Fowler v. Akzo Nobel Chems., Inc.
| Decision Date | 30 June 2022 |
| Docket Number | A-5 September Term 2021,085939 |
| Citation | 251 N.J. 300,276 A.3d 1146 |
| Parties | Thomasenia L. FOWLER, as Administrator and Administrator ad Prosequendum of the Estate of Willis Edenfield, Plaintiff-Appellant, 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, and Union Carbide Corporation, Defendant-Respondent. |
| Court | New Jersey Supreme Court |
Amber R. Long argued the cause for appellant (Levy Konigsberg, attorneys; Amber R. Long on the briefs).
Michael A. Scodro, of the Illinois bar, admitted pro hac vice, argued the cause for respondent (Caruso Smith Picini and Mayer Brown, attorneys; Richard D. Picini, Fairfield, Michael A. Scodro, and Craig Woods, of the Illinois bar, admitted pro hac vice, of counsel and on the briefs).
Jared M. Placitella argued the cause for amicus curiae the New Jersey Association for Justice (Cohen, Placitella & Roth, attorneys; Jared M. Placitella and Christopher M. Placitella, of counsel and on the brief).
Scott A. Rader submitted a brief on behalf of amicus curiae the Coalition for Litigation Justice, Inc. (Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, attorneys; Scott A. Rader, of counsel and on the brief).
Philip S. Goldberg submitted a brief on behalf of amici curiae the Chamber of Commerce of the United States of America and the New Jersey Civil Justice Institute (Shook, Hardy & Bacon, attorneys; Philip S. Goldberg, Mark A. Behrens, of the Virginia and District of Columbia bars, admitted pro hac vice, and Cary Silverman, of the Maryland and District of Columbia bars, admitted pro hac vice, on the brief).
Willis Edenfield died from mesothelioma
due to exposure to asbestos in a manufacturing plant, where he worked for approximately forty years. Plaintiff, the administrator of Edenfield's estate, filed a failure-to-warn product liability action against Union Carbide, a manufacturer and supplier of asbestos that Edenfield handled in the workplace.
The trial court charged the jury that, to fulfill its duty to Edenfield, Union Carbide had to place adequate warnings on its asbestos bags and provide warnings and information about the dangers of its products to the employer to be transmitted to Edenfield. The failure to provide adequate warnings through either means, the court instructed, would constitute a breach of Union Carbide's duty to warn.
The court also advised the jury that plaintiff had to prove that Union Carbide's inadequate warnings, if any, were the proximate cause of the harm caused to Edenfield -- that the inadequate warnings were "a substantial factor" in causing Edenfield's death and that his exposure to its asbestos was not "casual or minimal," nor "a remote or trivial cause" of his contracting mesothelioma
.
A jury found that Union Carbide breached its duty to warn and was liable in causing Edenfield's disease and death. The jury determined that Union Carbide placed inadequate warnings on the asbestos bags handled by Edenfield. The jury also determined that the inadequate product warnings were the proximate cause of Edenfield's death and awarded his estate substantial damages. The jury did not find that Union Carbide failed to take reasonable steps to ensure that adequate warnings reached Edenfield through his employer.
The Appellate Division concluded that the trial court erred in two ways. First, it failed to instruct the jury that Union Carbide could discharge its duty to warn by taking reasonable measures to inform Edenfield of the dangers of asbestos through his employer. Second, it did not advise the jury in the precise language of Sholtis v. American Cyanamid Co. -- that plaintiff had to demonstrate medical causation by establishing that Edenfield was exposed to Union Carbide's products with sufficient "frequency, regularity and proximity," quoting 238 N.J. Super. 8, 28-29, 568 A.2d 1196 (App. Div. 1989). Accordingly, the Appellate Division vacated the verdict and remanded for a new trial.
We now reverse. In cases involving the use of asbestos in the workplace, we have held that an asbestos manufacturer or supplier has a dual duty to provide adequate warnings of the risks of the product to both the employee and the employer. See Coffman v. Keene Corp., 133 N.J. 581, 606-08, 628 A.2d 710 (1993) ; Theer v. Philip Carey Co., 133 N.J. 610, 620-21, 628 A.2d 724 (1993) (). That approach enhances workplace safety by giving workers the means to protect themselves when faced with exposure to a potentially deadly substance such as asbestos -- a known cause of mesothelioma
, which has killed 45,221 people between 1999 and 2015.
