUCCESSOR TO KEWANEE BOILER COMPANY, INC., PENN BOILER & BURNER CO. AND SPENCER BOILER COMPANY, THE CELOTEX CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO PHILIP CAREY CORPORATION, PHILIP CAREY MFG. CO., PHILIP CAREY COMPANY, INC., XPRU CORPORATION, BRIGGS MANUFACTURING COMPANY, PANACON CORPORATION, SMITH & KANZLER, INC. AND QUEBEC ASBESTOS CORP., LTD., CERRO WIRE & CABLE CO., INC., INDIVIDUALLY AND AS SUCCESSOR TO AND/OR ALSO KNOWN AS THE ROCKBESTOS COMPANY, ROCKBESTOS WIRE AND CABLE CO. AND ROCKBESTOS-SURPRENANT CABLE CORPORATION, CERTAINTEED CORPORATION, FORMERLY CERTAINTEED PRODUCTS CORP., INDIVIDUALLY AND AS SUCCESSOR TO KEASBEY AND MATTISON COMPANY, COLLINS PACKING CO., INC., COLT INDUSTRIES, INC., FAIRBANKS MORSE ENGINE DIVISION, COMBUSTION ENGINEERING, INC., INDIVIDUALLY AND AS SUCCESSOR TO M.H. DETRICK COMPANY, WALSH REFRACTORY CORPORATION AND REFRACTORY AND INSULATION CORPORATION, NOW KNOWN AS C. & E. REFRACTORIES, INC., CRANE CO., INDIVIDUALLY AND AS SUCCESSOR TO AND/OR DOING BUSINESS AS NATIONAL - U.S. RADIATOR DIVISION OF CRANE CO., NATIONAL BOILER, AND THATCHER BOILER, A DIVISION OF CRANE COMPANY, CROWDER JR. COMPANY, INC., INDIVIDUALLY AND AS SUCCESSOR TO H.N. CROWDER, JR. COMPANY, DANA CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO SPICER ENTERPRISES, INC. AND VICTOR GASKETS, DAYTON ELECTRIC MANUFACTURING, DURAMETALLIC CORPORATION, E&B MILL SUPPLY CO., EAGLE-PICHER INDUSTRIES, INC., EATON CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO VICKERS, INCORPORATED, EDWARDS ENGINEERING CORP., EIMCO PROCESS EQUIPMENT COMPANY, A DIVISION OF BAKER HUGHES INCORPORATED, ELIZABETH INDUSTRIAL HARDWARE CO., A/K/A ELIZABETH INDUSTRIAL SUPPLY CO., A DIVISION OF GUYON GENERAL PIPING, INC., EMPIRE-ACE INSULATION MFG. CORP., INDIVIDUALLY AND AS SUCCESSOR TO EMPIRE ASBESTOS CO. AND ACE ASBESTOS MFG. COMPANY, THE FAIRBANKS COMPANY, A CALIFORNIA CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO THE FAIRBANKS COMPANY, A NEW JERSEY CORPORATION, FIBREBOARD CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO FIBREBOARD PAPER PRODUCTS CORPORATION, PABCO PRODUCTS, INC., AND PLANT, RUBBER & ASBESTOS WORKS, INC., THE FLEXITALLIC GROUP, INC., INDIVIDUALLY AND AS SUCCESSOR TO FLEXITALLIC, INC. AND FLEXITALLIC GASKET COMPANY INC., THE FLINTKOTE COMPANY, FLOWSERVE CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO THE DURIRON COMPANY, INC., VALTEK CONTROL VALVES AND WILSON-SNYDER PUMPS, FOSTER WHEELER CORPORATION, THE FOXBORO COMPANY, FROMM ELECTRIC SUPPLY CORP., GAF CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO THE RUBEROID CO. AND VERMONT ASBESTOS CORPORATION, GARLOCK, INC., GENERAL ELECTRIC COMPANY, GENERAL SIGNAL CORPORATION, GENERAL SUPPLY COMPANY, GEORGIA-PACIFIC CORPORATION, GL&V PULP GROUP, INC., INDIVIDUALLY AND AS SUCCESSOR TO BELOIT CORPORATION AND AS SUCCESSOR TO IMPCO DIVISION OF INGERSOLL-RAND COMPANY, GOULDS PUMPS, INCORPORATED, GREENE TWEED & COMPANY, HAJOCA CORP., HERCULES CHEMICAL COMPANY, INC., HERMAN SOMMER & ASSOCIATES, INC., HONEYWELL INTERNATIONAL, INC. AS SUCCESSOR TO ALLIED SIGNAL, INC. AND AFTERMARKET BRAKE AND FRICTION MATERIALS DIVISION OF BENDIX CORPORATION, HUNTERDON PLUMBING, HEATING & COOLING, INC., IMO INDUSTRIES INC., AS SUCCESSOR TO AND FORMERLY KNOWN AS DELAVAL TURBINE, TRANSAMERICA DELAVAL, AND