Millison v. E.I. du Pont de Nemours and Co.

• Decision Date: 22 July 1988
• Citation: 226 N.J.Super. 572,545 A.2d 213
• Parties: , 13 O.S.H. Cas. (BNA) 1885 William B. MILLISON, and Marie Millison, his wife; Vernon G. Kronmaier and Dorothy Kronmaier, his wife; Susan Schwebel, individually and as Executrix of the Estate of Harold Schwebel; Clarence Schwebel and Geraldine Schwebel, his wife; Frank Baptiste and Catherine Baptiste, his wife, and Edward B. Agar and Eileen Agar, his wife, Plaintiffs-Respondents, v. E.I. du PONT de NEMOURS AND COMPANY; William E. Neeld, Jr., M.D., and G.F. Reichwein, M.D., Defendants-Appellants, and Johns-Manville Corporation; Owens-Illinois, Inc.; Owens-Corning Fiberglas Corporation; Keene Corporation; Celotex Corporation; Raybestos-Manhattan Corporation; Sepco Corporation; Amatex Corporation; Philip Carey Company; United Asbestos and Rubber Company, a/k/a Unarco; Armstrong Contracting and Supply Corporation; ACands Industries, Inc.; Bird and Sons, Inc.; Eagle-Picher Industries, Inc.; Fiberboard Corporation; Fiberboard Corporation, Pabco Div.; Forty-Eight Insulations, Inc.; Childers Products Company; GAF Corporation; Pittsburgh Corning Corp.; H.K. Porter Company; Rock Wool Manufacturing Company; Philadelphia Asbestos Corporation, d/b/a Pacor, Inc.; Southern Asbestos Company; Delaware Insulation Company; Armstrong World Industries, Inc.; Garlock, Inc.; J.W. Roberts, Ltd., A Division of Turner & Newall, Ltd.; John Doe Corporations (1-47); Albinas Smulkstys, M.D.; John Doe(s), M.D., and Richard Roe, M.D., Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 572

226 N.J.Super. 572

545 A.2d 213, 13 O.S.H. Cas. (BNA) 1885

William B. MILLISON, and Marie Millison, his wife; Vernon G. Kronmaier and Dorothy Kronmaier, his wife; Susan Schwebel, individually and as Executrix of the Estate of Harold Schwebel; Clarence Schwebel and Geraldine Schwebel his wife; Frank Baptiste and Catherine Baptiste, his wife and Edward B. Agar and Eileen Agar, his wife, Plaintiffs-Respondents, v. E.I. du PONT de NEMOURS AND COMPANY; William E. Neeld, Jr M.D., and G.F. Reichwein, M.D., Defendants-Appellants and Johns-Manville Corporation; Owens-Illinois, Inc.; Owens-Corning Fiberglas Corporation; Keene Corporation; Celotex Corporation; Raybestos-Manhattan Corporation; Sepco Corporation; Amatex Corporation; Philip Carey Company; United Asbestos and Rubber Company, a/k/a Unarco; Armstrong Contracting and Supply Corporation; ACands Industries, Inc.; Bird and Sons, Inc.; Eagle-Picher Industries, Inc.; Fiberboard Corporation; Fiberboard Corporation, Pabco Div.; Forty-Eight Insulations, Inc.; Childers Products Company; GAF Corporation; Pittsburgh Corning Corp.; H.K. Porter Company; Rock Wool Manufacturing Company; Philadelphia Asbestos Corporation, d/b/a Pacor, Inc.; Southern Asbestos Company; Delaware Insulation Company; Armstrong World Industries, Inc.; Garlock, Inc.; J.W. Roberts, Ltd., A Division of Turner & Newall, Ltd.; John Doe Corporations (1-47); Albinas Smulkstys, M.D.; John Doe(s), M.D., and Richard Roe, M.D., Defendants.

Superior Court of New Jersey,

Appellate Division.

Argued May 31, 1988.

Decided July 22, 1988.

Thomas L. Morrissey, Newark, for defendants-appellants (Carpenter, Bennett & Morrissey, attorneys; Thomas L. Morrissey and Rosemary Alito, of counsel; Silvio J. DeCarli and Kevin P. Duffy, on the brief).

David Jacoby, Haddonfield, for plaintiffs-respondents (Tomar, Seliger, Simonoff, Adourian & O'Brien, attorneys; David Jacoby, Joshua M. Spielberg and Esther Berezofsky, on the brief).

Before Judges DREIER, BAIME and ASHBEY.

The opinion of the court was delivered by

ASHBEY, J.A.D.

This appeal arises out of a Law Division trial following a remand from the Supreme Court. See Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 501 A.2d 505 (1985). There the Court held that the New Jersey Workers' Compensation Act, N.J.S.A. 34:15-1 et seq, precluded plaintiffs from maintaining a separate tort action against their employer E.I. du Pont de Nemours and Co. (du Pont) and its physicians for failure to warn plaintiffs of the known risks of asbestos and their resulting asbestos-related medical conditions. The Court further held, however, that the exclusive remedy of N.J.S.A. 34:15-8 did not bar plaintiffs' tort claims for aggravation of those conditions, to the extent that such aggravation resulted from defendants' fraudulent concealment of them.

Following a five-week trial concerning those claims, a jury rendered verdicts in plaintiffs' favor; ¹ the jury awarded compensatory damages for the following asserted periods of concealment as follows:

The jury awarded punitive damages of $200,000 respecting each plaintiff employee. Total damages awarded were $1,382,500.

Defendants' motions for judgment n.o.v. or, alternatively, for a new trial, were denied. Defendants appeal from the ensuing judgment and from the denial of their motions, contending that the verdicts were unsupported by the evidence, and were the product of improper evidentiary admissions.

