Beshada v. Johns-Manville Products Corp.
| Decision Date | 07 July 1982 |
| Docket Number | JOHNS-MANVILLE |
| Citation | 90 N.J. 191,447 A.2d 539 |
| Parties | , 33 A.L.R.4th 353, 13 Envtl. L. Rep. 20,533 Edward J. BESHADA, by his administratrix ad prosequendum, Eleanor Beshada; Eleanor Beshada, Executrix of the Estate of Edward J. Beshada, deceased; George J. Burdak and Rose Burdak, his wife; James D. Cannon and Bertha Cannon, his wife; Raymond D. Creed and Mary Creed, his wife; Stanley J. Drozd and Rose Drozd, his wife; Henry J. Grobelny and Pearl Grobelny, his wife; Thaddeus Kasubinski and Agnes Kasubinski, his wife; Michael Kruk; Stephen Kuzmack and Amelia Kuzmack, his wife; John G. Orsag and Susan Orsag, his wife; John Pleva and Ann Pleva, his wife; Paul Rarus; Stanley F. Sakowski and Florence Sakowski, his wife; Bernard Scully and Marcella Scully, his wife; Joseph P. Slezak and Josephine Slezak, his wife; Arthur J. Walczak and Catherine Walczak, his wife; Douglas Whitaker and Eleanor Whitaker, his wife; Henry Wondowsky and Helen Wondowsky, his wife; Albert F. Szczepanik and Sophie B. Szczepanik, his wife; Stanley Golembieski, Executor of the Estate of Walter Golembieski; and Henry V. Kowaleski and Jane Kowaleski (first name being fictitious), his wife, Plaintiffs-Appellants, v.PRODUCTS CORPORATION; Eagle-Picher Industries, Inc.; Madsen- Howell, Inc.; Raybestos-Manhattan, Inc.; GAF Corporation and Unarco Industries, Defendants- Respondents, and State Insulation Corp., et al., Defendants. Frank J. JARUSEWICZ and Mary Jarusewicz, his wife; Robert J. Rutkowski and Caroline S. Rutkowski, his wife; Michael J. Leonard and Alfonsina J. Leonard, his wife; Russell J. Hahn, and Jean Hahn, his wife; Jerry E. Covell and Alice Covell, his wife; Henry J. Keleher; Harrison Larsen; George W. Ogborne and Joan Ogborne, his wife; Stanley R. Piatek and Gloria J. Piatek, his wife; Martin Rosenthal and Helen Rosenthal, his wife; John O'Brien and Marijane O'Brien, his wife; Joseph Zakrzewski and Irene A. Zakrzewski, his wife; Ernest C. Weibrecht and Gail M. Weibrecht, his wife; William Madeline and Christine T. Madeline, his wife; Carlton H |
| Court | New Jersey Supreme Court |
Alan M. Darnell, Woodbridge, for plaintiffs-appellants Beshada et al. (Wilentz, Goldman & Spitzer, Woodbridge, attorneys; Alan M. Darnell, Karen Ann Kubulak, Perth Amboy, and Christopher M. Placitella, Highland Park, on brief).
Bryan D. Garruto, Old Bridge, for plaintiff-appellant Beckwith (Heilbrunn, Finkelstein, Heilbrunn, Garruto & Galex, Old Bridge, attorneys).
Ronald B. Grayzel, Edison, for plaintiffs-appellants Crilley (Levinson, Conover, Axelrod & Wheaton, Edison, attorneys).
David R. Gross, West Orange, for defendants-respondents Johns-Manville Products Corp., Johns-Manville Sales Corp. successor to and in lieu of Johns-Manville Products Corp. and Johns-Manville Canada, Inc., formerly known as Canadian Johns-Manville Co. Ltd., Canadian Johns-Manville Amiante Ltd., formerly Canadian Johns-Manville Asbestos Ltd., Johns-Manville Corp. (Budd, Larner, Kent, Gross, Picillo & Rosenbaum, Newark, attorneys; David J. Novack and Sebastian P. Lombardi, Newark, on brief).