IMO DELAVAL, INDUSTRIAL WELDING SUPPLY, INC., INGERSOLL-RAND COMPANY, ITT CORPORATION, AS PARENT OF BELL & GOSSETT DIVISION, J. FEGELY & SON HARDWARE COMPANY, INC., INDIVIDUALLY AND AS SUCCESSOR TO AND/OR DOING BUSINESS AS W.A. TYDEMAN COMPANY, JAGENBERG, INC., JAM INDUSTRIES, INC., INDIVIDUALLY AND AS SUCCESSOR TO ACHENBACH & BUTLER, JANOS INDUSTRIAL INSULATION, INC., KING INSULATION COMPANY, INC., NOW KNOWN AS KING-DANDORF INSULATION, LA BOUR PUMP CO., INC., LEEDS & NORTHRUP COMPANY, LEHIGH GASKET COMPANY, LINCOLN INDUSTRIAL, A PENTAIR COMPANY, LOSEY & CO., INC., M.H. DETRICK COMPANY, MADSEN & HOWELL, INC., MARSHALL INDUSTRIAL TECHNOLOGIES, FORMERLY KNOWN AS MARSHALL MAINTENANCE, MILTON ROY COMPANY, MOYNO, INC., THE NASH ENGINEERING COMPANY, NELESJAMESBURY, INC., OWENS-CORNING FIBERGLAS CORPORATION, OWENS-ILLINOIS, INC., PARKER HANNIFIN CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO SCHRADER BELLOWS AND SINCLAIR COLLINS, THE PEERLESS HEATER COMPANY, DIVISION OF PEERLESS INDUSTRIES, INC., PERMATEX INDUSTRIAL CORPORATION, PFIZER, INC., PITTSBURGH CORNING CORPORATION, PPG INDUSTRIES, INC., FORMERLY KNOWN AS PITTSBURGH PLATE GLASS COMPANY INDIVIDUALLY AND AS SUCCESSOR TO AND/OR ALTER EGO OF PITTSBURGH CORNING CORPORATION, PULMOSAN SAFETY EQUIPMENT CORPORATION, QUIGLEY COMPANY, INC., RAPID AMERICAN CORP., INDIVIDUALLY AND AS SUCCESSOR TO THE CELOTEX CORPORATION, PHILIP CAREY MFG. CO., PHILIP CAREY COMPANY, INC., XPRU CORPORATION, BRIGGS MANUFACTURING COMPANY, PANACON CORPORATION, SMITH & KANZLER, INC. AND QUEBEC ASBESTOS CORP., LTD., RARITAN SUPPLY COMPANY, INDIVIDUALLY AND AS SUCCESSOR TO BRIDGE SUPPLY CO., RARITAN VALLEY PLUMBING SUPPLY CO., RICE BARTON CORPORATION, INDIVIDUALLY AND FORMERLY KNOWN AS RICE, PARTON & FALES CO., INC., ROBERT A. KEASBEY COMPANY, ROCKBESTOS WIRE AND CABLE CO., INDIVIDUALLY AND AS SUCCESSOR TO AND/OR ALSO KNOWN AS THE ROCKBESTOS COMPANY, CERRO WIRE & CABLE CO., INC. AND ROCKBESTOS-SURPRENANT CABLE CORPORATION, ROCKWELL MANUFACTURING COMPANY, SAFEGUARD INDUSTRIAL EQUIPMENT CO., SHERMAN AND CHAPLIN, INC., SLOAN VALVE CO., SPIRAX SARCO, INC., INDIVIDUALLY AND AS SUCCESSOR TO SARCO COMPANY, INC., THE STROBER-HADDONFIELD GROUP, INC., INDIVIDUALLY AND DOING BUSINESS AS APEX LUMBER MART, INC., HADDONFIELD LUMBER CO. AND STROBER NEW JERSEY BUILDING SUPPLY CENTER, SVI CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO STOCKHAM VALVES & FITTINGS, INC., TURNER & NEWALL, P.L.C., INDIVIDUALLY AND AS SUCCESSOR TO AND ALTER EGO OF KEASBEY & MATTISON COMPANY AND BELL ASBESTOS MINES, LTD., UNION PUMP COMPANY, UNITED STATES GYPSUM COMPANY, UNITED STATES MINERAL PRODUCTS COMPANY, VICTAULIC COMPANY OF AMERICA, VIKING PUMP INC., W.A. TYDEMAN CO., A DIVISION OF J. FEGELEY & SON, INC., THE WALWORTH COMPANY, WEAVEXX CORPORATION, WEIL-MCLAIN, A DIVISION OF THE MARLEY COMPANY, SUCCESSOR IN INTEREST TO THE WYLAIN COMPANY, WESTINGHOUSE ELECTRIC CORPORATION, WOOLSULATE CORPORATION, WORTHINGTON CORPORATION, ZIDELL VALVE CORP., INDIVIDUALLY AND AS SUCCESSOR TO ZIDELL EXPLORATIONS, INC., AND ZURN INDUSTRIES, INC., INDIVIDUALLY AND AS SUCCESSOR TO ERIE CITY IRON WORKS, DEFENDANTS, AND DURABLA MANUFACTURING COMPANY, DEFENDANT/THIRD-PARTY PLAINTIFF,
v.
GOODYEAR TIRE AND RUBBER COMPANY AND GOODYEAR CANADA, INC., THIRD-PARTY DEFENDANT, AND SCAPA DRYER FABRICS, INC., DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT,
