Thomasenia L. Fowler v. Akzo Nobel Chemicals, Inc. (085939) (Middlesex County & Statewide) ( 2022 )

SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office
of the Clerk for the convenience of the reader. It has been neither reviewed nor
approved by the Court. In the interest of brevity, portions of an opinion may not
have been summarized.
Thomasenia L. Fowler v. Akzo Nobel Chemicals, Inc. (A-5-21) (085939)
Argued January 19, 2022 -- Decided June 30, 2022
ALBIN, J., writing for the Court.
In this appeal, the Court considers whether a manufacturer or supplier that
puts inadequate warnings on its asbestos products used in the workplace can fulfill
its duty to warn by disseminating adequate information to the employer with the
intention that such information will reach the workers using those products. The
Court also considers whether, in charging on medical causation in this mesothelioma
case, the trial court was required to give the frequency, regularity, and proximity
language in Sholtis v. American Cyanamid Co., 238 N.J. Super. 8, 28-29 (App. Div.
1989), rather than the substantial factor test in the Model Civil Charge, as modified
by the court.
In June 2011, Thomasenia Fowler -- as administrator of her husband Willis
Edenfield’s estate -- initiated a wrongful death/product liability action against Union
Carbide, a manufacturer and supplier of asbestos that Edenfield handled as a daily
part of his 40-year job at an adhesive manufacturing plant (the Bloomfield Plant).
In 1968, Union Carbide began placing a warning on its asbestos bags. In
compliance with an emergency standard imposed by the Occupational Safety and
Health Administration, the company changed the warning in 1972 to state:
“CAUTION Contains Asbestos Fibers Avoid Creating Dust Breathing Asbestos Dust
May Cause Serious Bodily Harm.” National government organizations had
recommended upgraded warnings, as did an association to which one of the doctors
from Union Carbide’s medical department belonged. An in-house staff-member of
Union Carbide also notified the company that its warning inadequately addressed the
lethal dangers of asbestos exposure. Union Carbide declined to upgrade its label.
Union Carbide presented evidence that it periodically provided information
and various safety warnings about its asbestos products to Edenfield’s employers
and requested that the information and warnings be made available to the employees.
Over a course of years, Union Carbide forwarded to its “Calidria” customers such
items. In its Appellate Division brief, Union Carbide highlighted that the Plant’s
1
operators declined its offer “to monitor the Plant’s air quality” and “to disseminate
the warnings” to employees.
At trial, each side presented differing opinions about the nature of the danger
posed by Calidria asbestos and the degree of exposure necessary to cause
mesothelioma. Plaintiff’s expert testified that the greater the exposure to asbestos,
the greater the likelihood of contracting mesothelioma -- but emphasized that even
“short exposures to asbestos cause mesothelioma.” She concluded that Edenfield’s
exposure to Union Carbide’s asbestos was a substantial factor in his contracting the
deadly disease. Union Carbide presented the testimony of three experts who
generally agreed that Edenfield’s exposure to the asbestos was not of a high enough
dose to be a substantial factor.
The trial court instructed the jury. As to the duty to warn, the court made
clear that Union Carbide could be held liable either for failing to place adequate
warnings on its Calidria asbestos bags or failing to disseminate adequate warnings
and information to the Bloomfield Plant intended for its employees. Union Carbide
objected to those instructions, arguing that the jury could find that, even if the
warnings on the asbestos bags were inadequate, Union Carbide was not liable if it
provided the employer warnings and information “with the intention or purpose that
the employer alert employees to the dangers of the product and the proper methods
of mitigating the” associated risks.
As to medical causation, the court instructed that the jury would have to find
that “the failure to warn [was] a substantial factor which singly, or in combination
with another cause, brought about the injury.” The court stressed that liability
should not attach based on casual or minimal contact with the product and should
not be imposed on mere guesswork. The trial court rejected Union Carbide’s
proposed charge on medical causation, which would have required plaintiff to
“prove that Mr. Edenfield was exposed to [Union Carbide’s] product with sufficient
frequency, with a regularity of contact, and with the product in close enough
proximity to show that the exposure . . . was a substantial contributing factor to Mr.
Edenfield’s mesothelioma.” (emphasis added).
The jury found for plaintiff, concluding that (1) Union Carbide failed to
provide adequate warnings or instructions on its product (the asbestos bags), (2) the
failure to do so was a proximate cause of Edenfield’s exposure to Union Carbide’s
asbestos, and (3) that exposure was a substantial factor in causing his mesothelioma.
The jury also determined that plaintiff did not prove that Union Carbide failed to
take reasonable steps to ensure that the warnings it gave to Edenfield’s employers
reached Edenfield -- a finding that did not affect the verdict in light of the dual
warning instruction.
