August 20, 2010
BONNIE ANDERSON AND JOHN R. ANDERSON, PLAINTIFFS-RESPONDENTS,
A.J. FRIEDMAN SUPPLY CO., INC., A.J. MCNEIL CO., INC., A&M WHOLESALE HARDWARE CO., A.W. CHESTERTON, CO., INC., AFTON PUMPS, INC., AMERICAN INDUSTRIAL SUPPLY CORP., INC., AMERICAN STANDARD, INC., ATLAS TURNER INC., AVOCET ENTERPRISES, SUCCESSOR TO VENT FABRICS, INC., BRYANT MANUFACTURING CO., A DIVISION OF CARRIER CORP., BW/IP INTERNATIONAL COMPANY, F/K/A BORG WARNER INDUSTRIAL PRODUCTS INC., A FORMER SUBSIDIARY OF AND SUCCESSOR TO BORG WARNER CORPORATION, BYRON JACKSON PUMPS, AND UNITED PUMPS & COMPRESSORS, CALON INSULATION CORP., CENTRAL JERSEY SUPPLY COMPANY, C.E. THURSTON & SONS, INC., CERTAINTEED CORPORATION, FORMERLY CERTAINTEED PRODUCTS CORP., INDIVIDUALLY AND AS SUCCESSOR TO KEASBEY & MATTISON COMPANY, CHICAGO BRIDGE & IRON COMPANY, CLARK-RELIANCE CORPORATION, CLEAVER BROOKS CO., COLLINS PACKING CO., CONVAL INC., COOPER INDUSTRIES, INC., COOPER-CROUSE HINDS, CRANE CO., CROWN CORK & SEAL COMPANY, INC., INDIVIDUALLY AND AS SUCCESSOR TO MUNDET CORK CORPORATION, DANA CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO SPICER ENTERPRISES, INC., AND VICTOR GASKETS, DB RILEY, INC., INDIVIDUALLY AND AS SUCCESSOR TO, AND/OR F/K/A DB RILEY STOKER CORPORATION, AND AS SUCCESSOR TO, AND/OR FORMERLY DOING BUSINESS AS UNION IRON WORKS, DUCT MATE INDUSTRIES, INC., DUNHAM BUSH, INC., EASTERN REFRACTORIES CO., INC., E&B MILL SUPPLY CO., ELIZABETH INDUSTRIAL HARDWARE CO., A/K/A ELIZABETH INDUSTRIAL SUPPLY CO., A DIVISION OF GUYON GENERAL PIPING, INC., EMCO FITTINGS, INC., INDIVIDUALLY AND AS SUCCESSOR TO EMCO STAINLESS, INC., FISHER CONTROLS INTERNATIONAL, INC., THE FLINTKOTE COMPANY, FLOWSERVE CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO DURIRON COMPANY, INC., VALTEK CONTROL VALVES, AND WILSON-SNYDER PUMPS, FORD, BACON & DAVIS, INCORPORATED, FOSTER WHEELER ENERGY CORP., FURINO & SONS, INC., GARLOCK, INC., GENERAL REFRACTORIES, CO., GENERAL ELECTRIC CO., GEORGIA PACIFIC, INC., GOODYEAR TIRE AND RUBBER COMPANY AND GOODYEAR CANADA, INC., GORMAN-RUPP COMPANY, INC., GREENE TWEED & COMPANY, GOULDS PUMPS, INC., H.B. SMITH, INC., HUDSON IRON AND METAL COMPANY, IDEAL SUPPLY COMPANY, IMO INDUSTRIES, INC., AS SUCCESSOR TO AND F/K/A DELAVAL TURBINE, TRANSAMERICA DELAVAL, AND IMO DELAVAL, INDUSTRIAL WELDING SUPPLY, INC., INGERSOLL-RAND CO., J.H. FRANCE, JOHN CRANE, INC., ITT CORPORATION, AS PARENT OF BELL & GOSSETT DIVISION, THE JOHANSEN COMPANY, JOHN W. WALLACE & CO., JOHN ZINK COMPANY, INDIVIDUALLY AND D/B/A GORDAN-PIATT ENERGY GROUP INC., JOULE, INC., INDIVIDUALLY AND AS SUCCESSOR TO JOULE INDUSTRIAL CONTRACTORS, KEWANNE-ROSS CORP., INDIVIDUALLY AND AS A DIVISION OF AMERICAN