v.
MANVILLE TRUST, THIRD-PARTY DEFENDANT.
WALTER W. GRUBE, DECEASED, BY HIS CO-EXECUTRIXES, LINDA J. COLE AND BEVERLY A. WEEAST, PLAINTIFF-RESPONDENT,
v.
A.O. SMITH CORPORATION, A.W. CHESTERTON COMPANY, A-B ELECTRICAL SUPPLY COMPANY, ALBANY INTERNATIONAL CORP., INDIVIDUALLY AND D/B/A/ PRESS FABRICS DIVISION, MT. VERNON DRYER FABRICS DIVISION AND/OR ALBANY FABRICS DIVISION, ALPHA PAINT COMPANY, INC., INDIVIDUALLY AND D/B/A ALPHA LUMBER & SUPPLY CO., INC., AMERICAN STANDARD INC., FORMERLY AMERICAN RADIATOR & STANDARD SANITARY CORP., INDIVIDUALLY AND AS SUCCESSOR TO KEWANEE BOILER COMPANY, INC. AND THE TRANE COMPANY, ASTEN, INC., AUTOMATIC SWITCH COMPANY, BLACK CLAWSON, INC., BUFFALO PUMPS, INC., BURNHAM CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO BURNHAM BOILER CORP. AND AS A SUCCESSOR TO KEWANEE BOILER COMPANY, INC., PENN BOILER & BURNER CO., SPENCER BOILER COMPANY AND BRYAN BOILERS, CERRO WIRE & CABLE CO., INC., INDIVIDUALLY AND AS SUCCESSOR TO AND/OR ALSO KNOWN AS THE ROCKBESTOS COMPANY, ROCKBESTOS WIRE AND CABLE CO. AND ROCKBESTOSSURPRENANT CABLE CORPORATION, CERTAINTEED CORPORATION, FORMERLY CERTAINTEED PRODUCTS CORP., INDIVIDUALLY AND AS SUCCESSOR TO KEASBEY AND MATTISON COMPANY, AND UNISUL, COLLINS PACKING CO., INC., COLT INDUSTRIES, INC., FAIRBANKS MORSE ENGINE DIVISION, COMBUSTION ENGINEERING, INC., INDIVIDUALLY AND AS SUCCESSOR TO M.H. DETRICK COMPANY, WALSH REFRACTORY CORPORATION AND REFRACTORY AND INSULATION CORPORATION, NOW KNOWN AS C. & E. REFRACTORIES, INC., CRANE CO., INDIVIDUALLY AND AS SUCCESSOR TO AND/OR DOING BUSINESS AS NATIONAL - U.S. RADIATOR DIVISION OF CRANE CO., NATIONAL BOILER, AND THATCHER BOILER, A DIVISION OF CRANE COMPANY, CROWDER JR. COMPANY, INC., INDIVIDUALLY AND AS SUCCESSOR TO H.N. CROWDER, JR. COMPANY, DANA CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO SPICER ENTERPRISES, INC. AND VICTOR GASKETS, DAYTON ELECTRIC MANUFACTURING, DURABLA MANUFACTURING COMPANY, DURAMETALLIC CORPORATION, E&B MILL SUPPLY CO., EATON CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO VICKERS, INCORPORATED, EDWARDS ENGINEERING CORP., EIMCO PROCESS EQUIPMENT COMPANY, A DIVISION OF BAKER HUGHES INCORPORATED, ELIZABETH INDUSTRIAL HARDWARE CO., A/K/A ELIZABETH INDUSTRIAL SUPPLY CO., A DIVISION OF GUYON GENERAL PIPING, INC., THE FAIRBANKS COMPANY, A CALIFORNIA CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO THE FAIRBANKS COMPANY, A NEW JERSEY CORPORATION, THE FLINTKOTE COMPANY, FLOWSERVE CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO THE DURIRON COMPANY, INC., FOSTER WHEELER CORPORATION, FROMM ELECTRIC SUPPLY CORP., GARLOCK, INC., GENERAL ELECTRIC COMPANY, GENERAL SIGNAL CORPORATION, GENERAL SUPPLY COMPANY, GEORGIA-PACIFIC CORPORATION, GOULDS PUMPS, INCORPORATED, GREENE TWEED & COMPANY, HAJOCA CORP., HERCULES CHEMICAL COMPANY, INC., HERMAN SOMMER & ASSOCIATES, INC., HONEYWELL INTERNATIONAL, INC., IMO INDUSTRIES INC., AS SUCCESSOR TO AND FORMERLY KNOWN AS DELAVAL TURBINE, TRANSAMERICA DELAVAL, AND IMO DELAVAL, INDUSTRIAL WELDING SUPPLY, INC., INGERSOLL-RAND COMPANY, INVENSYS SYSTEMS, INC., INDIVIDUALLY AND AS SUCCESSOR TO THE FOXBORO COMPANY, ITT CORPORATION, INDIVIDUALLY, DOING BUSINESS AS AND SUCCESSOR TO BELL & GOSSETT COMPANY AND/OR BELL & GOSSETT DIVISION AND MARLOW PUMPS, JAGENBERG, INC., JAM INDUSTRIES, INC., INDIVIDUALLY AND AS SUCCESSOR TO ACHENBACH & BUTLER, LA BOUR PUMP CO., INC., LEEDS & NORTHRUP COMPANY, LEHIGH GASKET COMPANY, LINCOLN INDUSTRIAL, A PENTAIR COMPANY, LOSEY & CO., INC., MADSEN & HOWELL, INC., MARSHALL INDUSTRIAL TECHNOLOGIES, FORMERLY KNOWN AS MARSHALL MAINTENANCE, MILTON ROY COMPANY, MOYNO, INC., THE NASH ENGINEERING COMPANY, NELES-JAMESBURY, INC., NICOLET PAPER COMPANY DIVISION, A DIVISION OF INTERNATIONAL PAPER COMPANY, INDIVIDUALLY AND AS SUCCESSOR TO NICOLET PAPER COMPANY, INC., OWENS-ILLINOIS, INC., PARKER HANNIFIN CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO SCHRADER BELLOWS AND SINCLAIR COLLINS, THE PEERLESS HEATER COMPANY, DIVISION OF PEERLESS INDUSTRIES, INC., PERMATEX INDUSTRIAL CORPORATION, PFIZER, INC. (FORMERLY CHAS. PFIZER & CO., INC.), PULMOSAN SAFETY EQUIPMENT CORPORATION, QUIGLEY COMPANY, INC., RAPID AMERICAN CORP., INDIVIDUALLY AND AS SUCCESSOR TO THE CELOTEX CORPORATION, PHILIP CAREY MFG. CO., PHILIP CAREY COMPANY, INC., XPRU CORPORATION, BRIGGS MANUFACTURING COMPANY, PANACON CORPORATION, SMITH & KANZLER, INC. AND QUEBEC ASBESTOS CORP., LTD., RARITAN SUPPLY COMPANY, INDIVIDUALLY AND AS SUCCESSOR TO BRIDGE SUPPLY CO., RARITAN VALLEY PLUMBING SUPPLY CO., RICE BARTON CORPORATION, INDIVIDUALLY AND FORMERLY KNOWN AS RICE, BARTON & FALES CO., INC., RIDGEWOOD PLUMBING & HEATING CORPORATION, INDIVIDUALLY AND FORMERLY KNOWN AS AND/OR DOING BUSINESS AS RIDGEWOOD PLUMBING SUPPLY CO., HACKENSACK PLUMBING SUPPLY CO. AND HUNTERDON PLUMBING, HEATING & COOLING, INC., ROBERT A. KEASBEY COMPANY, ROCKBESTOS WIRE AND CABLE CO., INDIVIDUALLY AND AS SUCCESSOR TO AND/OR ALSO KNOWN AS THE ROCKBESTOS COMPANY, CERRO WIRE & CABLE CO., INC. AND ROCKBESTOSSURPRENANT CABLE CORPORATION, ROCKWELL INTERNATIONAL, SAFEGUARD INDUSTRIAL EQUIPMENT CO., SHERMAN AND CHAPLIN, INC., SLOAN VALVE CO., SPIRAX SARCO, INC., INDIVIDUALLY AND AS SUCCESSOR TO SARCO COMPANY, INC., THE STROBER-HADDONFIELD GROUP, INC., INDIVIDUALLY AND DOING BUSINESS AS APEX LUMBER MART, INC., HADDONFIELD LUMBER CO. AND STROBER NEW JERSEY BUILDING SUPPLY CENTER, SVI CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO STOCKHAM VALVES & FITTINGS, INC., UNION PUMP COMPANY, VICTAULIC COMPANY OF AMERICA, VIKING PUMP INC., THE WALWORTH COMPANY, WEAVEXX CORPORATION, WEIL-MCLAIN, A DIVISION OF THE MARLEY COMPANY, SUCCESSOR IN INTEREST TO THE WYLAIN COMPANY, WESTINGHOUSE ELECTRIC CORPORATION, WOOLSULATE CORPORATION, WORTHINGTON CORPORATION, ZIDELL VALVE CORP., INDIVIDUALLY AND AS SUCCESSOR TO ZIDELL EXPLORATIONS, INC., ZURN INDUSTRIES, INC., INDIVIDUALLY AND AS SUCCESSOR TO ERIE CITY IRON WORKS, AMCHEM PRODUCTS, INC., UNION CARBIDE CORPORATION, BP AMERICA INC., INDIVIDUALLY, AS SUCCESSOR TO AND/OR DOING BUSINESS AS THE STANDARD OIL COMPANY, INDUSTRIAL HOLDINGS CORPORATION, KENNECOTT MINING CORPORATION, KENNECOTT CORPORATION, KENNECOTT INDUSTRIES, INC., AND LOCKPORT FELT CO., A DIVISION OF THE CARBORUNDUM COMPANY, THE CONGOLEUM CORPORATION, DEZURICK, INC., AND WICHITA CLUTCH CO., INC., DEFENDANTS, AND SCAPA DRYER FABRICS, INC., DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT,
v.
MANVILLE TRUST, THIRD-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket numbers L-5603-01AS, L-5653-01AS, and L-5727-02AS.*fn1