2
The Appellate Division reversed, finding that, “in appropriate circumstances,
the manufacturer may discharge this duty . . . by conveying the warnings to the
employer and relying on the employer to convey them to the employee.” On the
second issue, the Appellate Division asserted that the trial court erred in not
charging the jury on the “frequency, regularity, and proximity” test set forth in
Sholtis, 238 N.J. Super. at 28-29, and later adopted in James v. Bessemer Processing
Co., 155 N.J. 279 (1998). The Court granted certification, 248 N.J. 409 (2021).
HELD: As to the duty to warn, 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. As to medical
causation, the trial court’s modified Model Jury Charge on proximate cause
sufficiently guided the jury.
1. Under New Jersey common law, a product that is shipped to a workplace without
adequate warnings about the product’s inherent dangers is a defective product. In
this strict-liability failure-to-warn action, plaintiff had to prove that (1) without
adequate warnings, use of Union Carbide’s asbestos bags by workers, such as
Edenfield, was dangerous -- a product defect; (2) Union Carbide forwarded the
asbestos bags to the Bloomfield Plant without adequate warnings -- in a defective
condition; and (3) the inadequate warnings proximately caused Edenfield to contract
mesothelioma. The third factor requires proof of two different forms of causation:
product-defect causation and medical causation. For product-defect causation, the
plaintiff must show that the defect in the product -- the lack of warnings or adequate
warnings -- was a proximate cause of the asbestos-related injury. For medical
causation, the plaintiff must show that the injury was proximately caused by
exposure to defendant’s asbestos product. The first issue in this case is whether the
trial court properly charged the jury that if the warnings on the asbestos bags were
inadequate, Union Carbide could not escape liability by giving Edenfield’s
employers proper warnings. (pp. 29-31)
2. New Jersey jurisprudence establishes that an asbestos manufacturer or supplier
has a duty to provide adequate warnings to both the employee directly and the
employer. The Court stated in Coffman v. Keene Corp., “we reasonably assume that
a manufacturer or supplier, consistent with its own duty, will provide an adequate
warning of its unsafe product to employers as well as employees,” and it repeatedly
referred to both employers and employees throughout the opinion. See 133 N.J. 581,
607-09 (1993) (emphasis added). The importance of placing adequate warnings on
the product itself, when feasible, is informed by the fact that some employers may
not provide critical health warnings and information to their workforce. Dual
warnings -- possibly redundant warnings -- are warranted because workers “exposed
to a defective product” without adequate warnings are deprived of the ability “to
3
exercise [a] meaningful choice with respect to confronting the risk of injury posed
by the product.” See id. at 605. In Theer v. Philip Carey Co., the Court stressed
“that employers have an independent duty to provide a safe workplace for their
employees, and that a manufacturer or supplier of a product intended for use in the
workplace is under a concurrent duty to warn employers, as well as employees,
concerning . . . safety risks.” 133 N.J. 610, 620-21 (1993). (pp. 32-34)
3. In cases involving asbestos products in a workplace setting, the Court has hewed
to the concurrent duty to warn where placing a warning on the product itself is
feasible. In light of the deadly dangers posed by asbestos in the workplace, Coffman
and Theer imposed a special duty on manufacturers and suppliers of asbestos -- the
concurrent duty to warn not only the employee but also the employer. This case
illustrates the importance of the dual-warning doctrine. Union Carbide was aware
that the warnings on its asbestos bags understated the health risks to workers, yet
there was no mention in the warnings that inhaling asbestos fibers may cause lung
cancer. And not only did Union Carbide provide inadequate label warnings on its
products, but as even Union Carbide conceded in its Appellate Division brief, the
Bloomfield Plant’s operators did not “disseminate the [manufacturer’s] warnings or
instructions to Plant employees.” Common law jurisprudence governed the
environmental torts in Coffman and Theer, where inadequate warnings rendered the
products defective. The case on which Union Carbide relies as charting a different
path -- Grier v. Cochran Western Corp., 308 N.J. Super. 308 (App. Div. 1998) -- is a
non-asbestos case that is governed by statute and involves a sophisticated piece of
machinery. Different products may require different approaches. Instructive label
warnings may be more efficacious and feasible in dealing with certain toxic
substances than sophisticated pieces of machinery. Although information
disseminated by the employer may always be important, in the case of sophisticated
machinery supervisory training may be an especially significant component in
reducing safety hazards, as suggested by Grier. The Court does not suggest a one-
size-fits-all approach, but, in this asbestos case, it stands by the directives given in
Coffman and Theer that the manufacturer had a duty to provide concurrent warnings
