Buttitta v. Allied Signal, Inc., No. A-5263-07T1 (N.J. Super. 4/5/2010), A-5263-07T1.
| Decision Date | 05 April 2010 |
| Docket Number | No. A-5268-07T1.,No. A-5263-07T1.,A-5263-07T1.,A-5268-07T1. |
| Parties | SUSAN M. BUTTITTA, Individually and as Executrix to the Estate of MARK BUTTITTA, Plaintiff-Respondent, v. ALLIED SIGNAL, INC., ALLIED CORPORATION, ALMA PRODUCTS CO., ASBESTOS FIBRE CORP., BORG & BECK, C.L. ZIMMERMAN CO., C.L. ZIMMERMAN of DELAWARE, a successor corporation to C.L. ZIMMERMAN COMPANY, GENERAL MOTORS CORP., HONEYWELL INTERNATIONAL, INC., a successor corporation to ALLIED-SIGNAL, INC., and as a successor in interest to HONEYWELL INTERNATIONAL, INC. and BENDIX, LAKE ASBESTOS OF QUEBEC, LTC., MULTIC-HEVROLET, INC., NATIONAL GYPSUM CO., RAYMARK INDUSTRIAL DIVISION, UNION CARBIDE CORP., UNION INSULATING CO., ABEX CORPORATION, AMCO, BONDALL COMPANY, CANADIAN JOHNS-MANVILLE, C. ITUH & CO. (AMERICA), INC., CARLISLE CORPORATION, DAIKIN, DELPHI AUTOMOTIVE SYSTEMS, a/k/a DELPHI CORPORATION, L.L.C., EATON BRAKE DIVISION, EATON CORPORATION, FERODO, FRICTION PRODUCTS DIVISION, ITT AMCO, JOHN HASSALL, INC., KELSEY HAYES COMPANY, KELSEY PRODUCTS DIVISION, LUK, INC., MARSHALL ECLIPSE, MULTIBESTOS, RAYBESTOS MANHATTAN, INC., ROCKWELL AXLE DIVISION, ROCKWELL BRAKE DIVISION, ROCKWELL INTERNATIONAL, UNIBOND, UNIBOND BRAKE, INC., UNIVERSAL FRICTION, and WAGNER ELECTRIC CORPORATION, Defendants, and ASBESTOS CORPORATION, LTD., and BORG-WARNER CORPORATION,<SMALL><SUP>1</SUP></SMALL> Defendants-Appellants. |
| Court | New Jersey Superior Court |
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9592-02.
Paul J. Zidlicky (Sidley Austin, L.L.P.) of the Washington, D.C. bar, admitted pro hac vice, argued the cause for appellant Borg-Warner Corporation (Hoagland, Longo, Moran, Dunst & Doukas, L.L.P., and Mr. Zidlicky, attorneys; Mr. Zidlicky, Carter G. Phillips (Sidley Austin, L.L.P.) of the Washington, D.C. bar, admitted pro hac vice, Timothy E. Kapshandy (Sidley Austin, L.L.P.) of the Washington, D.C. bar, admitted pro hac vice, Nora J. Grimbergen and Sarah E. Newsome, of counsel and on the brief).
Deborah M. Knight (Goldfein & Joseph) of the Pennsylvania bar, admitted pro hac vice, argued the cause for appellant Asbestos Corporation Limited (Madhurika Jeremiah and Ms. Knight, attorneys; Ms. Jeremiah, of counsel and on the brief; Brooke A. Bonett, on the brief).
Arnold C. Lakind argued the cause for respondent (Szaferman, Lakind, Blumstein & Blader, and Levy, Phillips & Konigsberg, attorneys; Mr. Lakind, Jeffrey P. Blumstein and Moshe Maimon, of counsel and on the brief).
Before Judges Axelrad, Fisher and Sapp-Peterson.
Mark Buttitta died of mesothelioma, a rare and fatal cancer caused by exposure to asbestos. His widow, plaintiff Susan M. Buttitta, as personal representative of the estate, brought this action against numerous defendants, alleging that Mark contracted mesothelioma when directly exposed to asbestos at a General Motors (GM) warehouse, where he worked during several summers in the early 1970's, and indirectly, from contact with his father, who worked for GM from 1952 through the 1970's.
After the pretrial disposition of the claims against most of the defendants, a trial against the remaining defendants — Borg-Warner Corporation, Asbestos Corporation Ltd. (ACL), C.L. Zimmerman Company (Zimmerman), and Honeywell International, Inc. and its predecessor, Bendix (collectively Honeywell/Bendix) — was conducted in February 2008. Zimmerman and Honeywell/Bendix settled during trial. The jury returned a verdict in plaintiff's favor finding that Borg-Warner and ACL had manufactured, sold, or distributed a product not reasonably safe for its intended use, that Mark was exposed to the product, and
that such exposure was a substantial contributing cause of his development of mesothelioma. The jury awarded plaintiff $8,000,000 for pain and suffering, $2,000,000 for loss of consortium, $9,281,660 for loss of earnings, $2,030,544 for loss of services, and $3,000,000 for each of their three daughters for loss of parental care and guidance.
