Kurak v. A.P. Green Refractories Co.

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: COBURN
• Citation: Kurak v. A.P. Green Refractories Co., 689 A.2d 757, 298 N.J.Super. 304 (N.J. Super. App. Div. 1997)
• Decision Date: 03 March 1997
• Parties: , Prod.Liab.Rep. (CCH) P 14,926 Charles KURAK and Priscilla Kurak, his wife, Plaintiffs-Respondents, v. A.P. GREEN REFRACTORIES COMPANY, Armstrong World Industries, Inc., the Anchor Packing Company, Babcock & Wilcox Company, Calon Insulation Corporation, Combustion Engineering, Cooper Industries, Inc., Eastern Steam Specialties, F.M. Rojek, Inc., Flexitallic, Inc., Foster Wheeler Corporation, Frick Company, GAF Corporation, Garlock, Inc., Ingersoll Rand Co., Kaiser Aluminum & Chemical Corp., Keene Corporation, Madsen & Howell, Inc., Norris Insulation, Inc., Pittsburgh Corning Corporation, Porter Hayden Company, Robert A. Keasbey Company, Rockwool Manufacturing Co., Roots Connersville, State Insulation Corporation, Turner & Newall, P.L.C., U.S. Gypsum Co., Worthington Corporation, and York Industries, Inc., Defendants, and Owens-Corning Fiberglas Corporation and Owens-Illinois, Inc., Defendants-Appellants.

Page 304

298 N.J.Super. 304

689 A.2d 757, Prod.Liab.Rep. (CCH) P 14,926

Charles KURAK and Priscilla Kurak, his wife, Plaintiffs-Respondents, v. A.P. GREEN REFRACTORIES COMPANY, Armstrong World Industries Inc., the Anchor Packing Company, Babcock & Wilcox Company Calon Insulation Corporation, Combustion Engineering, Cooper Industries, Inc., Eastern Steam Specialties, F.M. Rojek Inc., Flexitallic, Inc., Foster Wheeler Corporation, Frick Company, GAF Corporation, Garlock, Inc., Ingersoll Rand Co. Kaiser Aluminum & Chemical Corp., Keene Corporation, Madsen & Howell, Inc., Norris Insulation, Inc., Pittsburgh Corning Corporation, Porter Hayden Company, Robert A. Keasbey Company, Rockwool Manufacturing Co., Roots Connersville, State Insulation Corporation, Turner & Newall, P.L.C., U.S. Gypsum Co., Worthington Corporation, and York Industries, Inc., Defendants, and Owens-Corning Fiberglas Corporation and Owens-Illinois, Inc., Defendants-Appellants.

Superior Court of New Jersey, Appellate Division.

Argued Jan. 7, 1997.

Decided March 3, 1997.

Perry A. Gandelman for appellant Owens-Corning Fiberglas Corporation (Tucker, Biegel & Goldstein, attorneys; Frederick E. Blakelock, Cherry Hill, on the brief).

Thomas W. Ladd, Newark, for appellant Owens-Illinois, Inc. (McCarter & English, attorneys; Andrew T. Berry and John C. Garde, of counsel; Mr. Ladd, Mr. Garde and Cynthia C. Beagles, on the brief).

Patrick J. Bartels, E. Brunswick, for respondents (Garruto Cantor Trial Lawyers, attorneys: Jane B. Cantor and Mr. Bartels, of counsel; Mr. Bartels, on the brief).

Before Judges MICHELS, KLEINER and COBURN.

The opinion of the court was delivered by

COBURN, J.S.C. (temporarily assigned).

In separate appeals, which we have consolidated, defendants Owens-Corning Fiberglas Corporation (OCF) and Owens-Illinois, Inc. (OI) seek reversal of Law Division judgments, following a trial by jury, awarding plaintiffs Charles Kurak (plaintiff) and his wife, Priscilla Kurak, damages in this personal injury, products liability action.

The jury determined that plaintiff had contracted mesothelioma, a cancer of the lining of the lung which can only be caused by asbestos, as a result of exposure over forty-four years to asbestos-containing products in his workplace at E.R. Squibb and Sons, Inc. (Squibb). The jury assessed responsibility against defendants (including other named defendants who did not participate in the trial) in the following proportions: OCF (25%); OI (20%); Calon Insulation Corporation (15%); GAF Corporation (15%); Porter Hayden Company (10%); Robert A. Keasbey Company (7%); State Insulation Corporation (8%); and 0% as to Anchor Packing Company, Combustion Engineering, Garlock, Inc., Ingersoll Rand Co., Madsen & Howell, Inc., and U.S. Gypsum Co.

The jury determined plaintiff's total damages to be $1,500,000 and his wife's to be $800,000. The trial court molded the verdict to reflect judgments, with interest as of December 16, 1994, as follows: for plaintiff against OCF, $413,758.54, and against OI, $331,066.83; for plaintiff's wife on her derivative claims against OCF, $220,671.21, and against OI, $176,536.97.