both to the employee, through product labeling, and to the employer with the
intention that the necessary safety information would be disseminated to the
workforce. The Court therefore concludes that the trial court properly charged the
jury on product defect. (pp. 34-43)
4. The Court next considers whether the trial court correctly charged the jury on
medical causation. In this asbestos exposure case, in addition to instructing the jury
in accordance with the Model Jury Charge on “substantial factor,” the court charged
the jury with language adapted to asbestos exposure cases. Union Carbide claims
that the trial court strayed from the “frequency, regularity, and proximity test” set
forth in Sholtis and adopted in James. However, the Sholtis test is adaptable to
varying scenarios and should not be rigidly and inflexibly applied. In James, the
4
Court explained in applying the Sholtis test that plaintiffs seeking to prove causation
in toxic-tort litigation face “extraordinary and unique burdens” that are “more subtle
and sophisticated than proof [burdens] in cases concerned with more traditional
torts.” 155 N.J. at 299. Courts have recognized that, in cases involving asbestos-
exposure that allegedly caused mesothelioma, the frequency, regularity and
proximity test is not a rigid test with an absolute threshold level necessary to support
a jury verdict, but rather an articulation of what constitutes a substantial factor for
purposes of determining proximate cause in an occupational exposure setting. Thus,
when a plaintiff has presented competent and credible evidence that even a minimal
number of asbestos fibers can cause mesothelioma, then a jury may conclude the
fibers were a substantial factor in causing a plaintiff’s injury. (pp. 43-48)
5. Here, plaintiff’s expert emphasized that even “short exposures to asbestos cause
mesothelioma.” In addition, she expressed that Edenfield’s exposure to Union
Carbide’s Calidria asbestos was a daily occupational hazard over many years and
“[was] significant enough to substantially contribute to his mesothelioma.” In the end,
it was for the jury to determine whether to accept that expert opinion or the opposing
opinions of the defense experts. The trial court here properly tailored the charge to the
evidence because neither plaintiff’s nor Union Carbide’s experts agreed on the level of
exposure to Union Carbide’s asbestos necessary to cause Edenfield’s mesothelioma.
(pp. 48-49)
6. The Court rejects the position that there can be one standard used by the trial court
in deciding summary judgment and another standard used in instructing the jury. The
substantive law governing the summary judgment motion is the same law that guides
the jury in making its ultimate determination. The Court concludes that the trial court
correctly charged the jury on the core concepts underlying medical causation in this
case, and it refers consideration of whether there is a need to modify the Model Charge
on proximate cause and substantial factor in the toxic tort setting to the Supreme Court
Committee on Model Civil Jury Charges. (pp. 49-50)
REVERSED. The jury’s verdict is REINSTATED and the matter is
remanded to the trial court.
JUSTICE SOLOMON joins the majority opinion on the issue of medical
causation, agreeing that a trial court’s failure to use the specific language from
Sholtis when instructing the jury on medical causation will not always lead to
reversal where the trial court adequately explains the standard to the jury. Justice
Solomon joins the dissent as to the issue of adequate warnings, writing that,
consistent with Coffman and Theer, a manufacturer could discharge its duty to warn
by conveying adequate warnings and information to employers for distribution to
employees.
5
JUSTICE PATTERSON, dissenting, expresses the view that the trial court
ran afoul of Coffman and Theer when it charged the jury that Union Carbide could
not discharge its duty to warn by conveying adequate warnings and information to
the employers for distribution to employees. Justice Patterson adds that the court
compounded that error by directing the jury to consider only the warnings on
asbestos bags when it answered the sole question on the verdict sheet about the
adequacy of Union Carbide’s warnings. In Justice Patterson’s view, the majority
replaces the fair and workable failure-to-warn standard for workplace exposure cases
set forth in Coffman and Theer with a confusing and unrealistic test that precludes a
finding that the manufacturer has met its duty to warn unless warnings on asbestos
bags, if feasible, were adequate. Justice Patterson also finds that the majority’s
holding on the core question of causation contravenes New Jersey precedent and
muddles the law. Justice Patterson explains that the courts in Sholtis and James
viewed general causation concepts to be inadequate to guide juries in workplace
toxic tort cases and instead expressly required plaintiffs in toxic tort cases to prove
an exposure of sufficient frequency, with a regularity of contact, and with the
product in close proximity to the plaintiff. In Justice Patterson’s view, the
majority’s default to the general proximate cause test, without the Sholtis/James
refinement of that standard for toxic tort cases, alters the plaintiff’s burden of proof
on the question of medical causation.