Plaintiffs are all past or present employees at two du Pont New Jersey plants, Chambers Works and Repauno. Each plant contained extensive piping which was insulated with asbestos-containing material. Millison, Agar, C. Schwebel and H. Schwebel worked as pipecoverers or "laggers," installing and removing pipe and tank insulation. Kronmaier and Baptiste were pipefitters. They installed, repaired and removed the underlying pipes. In so doing, they removed old insulation from pipes. Each plaintiff, therefore, worked with and around asbestos-containing material on a frequent basis during relevant time periods. Each plaintiff received annual or semi-annual physical examinations and chest x-rays from du Pont's doctors. Each received notices from these doctors describing the state of his health following these examinations. At relevant times defendant Dr. Neeld was the medical director at Chambers Works and defendant Dr. Reichwein was a plant doctor at Repauno.

Plaintiffs proffered three experts at trial. Dr. Joseph Wagoner, an expert in epidemiology and in the development of knowledge of asbestos-related diseases; Dr. Auerbach, an expert in asbestos-related disease, and Dr. Sokolowski, an expert in pulmonary medicine. Dr. Miller, an expert in radiology, and Dr. Epstein, an expert in pulmonology, were the only witnesses for defendants. All of the experts acknowledged that, judged by modern medical knowledge, plaintiffs' past x-rays demonstrated asbestos-related conditions. The most common symptom was thickening of the pleura, or membrane covering the surface of the lung. Plaintiffs' experts testified that evidence of pleural thickening (or pleural plaque if localized) in plaintiffs' x-rays at relevant times should have alerted defendant doctors to the presence of asbestos-related conditions and that continued exposure to asbestos aggravated the condition. Defendants' experts, on the other hand, said that evidence of pleural changes did not justify a diagnosis of an asbestos-related condition at relevant times. It was Miller's opinion that, although many radiologists knew in the 1950s that asbestos exposure caused interstitial lung disease, radiologists did not associate pleural plaque or thickening with asbestos exposure until 1977 and 1978. Defendant's experts further gave the opinion that, once an asbestos-related condition was incurred, deterioration was inevitable and not related to further exposure. That underlying difference of expert opinion was related to each plaintiff's particularized claim.

William Millison

William Millison was employed almost continuously at du Pont's Chambers Works plant from 1953 to the time of trial. Millison's 1974 du Pont x-rays demonstrated to the experts asbestos-related changes if judged by 1987 medical knowledge. He worked under further asbestos exposure between 1974 and 1979. Following each du Pont physical examination, he, in accord with undisputed du Pont procedure (applicable to all plaintiffs), received written notice that he suffered from no relevant medical problem and was fit for continued asbestos-related work.

In 1979, du Pont sent Millison's x-ray history to be read by outside radiologist specialists. ² Three months after these 1979 x-rays, du Pont scheduled Millison for additional x-rays at the request of the outside radiologist. Millison testified that this made him suspicious that du Pont was hiding something from him. He therefore consulted his own pulmonary specialist, Dr. Morowitz, who informed Millison that he had asbestosis and advised him not to work in any asbestos environment. At Neeld's request, Neeld and Millison met. When Millison told Neeld what Morowitz said, Neeld said that Millison did not have asbestosis because he did not have all the "symptoms." Neeld refused to recommend that Millison be removed from his work assignment so long as he used available protective equipment. Millison testified that when he asked for a transfer, Neeld said "If I do it for you, I've got to do it for everybody." Millison testified, "He told me that the company was going to take care of me. So when I asked him how they were going to take care of me, ... he said the company was going to pay my burial expenses." Neeld's August 13, 1979 letter identified Millison as having "benign asymptomatic abnormalities" based upon pleural thickening "as identified in May 1979." He there described Millison as a "lifetime ... lagger [who] had the probability of exposure to asbestos." [emphasis added]. ³

Frank Baptiste

Baptiste worked at du Pont's Repauno plant from 1951 until his retirement in 1980, but was not exposed to asbestos after 1972 or 1973. In May 1951, du Pont's Dr. Zahn (not a defendant) noted several abnormalities in Baptiste's pre-employment x-ray (enlarged hilus shadows on both lungs and increased parenchyma markings). According to du Pont records, Zahn did not find any active pathology and approved Baptiste as an employee. In 1976, defendant Reichwein's records described these abnormalities as "unchanged for several years." According to plaintiffs' experts, Baptiste's 1970 x-rays revealed asbestos-related disease.

In April 1979, Baptiste pulled a chest muscle and his family doctor (Dr. Valecchi) referred Baptiste to a pulmonary specialist, Dr. Joseph Sokolowski, who, in May 1979, found a "restrictive ventilatory defect, consistent with asbestos exposure." Baptiste testified that when he asked his supervisor, John Davis, why he wasn't told of his condition, Davis stated, "What the hell good would it do you?"

Edward Agar

Agar worked at the Chambers Works plant from 1961 to his retirement in 1985, save for a period in 1965. Agar's February 1975 x-ray showed pleural plaque and pleural thickening. He continued to be exposed to asbestos between 1975 and 1979. On February 15, 1979, defendant Neeld, in response to a request concerning whether Agar's medical record demonstrated any pulmonary problems, noted in Agar's medical records, "He has none." According to Neeld's records, he recommended however, an updated physical, because the last one was received in July 1977. Following receipt of Agar's April 3, 1979 x-ray analysis from Drs. Allen and Oglesby, his records were sent to the outside specialist, Dr. Egoville. Following June of 1979 x-ray analysis identifying calcifications as "consistent with changes which could be due to previous exposure to asbestos or other irritant materials," Neeld wrote in Agar's medical record that he told Agar that "we do not identify any ...