Fowler v. Akzo Nobel Chems., Inc.
| Decision Date | 26 May 2021 |
| Docket Number | DOCKET NO. A-4007-18 |
| Parties | THOMASENIA L. FOWLER, as Administrator and Administrator ad Prosequendum of the Estate of Willis Edenfield, Plaintiff-Respondent, v. AKZO NOBEL CHEMICALS, INC. as successor to Imperial Chemical Industries PLC, and National Starch and Chemical Co. (Discovery Only), CORN PRODUCTS INTERNATIONAL, INC., as successor to National Starch and Chemical Co. (Discovery Only), HENKEL CORPORATION, individually and as successor-in-interest to the Adhesive and Electronics Division of National Standard Chemical Co. (Discovery Only), and NATIONAL STARCH, LLC, individually and as successor to National Starch and Chemical Co. (Discovery Only), Defendants-Respondents, and UNION CARBIDE CORPORATION, Defendant-Appellant |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Fuentes, Whipple and Rose.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4820-11.
Michael A. Scodro, (Mayer Brown, LLP) of the Illinois bar, admitted pro hac vice, argued the cause for appellant (Caruso Smith Picini, PC, Michael A. Scodro, Craig Woods (Mayer Brown, LLP) of the Illinois bar, admitted pro hac vice, and Brett E. Legner (Mayer Brown, LLP) of the Illinois bar, admitted pro hac vice, attorneys; Richard D. Picini, Michael A. Scodro, Craig Woods and Brett E. Legner, on the of counsel and on the briefs).
Amber Long argued the cause for respondent (Levy Konigsberg, LLP, attorneys; Amber Long and Madeleine Skaller, on the brief).
Defendant Union Carbide Corporation appeals from an April 18, 2019 renewed motion for judgment notwithstanding the verdict, or in the alternative, for a new trial, pursuant to Rules 4:40 and 4:49-1(a) after a jury trial in an asbestos exposure case. Plaintiff, Thomasenia Fowler, is the widow of decedent, Willis Edenfield, who died from mesothelioma. We are constrainedto reverse for erroneous jury instructions, one regarding defendant's duty to warn, and one regarding medical causation.
On June 27, 2011, plaintiff filed suit as personal representative, administrator, and administrator ad prosequendum of Edenfield's estate, alleging strict liability and negligent failure-to-warn claims against Union Carbide, along with claims against Edenfield's previous employers. In 2015, the trial court granted summary judgment in favor of Union Carbide and dismissed the complaint with prejudice.
Then, in Fowler v. Akzo Nobel Chemicals, Inc., No. A-2300-15 (App. Div. May 17, 2017) (slip op. at 4-8), we reversed the trial court's entry of summary judgment because the record demonstrated the evidence was sufficient to create a genuine issue of material fact as to whether Edenfield was exposed to Union Carbide's asbestos frequently, regularly, and proximately. The case thereafter proceeded to trial.
We draw the following facts from the trial record. Edenfield worked at the Bloomfield Plant (the Plant) between 1954 and 1994. The Plant was operated over time by Rubber and Asbestos Corporation from 1954 to 1962, PPG Industries, Inc. from 1962 to 1971, and National Starch and Chemical Co.(National Starch) from 1971 to 1995 (the employers). These companies used asbestos in the manufacturing of adhesive products. Edenfield worked in the "mill room" as a batcher, weighing and preparing dry ingredients for manufacturing.
Between 1969 and 1984, Union Carbide delivered approximately 56,000 pounds of Calidria-brand asbestos in the form of a fine, white powder to the Plant. Union Carbide mined its asbestos from a mineral deposit in New Idria, California, that contained short-fiber chrysotile asbestos. It shipped the asbestos in ten- and forty-pound bags, with most shipments in the smaller bags. Usage records at the Plant detailed the daily amount of each type of asbestos used between 1976 and 1985. Specifically, Union Carbide's asbestos was regularly used in the manufacturing of adhesive products.
Testimony regarding Edenfield's work history came from his co-worker, Rodney Dover, who worked with Edenfield for twenty-six years. According to Dover, Edenfield's job was to weigh and measure dry ingredients, including raw asbestos, and place them in bags for use in the Plant's manufacturing process. Dover testified that the "batching area" of the mill room was a twenty-foot by twenty-foot space. Dover and other batchers typically used larger bags of ingredients, some of which weighed approximately 150 or 200pounds. Edenfield was the only batcher who worked with bags of ingredients between ten and forty pounds.