Kathleen F. Moran, Livingston, for defendant-respondent Raybestos-Manhattan, Inc. (Morgan, Melhuish, Monaghan & Spielvogel, Livingston, attorneys).
Andrew T. Berry, Newark, for defendant-respondent Owens-Illinois, Inc. (McCarter & English, attorneys; Andrew T. Berry and Michael A. Tanenbaum, Newark, on brief).
Philip V. Lago, Newark, submitted a brief on behalf of defendant-respondent GAF Corp. (Hannoch, Weisman, Stern, Besser, Berkowitz & Kinney, attorneys; Anthony J. Marchetta, Newark, of counsel).
William R. Connelly, Woodbridge, submitted a brief on behalf of defendant-respondent Quigley Co., Inc., subsidiary of Pfizer, Inc. (Ravin, Davis & Sweet, Woodbridge, attorneys).
Dennis F. Carey, Livingston, submitted a brief on behalf of defendant-respondent Unarco Industries, Inc., also referred to as Unarco Industries, formerly known as Union Asbestos & Rubber Co. (Dwyer, Connell & Lisbona, Montclair, attorneys).
Peter W. Sachs, Holmdel, submitted a letter in lieu of brief on behalf of defendants-respondents A. P. Green Refractories Co. and Metropolitan Refractories, Div. of A. P. Green Refractories Co. (Sachs & Sachs, Holmdel, attorneys).
James F. McNaboe, Newark, submitted a letter in lieu of brief on behalf of defendant-respondent Eagle-Picher Industries, Inc. (Schwartz & Andolino, Livingston, attorneys).
William J. Gannon, Newark, submitted a letter in lieu of brief on behalf of defendant-respondent Madsen & Howell, Inc. (Ryan & Gannon, Newark, attorneys).
Ronald S. Suss, Elizabeth, submitted a brief on behalf of amicus curiae Karl Asch (Karl Asch, Elizabeth, attorney and on brief; Ronald S. Suss, on brief).
The Opinion of the Court was delivered by
The sole question here is whether defendants in a product liability case based on strict liability for failure to warn may raise a "state of the art" defense. Defendants assert that the danger of which they failed to warn was undiscovered at the time the product was marketed and that it was undiscoverable given the state of scientific knowledge at that time. The case comes to us on appeal from the trial court's denial of plaintiffs' motion to strike the state-of-the-art defense. For the reasons stated below, we reverse the trial court judgment and strike the defense.
These six consolidated cases are personal injury and wrongful death actions brought against manufacturers and distributors of asbestos products. Plaintiffs are workers, or survivors of deceased workers, who claim to have been exposed to asbestos for varying periods of time. They allege that as a result of that exposure they contracted asbestosis (a non-malignant scarring of the lungs), mesothelioma (a rare cancer of the lining of the chest, the pleura, or the lining of the abdomen, the peritoneum) 1 and other asbestos-related illnesses.
These cases involve asbestos exposure dating back perhaps as far as the 1930's. The suits are first arising now because of the long latent period between exposure and the discernible symptoms of asbestosis and mesothelioma. See Borel v. Fibreboard Paper Products Corporation, 493 F.2d 1076, 1083 (5th Cir. 1973). Plaintiffs have raised a variety of legal theories to support their claims for damages. The important claim, for purposes of this appeal, is strict liability for failure to warn. Prior to the 1960's, defendants' products allegedly contained no warning of their hazardous nature. Defendants respond by asserting the state-of-the-art defense. They allege that no one knew or could have known that asbestos was dangerous when it was marketed.
There is substantial factual dispute about what defendants knew and when they knew it. A trial judge in the Eastern District of Texas, the forum for numerous asbestos-related cases, has concluded that "[k]nowledge of the danger can be attributed to the industry as early as the mid-1930's ...." Hardy v. Johns-Manville Sales Corp., 509 F.Supp. 1352, 1355 (E.D.Texas 1981) (footnote omitted). Defendants...
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