In their separate appeals, which we dispose of in this single opinion, Borg-Warner and ACL raise numerous issues.
Borg-Warner argues that the judge erred in his rulings on: (a) causation; (b) the admission of plaintiff's expert testimony; (c) Borg-Warner's claims against settling defendants; and (d) its motion for a remittitur. After careful review, we find no error in any of the judge's rulings.
Borg-Warner contends that the trial judge erred in denying its motion for judgment, arguing that plaintiff failed to prove sufficient exposure to its asbestos-containing clutches to warrant a finding of "medical causation"; that is, that its product was a "substantial factor" in causing Mark's mesothelioma. Borg-Warner also argues that the jury's determination of "medical causation" was "tainted" by the
judge's erroneous admission of the deposition of John Froning, the former manager of a GM production facility.
A motion for judgment may be made at the close of a plaintiff's case, Rule 4:37-2(b), at the close of all the evidence, Rule 4:40-1, and after the verdict, Rule 4:40-2(b). All three motions are governed by the same evidential standard: "`[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied . . . .'" Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)). We apply the same standard in reviewing a trial judge's ruling on such a motion. Estate of Roach, supra, 164 N.J. at 612.
In examining whether Borg-Warner was entitled to judgment, we must consider the evidence offered in support of plaintiff's claim, including, first, the extent of Mark's exposure to asbestos-related products.
(1)
Borg-Warner manufactured automotive parts, including disc type clutches, which were sold as a three-piece set that included a pressure plate, clutch disc and bearing. The clutch
facing consisted of a disc of friction material attached to a clutch pressure plate. It was undisputed that in the 1970's the friction material in Borg-Warner clutches was made of chrysotile asbestos, and that no warnings were contained on the product or its packaging.
A 1972 study conducted by Borg-Warner revealed that its clutch manufacturing operations generated levels of airborne asbestos fibers in excess of the governing OSHA standards.2 The study found that a "significant amount of the total asbestos exposures is coming from the loose fibers that are on the clutch facings." It also found that its "clutch-facing inspector," who was operating in a generally clean area, "received an exposure that is higher than most other employees' exposures." The report recommended that all employees working with clutch facings wear respirators, and that the plant install a "rigid housekeeping program," including installation of a ventilation system and the prompt disposal of scrap and sweepings.
From the early 1960's to the early 1980's, Borg-Warner was one of the original equipment manufacturer (OEM) suppliers of clutch products to GM; that is, it supplied clutches for installation on the assembly line in new production vehicles. Borg-Warner later "disposed of its clutch operation" and
destroyed its records relating to "its product sales to any General Motors facility in New Jersey."
However, Froning, the former manager of the clutch and manual transmission group at the GM power train division in Michigan, testified at depositions in an unrelated case,3 which were read to the jury here, that from the early 1960's to the mid-1980's Borg was GM's "prime" supplier of clutches, providing "virtually 100 percent" of the clutches installed in GM passenger cars and light trucks. Froning admitted his testimony was limited to clutches used in "new production," or OEM products, and that he did not know if GM used "different suppliers for clutch facings used in the aftermarket."
(2)
Mark Buttitta was born in December 1952. He worked as a "parts picker" at the GM distribution warehouses in Edgewater and Englewood during the summers of 1971 to 1973, and during his winter breaks while matriculating at Colgate University. As a summer employee, Mark was also responsible for sweeping the warehouse floor at the end of the shift. Mark worked with his father, who had been employed by GM since the 1940's. During
the summer of 1971, Mark also worked with Frank Buttitta, Jr. (Frank, Jr.), his brother.
In his de bene esse deposition, played for the jury at trial, Mark testified that as a "parts picker," he, along with fifty to seventy-five other employees, were responsible for filling orders for parts submitted to GM by automobile dealers. The picker would retrieve parts from open racks or bins located at various locations within the "very busy" warehouse and place them in a cart. Some parts were packaged in boxes and some were stored loose on shelves. If the parts were packaged in a box, the parts picker would open the box, check to make sure it contained the correct parts and the required quantity, and then either remove the part or reseal the box for transport to the shipping area. Brakes were packaged in boxes containing four units; to fill an order, a parts picker would often retrieve one set of brakes from a box.
Mark said that, on some days, he would pick as many as fifty brake shoes or pads and twenty-five clutch pads or assemblies. Frank Ripley (Ripley), who had worked with Frank, Jr. and Mark at the GM warehouse, confirmed that brakes and clutches, which then contained asbestos, were the most common products picked at the warehouse.
Mark, Frank, Jr., and Ripley described the warehouse as being very dusty, with thick layers of dust on the shelves,...
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