STANDARD, INC., KOENIG INDUSTRIAL SUPPLY, INC., INDIVIDUALLY AND AS SUCCESSOR TO KOENIG HARDWARE COMPANY, KRAEMER GUNITE, INC., LA BOUR PUMP CO., INC., LAWRENCE PUMPS, INC., LENNOX FURNACE CO., A/K/A LENNOX INDUSTRIES, INC., MADSEN & HOWELL, INC., MAGNATROL VALVE CORPORATION, MARSAM VALVES & FITTINGS CORPORATION, MASONEILAN INTERNATIONAL, INC., MELRATH SUPPLY & GASKET CO., INC., MILTON ROY COMPANY, MOSER BROTHERS, INC., NATIONAL U.S. RADIATOR DIVISION OF CRANE CO., NELES-JAMESBURY, INC., NORTH CAROLINA ENTERPRISES CO., INC., AS SUCCESSOR TO EMCO WHEATON, INC., INDIVIDUALLY AND AS SUCCESSOR TO EMCO STAINLESS INC., PACIFIC STEEL BOILER DIVISION OF CRANE CO., PETROLEUM HEAT & POWER CO., INC., PFAULDER UNITED STATES INC., A/K/A PFAULDER COMPANIES, INC., PFIZER INC., PULMOSAN SAFETY EQUIPMENT CORPORATION, QUIGLEY CO., INC., RAPID-AMERICAN CORPORATION, INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO PHILLIP CAREY MANUFACTURING CORP., RARITAN SUPPLY COMPANY, INDIVIDUALLY AND AS SUCCESSOR TO BRIDGE SUPPLY CO., RAYTHEON ENGINEERS & CONSTRUCTORS, INC., INDIVIDUALLY AND SUCCESSOR TO UNITED ENGINEERS & CONSTRUCTORS, INC., RECORD INDUSTRIAL COMPANY, RING-O-VALVE INCORPORATED, ROBERT A. KEASBEY CO., ROCKWELL MANUFACTURING COMPANY, ROSEMOUNT, INC., RUTLAND FIRE CLAY CO., D/B/A RUTLAND PRODUCTS, SAFEGUARD INDUSTRIAL EQUIPMENT CO., SCHIAVONE-BONOMO CORPORATION, SLINGMAN INDUSTRIES, F/K/A SLINGMAN INDUSTRIAL SUPPLY COMPANY, SPIRAX SARCO COMPANY, INC., INDIVIDUALLY AND AS SUCCESSOR TO SARCO COMPANY, INC., STATE INSULATION CORP., STERLING PLASTICS AND RUBBER PRODUCTS, INC., STEWART-WARNER CORP., STRAHMAN VALVES INC., SVI CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO STOCKHOLM VALVES & FITTINGS, INC., T.J. MCGLONE & CO. INC., THE ANCHOR PACKING CO., THE FOXBORO COMPANY, THE WALWORTH COMPANY, TRILCO SUPPLY COMPANY, UNION PUMP CO., UNION CARBIDE CORP., UNIROYAL, INC., A/K/A U.S. RUBBER CO., UTICA BOILERS, INC., VIKING PUMP CO., INC., VIACOM INC., SUCCESSOR BY MERGER TO CBS CORPORATION, F/K/A WESTINGHOUSE ELECTRIC CORPORATION, WEIL MCLAIN, A DIVISION OF THE MARLEY CO., AS SUCCESSOR-IN-INTEREST TO WYLAIN CO., WELCO GASES CORPORATION, WOOLSULATE CORPORATION, WORTHINGTON CORP., YARWAY CORPORATION, FORMERLY YARNELL WARING COMPANY, YORK INDUSTRIES CORP., PULMOSAN SAFETY EQUIPMENT CO., AND INFINEUM U.S.A., L.P., INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO ENJAY CHEMICAL COMPANY, DEFENDANTS, AND EXXON MOBIL CORPORATION, DEFENDANT-APPELLANT, AND DURABLA MANUFACTURING COMPANY, DEFENDANT/THIRD-PARTY PLAINTIFF,
GOODYEAR TIRE AND RUBBER COMPANY AND GOODYEAR CANADA, INC., THIRD-PARTY DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-2356-03-AS.