Union Carbide knew that asbestos exposure causes cancer
. Placing adequate warnings on asbestos bags was clearly feasible, yet Union Carbide chose not to do so. Union Carbide therefore deprived Edenfield of critical information -- information that would have allowed him to make vital decisions concerning his life and health. A properly warned worker can undertake protective measures to minimize the risk of exposure or decide not to continue employment in a job handling toxic substances. Adequate warnings provide workers with a choice. Adequate warnings promote worker safety; inadequate warnings can endanger a worker's life.
In light of our common law jurisprudence, and for overarching public policy reasons, we hold that an asbestos manufacturer or supplier that places inadequate warnings on asbestos bags used in the workplace has breached its duty to the worker, regardless of whether it provides the employer with the correct information, which is reasonably intended to reach its employees.
We also find that the trial court's modified Model Jury Charge on proximate cause -- even though it did not parrot the language in Sholtis -- sufficiently guided the jury in determining medical causation. First, Sholtis cautioned that whether exposure to asbestos constitutes "a substantial factor" in causing mesothelioma
does not depend on "catch words" but on whether the legal concepts were thoroughly conveyed to the jury. See 238 N.J. Super. at 29, 568 A.2d 1196. Second, a rigid application of the Sholtis "frequency, regularity, and proximity" test would not have accounted for the conflicting medical opinions in this case. Medical testimony was presented that even slight exposure to asbestos can cause mesothelioma. The trial court properly instructed the jury that Edenfield's exposure to Union Carbide's products, which allegedly caused his mesothelioma, could not be a "remote or trivial cause" or based on "minimal contact" or "mere guesswork."
Accordingly, we reinstate the jury's verdict and award of damages. We refer the matter to the Supreme Court Committee on Model Civil Jury Charges to review the current instructions on proximate cause in asbestos cases.
On June 27, 2011, Thomasenia Fowler -- as administrator of her husband Willis Edenfield's estate -- initiated a wrongful death/product liability action against Union Carbide.1 The case was tried before a jury between December 3, 2018, and January 22, 2019. The record before us is based on the testimony elicited and the exhibits admitted at trial.
Between 1954 and 1994, Edenfield worked at a plant that manufactured adhesive products in Bloomfield, New Jersey.2 During those years, three different companies operated and manufactured the same products at the Bloomfield Plant (the Plant): Rubber & Asbestos Corp., from 1954 to 1962; PPG Industries Inc., from 1962 to 1971; and National Starch and Chemical Co., from 1971 to 1994.
Rodney Dover, who worked with Edenfield for twenty-six years, testified to the tasks performed by Edenfield and the workplace environment at the Plant.3 Edenfield worked in a small room, approximately twenty feet by twenty feet, known as the batching area. He would go to the warehouse and bring raw ingredients, including small asbestos bags, back to the room. There, Edenfield opened the bags, poured out the ingredients, weighed them, and placed them into containers, which were shipped to other parts of the Plant for further processing.
Between 1969 and 1984, Union Carbide shipped fifty-six thousand pounds of its Calidria brand asbestos -- packaged in ten- and forty-pound bags -- to the Bloomfield Plant.4 Johns Manville also supplied the Plant with larger asbestos bags, weighing from 150 to 200 pounds. Dover recalled that Edenfield worked with the smaller asbestos bags, presumably those provided by Union Carbide.
Dover expressed concern about dust inhalation to his supervisor, stating that the workers needed more ventilation. Although the Bloomfield Plant provided respirators, no one from the company advised the workers when to use them. According to Dover, the companies operating the Plant did not host safety meetings or issue written warnings to inform the employees of the hazards posed by their work environment. The companies never arranged for Dover to undergo a physical examination by a doctor or nurse hired by the Plant. Although the Plant's records indicate that the levels of asbestos in the air were monitored in the years 1977, 1982, 1991, and 1992, Dover did not remember the company ever taking air samples.
The Warnings
In 1968, Union Carbide began placing a warning on its Calidria asbestos bags. The labeling on the bags stated: "WARNING: BREATHING DUST MAY BE HARMFUL DO NOT BREATHE DUST." However, an asbestos toxicology report in 1964, revised in 1969, authored by physicians in Union Carbide's Industrial Medicine and Toxicology...
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