All batchers worked during the same day shift and prepared all ingredients during that shift. After weighing and preparing all the dry, raw ingredients, the batchers took them to either the mill room or the "churn room," located in another building. In the churn room, workers made epoxy resins in churns or vats, using Calidria asbestos as a thickening agent. In contrast, the mill room did not contain vats or tanks, but allowed workers to mix chemicals using rollers.
Dover explained both the process that Edenfield and other batchers followed to obtain the dry, raw ingredients they used and where they took them. Most ingredients were obtained from the onsite warehouse and brought to the mill room. The ingredients stored in the warehouse were kept on pallets, and batchers would move them using a forklift, but they carried the smaller bags by hand. Edenfield was not involved in the process of moving materials with the forklift. Workers in both the churn and mill rooms worked twenty to thirty feet away from each other. Dover testified that the air "was basically clear" in the mill room because the Plant contained exhaust fans, which would evacuate the dust and other airborne materials to the outside environment.Even so, Dover sometimes saw dust in the air. The batchers also swept up powder spills at the end of each day.
He also did not recall the company names of any particular asbestos suppliers at the Plant other than Johns Manville, which delivered its asbestos in 150- or 200-pound bags and was likely handled by batchers other than Edenfield. Different from Union Carbide, Johns Manville mined its chrysotile asbestos from the Jeffrey Mine in Canada and, according to one of Union Carbide's experts, the asbestos from the Jeffrey Mine was contaminated with tremolite.
At trial, William Dyson, Ph.D., testified on behalf of Union Carbide as an expert in the fields of industrial hygiene, exposure assessments, risk assessments, and Occupational Safety and Health Act1 (OSHA) requirements. Dyson testified the Plant employees used Calidria in the processes in the churn room and "paper coating" room, neither of which was the area where Edenfield worked. Dyson estimated that between seventy-five and ninety percent of the asbestos used at the Plant was supplied by companies other than Union Carbide. Dyson further opined there was no evidence that Edenfield eitherworked with, or was exposed to, Calidria asbestos. He came to this conclusion because none of Edenfield's co-workers testified that the Plant used Calidria asbestos, nor had they observed Edenfield using Calidria asbestos, and the Plant used Calidria asbestos only in the churn room, which was located in a separate building from the one where Edenfield worked.
The record reveals a timeline of actions Union Carbide took to address the safety of its products. In 1968, Union Carbide began placing a warning on the bags of Calidria asbestos that it sold, which stated: Then, in 1972, Union Carbide changed the warning to the following in order to comply with OSHA requirements:
Union Carbide took other steps to warn customers of the dangers of asbestos, as well. In 1975, it sent Calidria customers a Material Safety Data Sheet (MSDS) outlining the chemical properties of its asbestos and safety information. In 1977, it sent customers an updated MSDS, along with several pamphlets pertaining to asbestos safety, and encouraged employers to transmit the information to employees. Both MSDSs recommended that employeesworking with Calidria asbestos wear protective clothing, avoid inhalation of dust, provide local exhaust for every operation, remove spilled material by vacuum or water, carefully launder personal clothing to avoid airborne exposure to asbestos, and undergo an annual comprehensive medical examination, among other measures. The pamphlets also recommended numerous precautions such as wearing respirators, and warned that exposure to asbestos fibers could increase the risks of developing mesothelioma, asbestosis, lung cancer, and cancer of the digestive tract.
In 1981, Union Carbide sent its customers information from the Asbestos Information Association/North America, regarding best practices for handling asbestos and possible health implications, along with OSHA regulations. Union Carbide also sent employers OSHA-recommended posters that instructed employees to use respirators, vacuum-clean spills, leave dusty clothes at their places of employment, repair broken bags, and report unsafe conditions to their employers. It is unclear from the record when Union Carbide sent the posters to Edenfield's workplace.
At the same time, beginning no later than 1972, Union Carbide offered to perform air monitoring testing for asbestos dust to its customers or, if they preferred, to offer training and equipment in order to perform the testingthemselves. The record contains a January 19, 1972 letter from a Union Carbide manager to a National Starch employee, memorializing...
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