CHIEF JUSTICE RABNER and JUSTICE PIERRE-LOUIS join in JUSTICE
ALBIN’s opinion. JUSTICE SOLOMON joins JUSTICE ALBIN’s opinion in
part. JUSTICE PATTERSON filed a dissent, which JUSTICE SOLOMON
joins in part. JUDGE FUENTES (temporarily assigned) did not participate.
6
SUPREME COURT OF NEW JERSEY
A-5 September Term 2021
085939
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.
1
On certification to the Superior Court,
Appellate Division .
Argued Decided
January 19, 2022 June 30, 2022
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,
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).
JUSTICE ALBIN delivered the opinion of the Court.
2
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
3
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 (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 (1993); Theer v. Philip Carey Co., 133 N.J. 610, 620-21 (1993) (discussing
Coffman, its companion case). That approach enhances workplace safety by
4
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
5
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. 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.
I.
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,
1
After the conclusion of discovery, the trial court granted Union Carbide’s
motion for summary judgment. Fowler appealed, and the Appellate Division
reversed and remanded the matter for trial.
6
2018, and January 22, 2019. The record before us is based on the testimony
elicited and the exhibits admitted at trial.
A.
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.
2
Edenfield served in the army for two years, from February 1958 to February
1960, before returning to the Plant.
3
Edenfield died before the filing of the lawsuit in 2011.
7
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.
4
Calidria is a brand of chrysotile asbestos from California. The parties’
experts offered competing opinions about the health risks posed by Calidria
asbestos.
8
B.
The Warnings
1.
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 Department, presented a fuller
picture of the dangers posed to workers by the asbestos in its bags. The 1969
Union Carbide toxicology report explained that “[a] type of cancer named
mesothelioma has been noted to be associated with asbestos exposure” and
“may occur in individuals with histories of only slight exposures” twenty to
forty years earlier. (emphasis added). The report further discussed the known
risks of asbestos exposure and recommended health and safety measures.
Although Union Carbide instructed its salesmen to inform customers of the
report’s contents, nothing in the record indicates that the report itself was sent
to Edenfield’s employers.
In compliance with an emergency standard imposed by the Occupational
Safety and Health Administration (OSHA), in 1972 Union Carbide changed
the warning label to state: “CAUTION Contains Asbestos Fibers Avoid
9
Creating Dust Breathing Asbestos Dust May Cause Serious Bodily Harm.”
That same year, OSHA invited comments on its emergency standard for
warning labels on asbestos products.
The National Institute for Occupational Safety and Health (NIOSH)
recommended that a more urgent warning be given: “HARMFUL: May Cause
Delayed Lung Injury (Asbestosis, Lung Cancer). DO NOT BREATHE DUST
Use only with adequate ventilation and approved respiratory protective
devices.”5 Union Carbide did not upgrade its warning based on the NIOSH
recommendation.
Similarly, the Manufacturing Chemists’ Association proposed an
enhanced label warning:
WARNING: HARMFUL IF INHALED MAY CAUSE
DELAYED LUNG INJURY (ASBESTOSIS, LUNG
CANCER) Do not breathe dust. Use only with
adequate local exhaust ventilation or approved
respiratory protective devices. Remove dust and fibers
5
OSHA and NIOSH are different government organizations. OSHA is a part
of the United States Department of Labor. Centers for Disease Control and
Prevention, National Institute for Occupational Safety and Health (NIOSH)
Fact Sheet 1 (2003), https://www.cdc.gov/niosh/docs/2003-116/pdfs/2003-
116.pdf?id=10.26616/NIOSHPUB2003116. OSHA is charged with
“developing and enforcing workplace safety and health regulations.” Ibid.NIOSH is a part of the United States Department of Health and Human
Services. Ibid. It is charged with ensuring “safe and healthful working
conditions for working men and women by providing research, information,
education, and training in the field of occupational safety and health. ” Ibid.10
from clothing only by vacuum cleaning. Clean work
areas with vacuum cleaners or wet cleaning methods.
In a letter to OSHA, the Manufacturing Chemists’ Association indicated
that its proposed warning would “reflect additional critical information” and
“strengthen the message.” One of the doctors from Union Carbide’s medical
department was a member of the Association’s committee that made the
proposal. Nevertheless, Union Carbide did not upgrade its warning label on its
asbestos bags.6
By 1983, Union Carbide’s in-house staff placed the company on notice
that its warning label inadequately addressed the lethal dangers of asbestos
exposure. An internal memorandum dated February 15, 1983, from Union
Carbide employee R.W. Rebholz, stated that “[i]t is widely recognized” that
the 1972 label on Union Carbide’s Calidria products “understates the risk
associated with exposure to asbestos dust.” Rebholz proposed an alternative
warning:
Asbestos: Warning -- cancer hazard, higher risk in
smokers, cancer hazard is associated with breathing
asbestos dust. Where dust is present wear a respirator,
which has been approved by O.S.H.A. or N.I.O.S.H. for
the conditions encountered. For industrial use only. Do
not reuse packaging material.