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 15, 2008

Before Judges Carchman, Sabatino and Simonelli.

In this consolidated asbestos litigation, defendant Scapa Dryer Fabrics Inc. (Scapa) appeals from judgments awarding monetary damages to plaintiffs Walter L. Patton, the estate of plaintiff Harry H. Wilson and Wilson's wife, Jeanette Wilson (Jeanette*fn2 ), and the estate of plaintiff Walter W. Grube and Grube's daughter, Linda Cole, arising from the three plaintiffs' exposure to Scapa's asbestos-containing dryer felts in the course of their employment at Riegel Paper Mills in western New Jersey. After a six week trial, the jury awarded Patton an aggregate verdict of $514,220*fn3, Wilson an aggregate verdict of $76,102.01 and Grube an aggregate verdict of $259,045. The jury rejected the claims of two other plaintiffs, Joseph Becker and James Gardner.

On appeal, defendant asserts that some of the damage awards are excessive and against the weight of the evidence; the jury's failure to apportion liability to other defendants is against the weight of the evidence; and cumulative errors resulted in an unfair trial, warranting reversal and remand for a new trial on both liability and damages. We conclude that defendant's arguments are without merit and affirm.

We provide an extensive exposition of the facts as defendant's principal argument focuses on the evidence presented to the jury. Patton, Wilson and Grube are former employees of the Riegel Paper Company, which once operated paper mills in Milford, Warren Glen, Riegelsville and Hughesville, New Jersey. Patton worked at the company's various mills between 1956 and 1994 as a millwright. He worked throughout the mills, including in and around the paper machines. Wilson operated the paper machines at the mill in Milford for over twenty years, starting some time in the late 1970s. Grube worked at the mill in Milford for over forty years, between approximately 1939 and 1982. He was a lathe operator, working primarily in the machine shop, while also performing maintenance work and assisting in other parts of the mill as needed.

In its mills, Riegel used dryer felts on its massive paper machines to dry wet rolls of paper that enter the machines.*fn4 The dryer felts, large in size, moved at hundreds to thousands of feet per minute, depending upon the grade of paper being produced.

The average dryer felt lasted approximately three months to one year. Mill employees stated that the felts needed to be changed regularly due to wear and tear and fraying. The dryer felts deteriorated upon exposure to abrasions, heat, chemicals and water - conditions present in the dryer section of a paper machine.

At its Warren Glen and Milford mills, Riegel used both Scapa's asbestos*fn5 and non-asbestos felts. Yet Riegel also used dryer felts produced or supplied by companies such as defendants Albany International Corp., Asten, Huyck and Lockport Felt Co. In addition to the dryer felts, there were other products used at the Riegel paper mills that contained asbestos, for example: ventilation hoods over the drying machines, gaskets, insulation, putty, packing, gloves, blankets and transite panels.

Scapa manufactured dryer felts for its customers, including Riegel, on a special order basis. Scapa maintained "master cards," which were "recipe cards" that identified the customer's design specifications. Scapa's master card records show that the last year Riegel purchased an asbestos-containing felt for either its Milford or Warren Glen mills was 1975.

One Scapa felt, examined at trial, revealed an asbestos content of 47.9 percent; however, Steven Paskal, plaintiffs' expert in industrial hygiene and occupational asbestos exposure, stated that he had seen asbestos percentages ranging anywhere between ten and eighty percent.

Scapa manufactured and sold asbestos-containing dryer felts from the 1950s through the late 1970s, but the company continued to purchase asbestos yarns through 1981. Although Scapa knew that asbestos fibers could be released from the dryer felts in the weaving process, it did not place warnings on its asbestos-containing felts for several reasons. It did not believe that the final product was dangerous or would release asbestos fibers, because the felts ran wet through the paper machines, thereby reducing the dust. Additionally, some felts were manufactured with a resin coating that encapsulated the asbestos fibers and prevented their release despite extensive wear and tear.