The opinion of the court was delivered by: A. A. RODRÍGUEZ, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez, Reisner and Chambers.
In this novel asbestos litigation, plaintiffs Bonnie and John R. Anderson, husband and wife, allege that Bonnie contracted mesothelioma from one or both exposures to asbestos at the Linden Bayway Refinery owned by defendant Exxon Mobil Corporation ("Exxon"). The first was bystander exposure from laundering John's asbestos-laden work clothes during his employment with Exxon from 1969 to 2003. The second was direct exposure during Bonnie's employment with Exxon from 1974 to 1986. Plaintiffs prevailed on their claim that Bonnie's bystander exposure was a substantial factor in her contraction of mesothelioma. Exxon now appeals from a judgment in favor of plaintiffs, awarding $7 million to Bonnie and $500,000 per quod to John, plus pre-judgment interest. We affirm.
These are the facts relevant to this appeal. Bonnie is now sixty-one years old. She married John in 1967. They have one daughter, born in 1968, and one granddaughter. In 1974, Bonnie graduated with a college degree in elementary education and library science.
John's Employment With Exxon
In 1969, and until his retirement in 2004, John held various jobs in one of Exxon's chemical plants. After three months of training, he worked until 1975 as a chemical process operator repairing pumps and filters, which required initial removal of all covering insulation. Using chisels and hand tools, and sometimes his bare hands, he would pull the insulation off in chunks. Dust would fly everywhere. Exxon used insulation on all pumps, compressors, filters, and valves. He also would dump whole bags of raw insulation into the tanks to seal holes in the filters and would put that same material into coffee cans when he had to repair the filters by hand.
Although Exxon conducted safety meetings and provided helmets to its employees at this time, it never supplied respirators or uniforms nor warned that the dust contained asbestos. John never knew what kind of insulation it was. He worked in his own street clothes, which Bonnie always laundered. Standing near the washing machine, she would shake out as much dust as possible. She often complained about the dust in his clothes and hair.
Starting in 1975, John worked for three years as a console operator inside a control room. Although the work was less dusty, he also worked overtime hours removing insulation and repairing equipment. Exxon had begun supplying gloves to its employees, but management never told John not to wear his work clothes home, nor warned him that the insulation was hazardous.
Starting in 1979, and until his retirement, John worked as an instrument technician. Although he still came into contact with asbestos insulation, his clothes were "much cleaner." Exxon had begun supplying lockers, showers, and uniforms. John, however, often worked in his own clothes or took his uniform home for Bonnie to launder, because the chemicals used by Exxon's laundry service gave him a rash. He never used the showers.
Bonnie's Employment With Exxon
In 1975, Bonnie began working at Exxon's Bayway Refinery. She trained in different jobs around the refinery for three years, but never worked in the chemical plants. She would use solvents to remove rust around "more liquidy-type components" and "high pressure steam water to wash [pipes] out." Exxon provided no uniforms, and her "clothes would be wet," "[r]eal grimy," and "[g]reasy, oily." "[She] didn't get very dusty. [She] was more grimy." Although she worked in some areas where insulators "were putting on insulation," she could not remember ever working near anyone removing insulation, nor personally working with or disturbing any asbestos or thermal insulation, nor being told that any of the materials she was using or coming into contact with contained asbestos.
After training, and until she left Exxon in 1986, she worked as an electrician. She disconnected, dismantled, cleaned, and reinstalled electrical breakers, relays, and switches in the refinery's substations. She even "sledge hammered four-inch piping" while dismantling an older substation. Only in one substation did she see a sign warning of dangerous asbestos. She and her co-workers "looked around . . . [but] couldn't see anything," so they "went in . . . and worked, did our job . . . for probably at least a week." However, she never disturbed insulation in any substation because "one little piece of dust would trigger something to shut down" and "if you shut things down in a refinery, [those things] blow up."
From 1964 until 1978, Bonnie used hormone therapy and prescription narcotics to regulate her menstrual cycles and control dysmenorrhea (severe menstrual pain and excessive bleeding during her cycles). In 1988, after being diagnosed with endometriosis and recurrent pelvic inflammatory disease, she had an oophorectomy and a total abdominal hysterectomy. Afterwards, her pain was gone. After leaving Exxon in 1986, she worked as a school librarian until 2004.