6
OSHA retained the language in its emergency standard.
11
Rebholz explained that Union Carbide could have used the more
protective warning label with OSHA’s approval. Nevertheless, Union Carbide
declined to adopt Rebholz’s proposed warning label, claiming that, when
combined with the 1972 label, it “would be confusing to the individual using
the product.” Accordingly, Union Carbide never submitted Rebholz’s
proposed enhanced warning to OSHA for approval.
2.
Union Carbide presented evidence that it periodically provided
information and various safety warnings about its asbestos products to
Edenfield’s employers and requested that the information and warnings be
made available to the Plant’s employees. Over a course of years, Union
Carbide forwarded to its “Calidria” customers such items as Material Safety
Data Sheets, OSHA regulations, health and safety pamphlets published by the
Asbestos Information Association of North America (AIA/NA), and
toxicology reports, which, in their totality, discussed the chemical properties
of asbestos and provided safety warnings and measures to minimize the danger
of asbestos inhalation.
In 1969, Union Carbide furnished its customers with a toxicology report
that recommended ways to control asbestos dust through adequate ventilation
and noted that “mesothelioma” had been “associated with asbestos exposure in
12
recent years” and “may occur in individuals with histories of only slight
exposures.”
In 1971, Union Carbide representatives met with an environmental
control manager at the Bloomfield Plant and discussed “toxicity problems in
using Calidria asbestos” and “safe operating procedures,” though a Plant
manager still expressed concern “about the generation of asbestos dust”
through a particular procedure. By 1972, Union Carbide offered to provide air
monitoring to its customers.
In 1975, 1977, and 1981, Union Carbide forwarded to the operators of
the Bloomfield Plant Material Safety Data Sheets and requested that the
Plant’s employees be advised of “best safety practices” in the use of its
Calidria asbestos and that safety data and material be made available to them.
In its 1981 letter, Union Carbide provided a copy of the OSHA standards
on asbestos and recommended putting up posters instructing employees to use
respirators, vacuum dust spills, leave dusty clothes at work, repair broken
asbestos bags, report unsafe conditions, and stop smoking. The 1981 letter
included a poster warning that “[e]xposure to asbestos fiber can increase the
risk of developing certain diseases over a period of years,” including
“mesothelioma -- a rare cancer of the lining of the chest or abdominal
cavities.”
13
Testimony was also elicited about a June 1972 Union Carbide
memorandum to its salespersons on how to deal with customers who
questioned the safety of its asbestos products. The memorandum instructed
salespersons to “control[] the conversation,” to emphasize that “the vast
numbers of customers successfully use asbestos without problem,” and to put
the customer on the defensive “[i]f the customer is persistent and threatens to
eliminate asbestos.”
In its Appellate Division brief, Union Carbide highlighted that the
Plant’s operators declined its offer “to monitor the Plant’s air quality” and “to
disseminate the warnings or instructions to Plant employees.”
C.
The Expert Witnesses
In a proverbial battle of the experts, each side presented differing
opinions about the nature of the danger posed by Calidria asbestos and the
degree of exposure necessary to cause mesothelioma.
1.
Plaintiff’s Expert
Dr. Jacqueline Moline, M.D., an expert in occupational medicine in the
field of asbestos-related diseases, testified that mesothelioma is “a dose
response disease” -- the greater the exposure to asbestos, the greater the
14
likelihood of contracting mesothelioma. Dr. Moline emphasized, however,
that even “short exposures to asbestos cause mesothelioma.” She noted that
Edenfield’s exposure to asbestos was not brief but a daily feature of his work
life for years, as he was “pouring or scooping” Union Carbide’s products.
Because “asbestos is light and fluffy and it becomes airborne easily,” she
opined, “Edenfield’s exposure to Union Carbide’s asbestos [was] significant
enough to substantially contribute to his mesothelioma.” Dr. Moline stated
that she and most scientists share the opinion that all forms of asbestos,
without exception, cause mesothelioma. She concluded that Edenfield’s
exposure to Union Carbide’s Calidria asbestos was a substantial factor in his
contracting the deadly disease.
2.
Union Carbide’s Experts
Union Carbide presented the testimony of three experts.
Dr. James D. Crapo, M.D., an expert in the field of pulmonary and
internal medicine and asbestos-related diseases, testified that if Edenfield was
exposed to Union Carbide’s Calidria asbestos, it would not have been a
substantial contributing cause of Edenfield’s contracting mesothelioma. Dr.