As the trial progressed, the jury was educated about paper production. By its very nature, the paper-making process is a dusty one, with the dryer felts contributing to the overall dust level. The dryer felts released dust as they cycled through the machines, particularly as the felts deteriorated over time. Felts also emitted dust during "blow-downs," when compressed air was blown over the dryer felts in order to clear the machines of debris when the felts were changed out of the machines, and when the felts were cut for various reasons.

The machines produced externally hot conditions well over 100 degrees Fahrenheit. Although the factory's windows generally remained closed in order to prevent contamination, ventilation hoods were located above the dryer sections of the paper machines to reduce the heat, humidity and dust. Any residuary dust not removed settled on the floor and was not cleaned up immediately.

According to plaintiffs' witnesses, Patton, Wilson and Grube all worked around the paper machines and dryer felts, including Scapa felts, and were exposed to asbestos dust as part of their job responsibilities at the Riegel mills. The felts contained no warnings, and employees did not take any special precautions around the felts, nor were they instructed to do so.

The parties' experts disagreed as to whether plaintiffs were exposed to dangerous levels of asbestos fibers in the course of their employment at Riegel. James Millette, plaintiffs' expert on environmental science, microscopy, asbestos analysis and fiber release testing, performed fiber release tests on asbestos-containing dryer felts, including one manufactured by Scapa.

One of Millette's tests revealed that asbestos fibers in excess of five microns in length came off the felts when post-it notes were applied to it. According to Millette, this demonstrated that the asbestos fibers were "readily releasable," and not encapsulated as Scapa claimed. In Millette's second test, when air was blown over the felts, asbestos fibers in excess of five microns in length were released into the air. Some of those fibers were visible, but others were visible only in a beam of light or under a microscope.

Millette explained that, in a real world setting, the asbestos fibers released from the dryer felts would either be collected in a filter if there was some sort of ventilation unit, or they would become part of the settled dust. As part of the settled dust, they were subject to reentrainment, meaning that they could be "pushed back into the air" if the settled dust was disturbed, for example, through vacuuming or sweeping. He found this problematic.

Q: Can you tell us why, in an occupational setting, settled dust containing asbestos might be a concern?

A: Well, this is a reservoir for all sorts of fibers to accumulate, and depending on what cleaning practices are done in that industry, you could have fibers that are resuspended from years of activity, something that happened years before, you may still have particles in the dust that remain there that are continually resuspended, and continue on as a source of exposure.

Paskal agreed with Millette on the issue of reintrainment. He further opined that, based upon his own experience and studies done by others with which he was familiar, the asbestos present in a paper mill from dryer felts was friable (capable of being bent or shaped), not isolated, capable of being disturbed and capable of being inhaled.

He stated that individuals regularly in the vicinity of the blow-down of a paper machine could be exposed to substantial amounts of breathable asbestos fibers released from dryer felt, as could anybody regularly exposed to any activity that imparted energy against a dryer felt (for example, shaking, cutting, tearing, putting it on vibrating surfaces or running it through a paper machine). Moreover, such occupational exposure would create a significant risk for the development of asbestos-related disease.

Yet, both Millette and Paskal qualified their opinions by agreeing that the environmental conditions at the dryer end of a paper machine; for example, the heat, humidity and ventilation, would affect the ability of asbestos fibers from a dryer felt to become airborne and respirable.

Defendant's experts took the opposite position. They did not believe that working with asbestos-containing dryer felts created a risk of significant asbestos exposure or the development of asbestos-related disease. Paul Carlson, defendant's expert in industrial hygiene, stated that in his experience, the dust produced in a paper mill is comprised of paper dust. He did not believe that persons who worked with asbestos-containing dryer felts would be subjected to significant asbestos exposure because the asbestos levels measured in the paper mill environment were "close to ambient or background levels" that exist in the air we all breathe.

Defendant's expert in air monitoring for asbestos levels, environmental engineering, and the testing of asbestos-containing products for fiber release, Vittorio Argento, agreed with Carlson's assessment. He stated that working with asbestos-containing dryer felts in papers mills was not hazardous. High humidity levels and ventilation systems prevented asbestos fibers from becoming airborne; there was no great tendency for reentrainment, i.e., for asbestos fibers to become airborne once they settled; and testing of air quality in paper plants showed that the asbestos exposure was similar to the ambient air that people are exposed to throughout the day. He did not believe that Patton, Wilson and Grube were exposed to hazardous levels of asbestos from Scapa dryer felts.