The primary contention of both defendants is that the trial court erred in failing to grant their motions for directed verdicts and judgments notwithstanding the verdicts. Alternatively, they contend the court should have granted their motions for a new trial. Their appeals primarily focus upon claims of lack of product identification respecting the issue of proximate cause. In other words, each defendant contends that plaintiff failed to prove sufficient exposure to its asbestos-containing product to warrant a finding that its product was a medical cause of plaintiff's mesothelioma. They also contend the trial court committed errors relating solely to the issue of damages which resulted in inflated and excessive monetary awards. We agree that there was insufficient evidence against defendant Owens-Illinois, Inc., and that it was entitled to judgment. The jury's finding of liability as to Owens-Corning Fiberglas Corporation, on the other hand, was supported by the evidence. However, the trial court committed reversible error on an issue relating to damages. Consequently, for the reasons stated in section IV, infra, plaintiffs will have to decide whether to have a new trial on damages with OCF's percentage of fault set at the twenty-five percent adjudicated in this trial, or a new trial on liability and damages.

I

Plaintiff began working for Squibb in 1944 when he was eighteen years old. After forty-four years as a laboratory technician at the Squibb plant in New Brunswick, New Jersey, he retired in 1988 at age sixty-two. Four years later, his physician told him he had contracted mesothelioma, an invariably fatal disease. The parties stipulated that the average life expectancy for a person who has been diagnosed with mesothelioma is six months to two years, although some people have lived as long as eight years.

When plaintiff began working for Squibb at its ninety-six acre New Brunswick site, the plant consisted of about thirty buildings. At his retirement, there were around thirty to forty buildings. During the forty-four years, some buildings were razed to be replaced by new installations.

Plaintiff's work primarily took place in various buildings over the years in laboratory rooms which were about forty feet long and fifteen to twenty feet wide. He first worked in building 80-84 for about eleven years from 1944 until about 1955. Then he spent about seven years in building 70. Around 1962 he moved to building 54; and around 1966 he moved to a new building, number 102, where he stayed until around 1972. From then until his retirement in 1988, he was assigned to the environmental control department, working first for a month in building 78 and then primarily out of building 101, the "Institute", for about three years, and then out of building 92, a new building. As part of this last job, he would regularly, mostly on a monthly basis, enter and work in buildings 89, 90, 91, 105, 107, and 109. He would occasionally spend time in buildings 62, 82, 83, 85, 124. In summary, he spent substantial periods of time working in buildings 80-84 (eleven years), 70 (seven years), 54 (four years), 102 (six years), 78 (one month), 101 (three years) and 92 (thirteen years).

According to plaintiff, all the buildings in which he worked were warmed by forced air heaters which were fed steam from visible, insulated pipes. The insulation was "whitish-gray." It was almost uniformly "deteriorating, cracking, crumbling, peeling and flaking" in every room in which he worked. Generally, he worked for substantial periods of time within six to twenty feet of the "hot" pipes and the fans which circulated the hot air. He frequently observed dust on the pipes and noticed that the fans blew that dust out into the workplace. When he worked in building 78 for a month in 1972 with a machine known as an "autoclave," a device for "sterilizing media ... or contaminated glassware or equipment," which was about four feet by six feet, he noted that it was covered with whitish-gray insulation which would dislodge when he brushed against it. He described the pipes in buildings 89, 90, and 91 as "covered with dust." In the early 1950's, sometime before 1953, he saw pipefitters working in building 80-84. Their work caused "whitish gray" debris, an insulating material not specifically described as containing asbestos, to fall all around the plaintiff for about a minute until he walked away. That is the only occasion on which plaintiff said he was covered with a dusty material which might have been asbestos.

According to plaintiff's expert witnesses, whose testimony was uncontradicted, plaintiff contracted mesothelioma as a result of his exposure to asbestos during his forty-four year employment at Squibb. They also indicated that unlike asbestosis or cancer of the lung caused by asbestos, mesothelioma, a cancer of the lining of the lung, can be caused by relatively small exposures to asbestos, but that all exposures to asbestos contributed to the disease process. This brings us to the testimony bearing upon the critical liability issue. For even assuming asbestos caused plaintiff's fatal illness, a point no longer at issue in this case, to recover damages he must still prove the source of that asbestos was the asbestos-containing product of a particular defendant. In that regard, we must carefully consider the testimony in relation to plaintiff's work history.

OI began manufacturing Kaylo, an asbestos-containing hot pipe insulating cover, and asbestos block, sheets of insulating material, in 1948. In 1953, OCF became the exclusive distributor of these materials for OI. In 1958, OCF purchased the business from OI and continued to use the brand name "Kaylo." In 1972, OCF stopped manufacturing these materials.

On the issue of product identification plaintiff relied primarily on the testimony of four witnesses: Frank Abode (so described at trial, but referred to by the parties in their briefs as Frank Abate), Frank Montzi, John Horvath, and Michael Furchak.

Abode came to work at Squibb as a painter in 1945. From 1957 to 1981 he was the supervisor of the painting and insulation department. According to him, about half the hot pipe insulation used by his staff was Kaylo, at least after 1962. He also said one of the painters' jobs was painting the asbestos-containing block and pipecovering. Other witnesses indicated that Squibb had a crew of about eight insulators whose primary job was the installation and repair of insulating material on a daily basis. However, major insulation jobs were performed by outside contractors.

Montzi worked as an insulator at Squibb from 1969 to 1988. When he started at Squibb, he "mostly used" Kaylo tubes for hot pipes, he worked all over the plant doing "quite a bit" of pipe insulation repair, and he put Kaylo in...