Crapo opined that Union Carbide’s Calidria asbestos does not contain the type
of fibers that could reach the lower lung and cause mesothelioma.
15
Nevertheless, Dr. Crapo conceded that the type of asbestos produced by Union
Carbide “has been associated . . . at high dose with mesothelioma.”
Dr. William Dyson, Ph.D., an expert in the fields of industrial hygiene,
exposure and risk assessments, and OSHA requirements, testified that Union
Carbide’s Calidria asbestos presents a risk of mesothelioma only at “very high
exposure doses,” if at all. Dr. Dyson concluded that Edenfield’s “cumulative
exposure” to Union Carbide’s Calidria asbestos at the “[P]lant was not
sufficiently high” to have presented a risk of his contracting mesothelioma.
Dr. Victor Roggli, M.D., an expert in pathology and asbestos-related
diseases, concluded -- for reasons similar to those of Dr. Crapo and Dr. Dyson
-- that although asbestos exposure was the cause of Edenfield’s mesothelioma,
Union Carbide’s Calidria asbestos was not a substantial contributing factor in
Edenfield’s illness.
D.
The Charge to the Jury
Union Carbide objected to two jury instructions that are the focus of this
appeal. One instruction addressed the adequacy of the warnings that Union
Carbide gave about its asbestos products to the Bloomfield Plant’s employees,
and the other instruction addressed the standard to prove medical causation.
16
1.
The trial court instructed the jury that plaintiff had to prove by a
preponderance of the evidence the following elements of her strict liability and
negligence claims:
1. Edenfield was exposed to Union Carbide’s asbestos;
2. Edenfield’s exposure to Union Carbide’s asbestos was a substantial
factor in causing his mesothelioma (medical causation);
Solely for strict liability claim:
3a. Union Carbide failed to provide adequate warnings or instructions
on its products rendering them not reasonably safe for their intended and
foreseeable use; 7 or
3b. Union Carbide failed to take reasonable steps to ensure that its
warnings reached Edenfield;
If the jury found that plaintiff proved 3a or 3b, or both, then the jury was
instructed to consider whether plaintiff established product-defect causation.
4. Union Carbide’s failure to provide adequate warnings or instructions
with respect to its product or failure to take reasonable steps to ensure
7
The jury asked the trial court regarding question 3a, “is adequate
warning/instructions only to the labels on the asbestos bags or does it include
other materials[?]” The trial court replied, “[t]he answer to that question is it
deals with the asbestos bags.”
17
that its warnings reached Edenfield was a proximate cause of
Edenfield’s exposure to Union Carbide’s asbestos;
Solely for negligence claim:
5. Union Carbide was negligent in failing to provide adequate warnings
or instructions with respect to its asbestos; and
6. Union Carbide’s negligence in failing to provide adequate warnings
or instructions with respect to its asbestos was a proximate cause of
Edenfield’s exposure to Union Carbide’s asbestos.
The court made clear in its instructions that Union Carbide could be held liable
either for failing to place adequate warnings on its Calidria asbestos bags or
failing to disseminate adequate warnings and information to the Bloomfield
Plant intended for its employees.
The trial court instructed the jury as follows: 8
In the employment context, a manufacturer or supplier
of products that are used by employees is required to
take reasonable steps to ensure that its warnings reach
those employees. Satisfying that obligation may
require that warnings be communicated to employers,
as well as employees. In this case there has been
evidence of warnings provided both on labels on Union
Carbide’s asbestos as well as warnings and information
provided to Mr. Edenfield’s employers. In determining
whether Union Carbide satisfied its duty to warn, you
8
The trial court modified Model Jury Charge 5.40C to address the facts of this
case. See Model Jury Charges (Civil), 5.40C, “Failure to Warn/Instruct” (rev.
Sept. 2021).
18
may consider both of these avenues of warning. The
duty to put an adequate warning on the product may not
be discharged by warnings and information to the
employer.
[(emphases added).]
The trial court further instructed the jury:
In an employment context, the manufacturer or supplier
of products that are used by employees has an
additional duty to take reasonable steps to ensure that
its warnings reach those employees, which may require
that warnings be communicated to employers, as well
as employees. Thus, even if you find that the warnings
on Union Carbide’s asbestos were adequate, you may
find that Union Carbide’s failure to take reasonable
steps to ensure that its warnings reached Mr. Edenfield
was a proximate cause of Mr. Edenfield’s exposure to
Union Carbide’s asbestos and his mesothelioma.