In 2001, she started having severe stomach pains and swelling. After a CT scan showed fluid in her abdomen, she had exploratory abdominal surgery. During the laparotomy, the surgeon took out six quarts of fluid, saw "multiple tumor implants," which he described "as a carpet-like implant on the pelvic peritoneum and other implants on the bowel [and] in the omentum." The surgeon diagnosed her with malignant peritoneal mesothelioma.
Mesothelioma is a "rare" cancer that develops in the linings that surround various body cavities, such as the pleural cavities enclosing the lungs, the peritoneal cavity enclosing the abdomen, or the pericardial cavity enclosing the heart. A "Final Joint Pretrial Order" indicates that "[t]he parties have stipulated that [Bonnie] suffers from malignant mesothelioma[, but Exxon] does not, stipulate that the malignant mesothelioma is asbestos related."
Bonnie was referred to Dr. John Chabot, a surgeon, and Dr. Richard Taub, M.D., an oncologist. They put her into a "Phase II clinical trial." Over the next ten months, she had two more surgeries, numerous heated and traditional chemotherapy sessions, and five and a half weeks of radiation.
In 2002, Chabot performed a surgical debulking, a procedure to remove as many tumors as possible. He found lesions in her abdominal cavity, more abdominal fluid, thickening of the omentum, enlarged lymph nodes, a small lung nodule, some lung scarring, and four liver lesions. He completely removed her omentum and two liters of abdominal fluid, and he inserted two ports so chemotherapy could be administered directly into her abdominal cavity. Chabot and Taub reviewed the pathology and confirmed her diagnosis of mesothelioma.
Bonnie began chemotherapy. During the treatments, she experienced severe abdominal pain, fatigue, depression and weakness. She required psychiatric treatment, blood transfusions for anemia, and narcotic drugs for pain. Chemotherapy continued three times a week for eight sessions and then once a week for four sessions.
After chemotherapy, she began a treatment program of gamma interferon, which induced constant flu-like symptoms. After a few weeks, Bonnie had follow-up surgery to remove additional tumors and to administer heated chemotherapy directly into her abdomen. She weighed 100 pounds.
In January 2003, she began radiation, which was scheduled for seven weeks. She became so weak that she was confined to a wheelchair. She insisted that the treatments stop because of the pain and because the radiation produced complications, including inducing hairy cell leukemia (a cancer of the lymph nodes and lymph cells), severe anemia, and bone weakening. She required a partial hip replacement. She still must undergo yearly scans to monitor her condition.
Taub testified that asbestos caused Bonnie's mesothelioma, but he could not say with certainty when she had been exposed.
He stated that she still has "two foci of disease above the liver," and she eventually will die of her disease. He "firmly disagreed . . . that the disease is curable." He has never "been able to totally get rid of [it] . . . [and was] not sure we can get rid of it in anybody." Reoccurrence and progression occur in sixty to sixty-five percent of patients. "[M]ostly it grows back in the abdomen and causes intestinal obstruction" and "chronic pain," but it also "may metastasize." The average survival rate is almost six years, but "people are living a long time with it." It affects the quality of life.
Prior to Bonnie's illness, plaintiffs were very active. They enjoyed horseback riding, hiking, camping and traveling. They often visited North Carolina, where they camped and fished. After Bonnie became sick, John took over all of the household chores, except laundry, which Bonnie continued to do. He became her "caregiver and he took care of everything," as she was often so weak that he had to carry her to the bathroom or hold her up in the shower.
After Bonnie's last treatment, plaintiffs went on a cruise to Alaska. During that trip, they took a lot of trains and buses, but Bonnie was still very weak and she often went to bed right after dinner. John spent a lot of time alone and had to give her "procrid shots" for her blood.
Plaintiffs' complaint asserted various products liability claims against Exxon and numerous defendants that manufactured and supplied asbestos. Plaintiffs sought compensatory and punitive damages, and John filed a per quod claim. Exxon answered and moved for summary judgment, arguing that plaintiffs' claims were barred by the exclusive remedy provisions of the Workers' Compensation Act (WCA), N.J.S.A. 34:15-1 to -69.3. Judge Ann G. McCormick issued an oral opinion denying the motion without prejudice. After discovery, Exxon moved for summary judgment ...
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