The damage issues were also contentious. With respect to the process of disease development in connection with asbestos exposure, the jury heard from: (1) Arnold Brody, Ph.D., plaintiffs' expert as a "cellbiologist regarding asbestos"; (2) Dr. Susan Daum, plaintiffs' expert in the "[d]iagnosis of asbestos-related diseases[, the] nature, cause and effect of asbestos-related diseases[,] and the disease-causing propensity of asbestos fiber types and substances"; (3) Dr. Stephen Newman, plaintiffs' expert in the "diagnosis and treatment of asbestos disease, [the] etiology of asbestos disease, [the] causes and effects of asbestos disease, and pulmonary and occupational [medicine]"; (4) Dr. Malcolm Hermele, plaintiffs' expert on the "[d]iagnosis and treatment of asbestos disease[, the] causes and effects of asbestos disease, [and] internal and occupational medicine"; (5) Dr. Steven Dikman, plaintiffs' expert in "[p]athology[, the] diagnosis of asbestos-related diseases[,] and [the] nature, cause and effect of asbestos-related diseases"; (6) Dr. Benjamin Safirstein, defendant's expert in "pulmonary medicine, occupational-related pulmonary medicine, the diagnosis and treatment of asbestos-related disease, and the causes and effects of occupational asbestos exposure on human health"; and (7) Dr. Andrew Ghio, defendant's "expert in the diagnosis and treatment of lung disease, occupational lung disease, including lung cancer and asbestosis."

Plaintiffs' experts explained that the three diseases associated with cumulative asbestos exposure are: (1) asbestosis; (2) cancer, including but not limited to cancer of the lung, voice box, esophagus, stomach and colon; and (3) mesothelioma, a cancer of the mesothelial cells on the outside lining of the lung.

Asbestosis develops from repeated exposure to asbestos over time. In the disease process of asbestosis, asbestos fibers collect in the lung causing scar tissue to develop as a defensive response. Significant scar tissue may impair lung function. Cancer, including mesothelioma, develops when the asbestos fibers cause genetic errors that generate cancer cells that multiply over time.

Mesothelioma differs from lung cancer in two significant ways. First, mesothelioma is a malignancy of the lining surfaces of various body cavities, such as the lung, chest, abdominal and peritoneal cavities which can then spread from those surfaces. By contrast, the "target site for lung cancer" is the airways of the respiratory tract (the "mucociliary escalator").

Second, asbestos exposure is the only known cause of mesothelioma in North America; it cannot be caused by cigarette smoke. By contrast, lung cancer has many causes, including cigarette smoke. It is extremely rare, although possible, for a non-smoking individual exposed to asbestos to develop lung cancer as a result. On the other hand, "[s]moking is interactive with asbestos in causing lung cancer," such that people who smoke and are also exposed to asbestos have a greater risk of developing lung cancer than those exposed only to smoke or asbestos alone.

The symptoms of asbestosis, lung cancer and mesothelioma are the same: shortness of breath, chest pain, distinctive lung abnormalities visible by x-ray and reduced pulmonary functioning. Daum described the effects of mesothelioma and lung cancer as follows:

The mesothelial tissue, which is forming the tumor, compresses the lung, makes people short of breath. It grows through the chest wall and invades nerve roots in the chest wall, and makes you have a lot of pain. When nerves are invaded in cancer, it hurts like terrible. And it secretes fluid, so the whole lung fills up with fluid. It spreads along surfaces.

It does metastasize in the sense of the way other cancers do, through the bloodstream. Mostly it spreads along surfaces, and it spreads into the abdomen and onto the other side, into the lung, and chokes the person. Cancer death is often from infection because the immune system is depressed. It's often from lack of nutrition, because the cancer secretes poisons which rob the body of nutrition, or simply from the body of the tumor that takes nutrition from the body. And cancer patients become very thin, and if you've ever seen one, it's horrible. And it causes a lot of pain. So they die of pneumonia, asphyxia, the lung being compressed too much to breathe; infection; invasion of the heart; invasion of the trachea, cutting off the breathing or the heart. I mean, those are some typical ways.

All three diseases (asbestosis, cancer, and mesothelioma) have long latency periods, of up to fifty years or more, and they are incurable and usually progressive. The disease progression, if any, should be monitored through regular medical testing such as pulmonary function tests, x-rays, CT scans, PET scans and screenings for colon cancer. If cancer or mesothelioma is diagnosed, it is sometimes possible to prolong life with chemotherapy. However, not everyone exposed to asbestos will develop asbestos-related disease. And, not every person diagnosed with asbestos-related pleural disease will develop cancer.

Patton was alive at the time of trial, and he was a non-smoker. He was diagnosed with asbestos-related lung changes at a union-sponsored screening in 2000, later confirmed by his personal physician. He complained of shortness of breath, restrictions on his physical abilities, a cough and mild chest pain upon physical exertion. However, the results of his pulmonary functioning tests were in the normal or above normal range.

After his diagnosis, he became severely depressed. The depression abated with time. However, he continued to live in fear of a painful death from asbestos-related cancer, particularly in light of his brother's death from mesothelioma. He went for regular doctors' visits and cancer screenings.

Plaintiffs' medical expert, Newman, opined that the pleural thickening and scarring visible on Patton's x-rays and the pulmonary symptoms Patton was experiencing, were an asbestos-related pleural disease caused by occupational asbestos exposure, including exposure to Scapa's asbestos-containing dryer felts. He recommended that Patton undergo regular medical monitoring including checkups, colonoscopies and CT scans of the chest.