Union Carbide objected to those instructions. It had earlier offered its
own proposed charge, which would have allowed the jury to find that, even if
the warnings on the asbestos bags were inadequate, Union Carbide was not
liable if it provided the employer warnings and information “with the intention
or purpose that the employer alert employees to the dangers of the product and
the proper methods of mitigating the risks presented by the product.”
2.
The court gave the following instructions on medical causation:
By proximate cause it is meant that the failure to warn
was a substantial factor which singly, or in combination
with another cause, brought about the injury.
19
“Substantial” means that a product was an efficient
cause of the Plaintiff’s injury, and that it was not a
remote or trivial cause having only an insignificant
connection with the harm. Liability should not attach
based on casual or minimal contact with the product.
Liability should not be imposed on mere guesswork.
The trial court rejected Union Carbide’s proposed Sholtis charge on
medical causation, which would have required plaintiff to “prove that Mr.
Edenfield was exposed to [Union Carbide’s] product with sufficient frequency,
with a regularity of contact, and with the product in close enough proxim ity to
show that the exposure . . . was a substantial contributing factor to Mr.
Edenfield’s mesothelioma.” (emphasis added). The court reasoned that it had
never given such a charge in a mesothelioma case and had always relied on the
substantial factor test in the Model Charge.
E.
The Verdict
The jury returned a verdict in favor of plaintiff on both her strict liability
and negligent failure to warn claims. In reaching that conclusion, the jury
made specific findings recorded on the verdict sheet. The jury found that (1)
Union Carbide failed to provide adequate warnings or instructions on its
product (the asbestos bags), (2) the failure to do so was a proximate cause of
Edenfield’s exposure to Union Carbide’s asbestos, and (3) that exposure was a
substantial factor in causing his mesothelioma.
20
The jury also determined that plaintiff did not prove that Union Carbide
failed to take reasonable steps to ensure that the warnings it gave to
Edenfield’s employers reached Edenfield -- a finding that, in the end, did not
undermine the verdict because, pursuant to the charge, the jury was advised
that providing warnings and instructions to the employer alone did not satisfy
Union Carbide’s duty to warn Edenfield. 9
The jury awarded plaintiff an aggregate amount of $2,380,000 in
damages.
The court denied Union Carbide’s motions for judgment notwithstanding
the verdict and, alternatively, for a new trial. Union Carbide appealed.
9
Contrary to our dissenting colleagues’ assertion, post at ___ (slip op. at 16-
17), the jury charge made clear that Union Carbide had to provide adequate
warnings not only on the asbestos bags, but also to Edenfield’s employers. No
objective reading of the charge suggests that Union Carbide had only a duty to
provide adequate warnings on the asbestos bags but could provide lesser
warnings to the employer.
For example, the jury was instructed that it “must determine what
warnings and instructions [Union Carbide] provided and whether those
warnings and instructions were adequate.” The court stated that “[a]dequate
information may be required to be given to others in the chain of distribution
of the product such as from the manufacturer and the seller to the buyer” --
Edenfield’s employer. The court made clear to the jury that it could consider
the adequacy of the warnings communicated on the bags and those
communicated to the employer. The jury knew that question 3a related to the
warnings on the asbestos bags and question 3b related to the warnings
provided to the employer, as indicated by its query to the court.
21
F.
The Appellate Division
In an unpublished decision, the Appellate Division reversed, finding that
the trial court erred in charging the jury on two separate issues.
On the first issue, the Appellate Division held that the trial court
wrongly instructed the jury that, if Union Carbide placed inadequate warnings
on its asbestos products, it could not otherwise discharge its duty by providing
adequate warnings and information to the employer to be passed along to
employees. According to the Appellate Division, under case law, the adequacy
of the warnings depends on a standard of “reasonableness under the
circumstances.” The Appellate Division agreed that Union Carbide owed a
“concurrent duty to warn both the employee and employer,” and that a
“manufacturer may not delegate to the employer its duty to warn the employee
of the unsafe product.” Nevertheless, the court stated that “in appropriate
circumstances, the manufacturer may discharge this duty . . . by conveying the
warnings to the employer and relying on the employer to convey them to the
employee.”
The Appellate Division reasoned:
If the warnings and instructions on the product are
inadequate, the manufacturer must make greater efforts
22
to warn the employer of the product’s dangers, provide
sufficient information to the employer on the product’s
dangers and safe use, and ensure that the employer
conveys this information to the employee. However,
the manufacturer may also have to establish that the
nature of the workplace prevented the manufacturer
from conveying the information directly to the
employee.
To a large extent, the court relied on its decision in Grier v. Cochran
Western Corp., a failure-to-warn case involving an airline employee injured
while using a beltloader vehicle manufactured by the defendant. 308 N.J.