Defendant's medical experts, Safirstein and Ghio, reviewed Patton's medical records and x-rays and found no evidence of any asbestos-related disease. Safirstein found pleural plaques on Patton's lungs, which were "a proxy for prior asbestos exposure," but did not indicate any disease. Ghio did not find any pleural plaques on Patton's lungs. He found only left-sided pleural abnormalities, which he maintained were associated with Patton's past exposure to tuberculosis (TB).

Ghio admitted, however, that he had seen no evidence that Patton ever suffered from an active TB outbreak. And, plaintiffs' expert, Daum, stated that Patton's positive tine test suggested only that he had been exposed to a bacteria from TB--not that he had ever actively suffered from the disease. Patton's testimony and other medical records suggest that he never had TB. Daum believed that the pleural plaques on Patton's lungs were caused by asbestos exposure.

Patton described his exposure to asbestos-related products. He indicated that before working at the mills, he worked for Johns-Manville for approximately six months in 1955, unloading 100-pound bags of asbestos from box cars. Although he may have been exposed to asbestos in that employment, he believed his job at Riegel was the primary source of his exposure.

As in the case of Grube and Wilson, Patton acknowledged that, at the mills, he was exposed to asbestos-containing gaskets, pumps, packing, asbestos cement, asbestos joint compound and other unidentified products manufactured or supplied by various other named defendants in this action.

As for Wilson, he was diagnosed with stage four lung cancer in 2000. He had been a heavy smoker, smoking between one and two packs per day until he quit in 1990. He underwent debilitating chemotherapy treatments, and the cancer went into remission for a period of time. However, it recurred in his spine and his liver, and it did not respond to radiation and chemotherapy. His health continued to fail, and he ultimately died from the cancer on May 28, 2002.

In a certification, Wilson alleged that during his working years he was exposed to asbestos cements manufactured by Johns-Manville, Philip Carey, Eagle-Picher and many other companies whose names he could not recall. He also claimed he was exposed to "other types of asbestos insulation materials," but he did not name any companies who manufactured or supplied those products.

Jeanette was married to Wilson for forty years, and they had four sons together. Theirs was a closely knit family, and Wilson was an excellent husband, father and grandfather. Jeanette missed the strength, love and companionship Wilson provided to her, and she wished he could be there to help her raise their fourteen year old grandson.

Newman stated that, in combination, smoking and occupational asbestos exposure, including exposure to Scapa's asbestos-containing dryer felts, were the co-carcinogens that contributed to Wilson's death from metastatic lung cancer. By contrast, Ghio opined that Wilson did not have any asbestos-related lung disease; rather, the sole cause of his lung disease was his smoking.

Grube, a non-smoker, was diagnosed with mesothelioma in November 2001. He died of the disease in November 2002, at the age of eighty-three.

Plaintiffs' medical expert, Dikman, opined that the cause of Grube's mesothelioma and death was asbestos exposure. He further stated that Scapa's asbestos-containing dryer felts could have been a substantial contributing factor in causing Grube's disease, although he acknowledged that Grube had a history of multiple asbestos exposures.

Grube's co-worker and fellow plaintiff, Becker, described Grube as a strong but gentle man. "He was the kind of man that he didn't need a backhoe to come in and put an in-the-ground swimming pool. He dug it by hand and put the liner in." Grube's daughter, Linda Cole, explained that this was not hyperbole; her father actually had dug a hole and built an in-ground pool in his backyard.

Cole described her father as hardworking and "happy-go-lucky." She said he "always had a smile on his face." He was active throughout his life, playing baseball and golf, hunting, fishing, gardening and working on the house he had built. He had been in the Navy during World War II, and later in life he was active with the VFW. As a young man, he also was a great baseball player. He was offered an opportunity to sign with the St. Louis Cardinals, but he chose instead to marry and stay in New Jersey. He was a devoted husband, father, grandfather and great-grandfather to seven great-grandchildren. Cole stated that her father provided for her in many ways. For example, in the 1960s and 1970s, at her house, he laid sidewalks and built a stone wall, a fireplace, a bar and a deck.

After Grube moved to Florida in 1990, Cole remained close to him. They spoke two times per week, she visited him for two or three weeks in the winter, and he spent a few weeks with her every summer. He often gave her advice about how to fix things that broke around her house. And, he gave her son tips on baseball, pitching in particular.

After his mesothelioma diagnosis, Grube moved back to New Jersey to live with Cole. He was upset by the move because he was an independent, strong and active man, and he enjoyed his life in Florida. When he learned that there was no cure for his disease and the only treatments available were radiation and chemotherapy, he chose to forego treatment altogether because he had seen the effects these treatments had had on his wife, who died of cancer in 1989. However, he continued to be monitored by doctors. As the disease progressed, he suffered from weakness, shortness of breath, ...


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