Super. 308, 312-14 (App. Div. 1998). In determining the scope of the
manufacturer’s duty to warn, the Appellate Division looked to the Grier
court’s reliance on the Restatement (Third) of Torts: Products Liability § 2
cmt. i (Am. Law Inst. 1998), which sets forth a standard “of reasonableness in
the circumstances.”
On the second issue, the Appellate Division asserted that the trial court
erred in not charging the jury on the “frequency, regularity, and proximity”
test set forth in Sholtis, 238 N.J. Super. at 28-29, and later adopted in James v.
Bessemer Processing Co., 155 N.J. 279, 301-04 (1998), for establishing
medical causation in asbestos-exposure cases involving multiple defendants.
According to the Appellate Division, “[t]he Sholtis test requires plaintiff to
prove that Edenfield was exposed to Union Carbide’s asbestos on numerous
occasions, and while he was physically close to the product.” The trial court
23
went awry, said the Appellate Division, because “the court’s instructions
required plaintiff to prove only that Edenfield’s exposure was more than
minimal and that it had a connection to his injury that was greater than
insignificant.” The appellate court concluded that “[a]lthough the jury found
plaintiff proved that Edenfield was exposed to Union Carbide’s asbestos, it is
not possible to know whether the jury would have found that he was exposed
with the requisite frequency, regularity and proximity.”
Based on what it perceived to be erroneous jury instructions, the
Appellate Division remanded for a new trial.
We granted plaintiff’s petition for certification, 248 N.J. 409 (2021),
which raised two issues. The first issue is whether a manufacturer or supplier
that puts inadequate warnings on its asbestos products used in the workplace
can fulfill its duty to warn by disseminating adequate information to the
employer with the intention that such information will reach the workers using
those products. The second issue is whether, in charging on medical causation
in this mesothelioma case, the trial court was required to give the frequency,
regularity, and proximity language in Sholtis rather than the substantial factor
test in the Model Civil Charge, as modified by the court.
We also granted the motions of the New Jersey Association for Justice,
the Chamber of Commerce of the United States of America and the New
24
Jersey Civil Justice Institute, and the Coalition for Litigation Justice, Inc., to
participate as amici curiae.10
II.
A.
Plaintiff submits that the Appellate Division’s decision is inconsistent
with well-settled case law. She contends that a manufacturer of a hazardous
product used in the workplace has a non-delegable duty to provide not only
adequate warnings to the employer, but also to the employee, citing Coffman,
133 N.J. at 607, and Theer, 133 N.J. at 620-21. The employer warnings, she
states, are not a substitute for a safety label on a dangerous product; the
employer warnings are intended as an additional safeguard so an employee can
make an informed and meaningful decision on whether and how to work with a
product such as asbestos. Plaintiff asserts that Union Carbide failed to provide
adequate warnings on its asbestos bags to alert Edenfield about known dangers
but now seeks to evade liability for its unsafe products because it forwarded
useful information to the employer. She argues that the manufacturer should
not be allowed to outsource its duty because the “harsh[] reality” is that some
10
The Chamber of Commerce and the New Jersey Civil Justice Institute filed
a joint brief.
25
employers have been known to subject “workers to the risks of injury and
disease,” quoting Millison v. E.I. du Pont, 101 N.J. 161, 177 (1985).
Additionally, plaintiff argues that the trial court gave the proper medical
causation charge -- the substantial factor test -- in this asbestos case involving
mesothelioma. Plaintiff relies on Kurak v. A.P. Green Refractories Co. for the
proposition that “[w]here there is competent evidence that one or a de minimis
number of asbestos fibers can cause injury, a jury may conclude the fibers
were a substantial factor in causing a plaintiff’s injury,” quoting 298 N.J.
Super. 304, 321 (App. Div. 1997). Plaintiff contends that the Appellate
Division erred in finding that the “frequency, regularity, and proximity” test
was appropriate in this mesothelioma case.
Amicus the New Jersey Association for Justice echoes the arguments
advanced by plaintiff. The Association emphasizes that “warnings conveyed
by the manufacturer directly to workers are necessary to ensure their safety ”
and that allowing a manufacturer to discharge its duty by simply warning the
employer will profoundly limit an injured employee’s remedies to those
afforded under the Workers’ Compensation Act, N.J.S.A. 34:15-7 to -35.22.
B.
Union Carbide urges this Court to affirm the Appellate Division. In
Union Carbide’s view, “the Appellate Division simply held that jurors should
26
be allowed to consider whether it was reasonable for Union Carbide to rely on
Edenfield’s employer to relay some of . . . [the] product warnings to
Edenfield.” Union Carbide argues that the jury should have been instructed
that if it took “reasonable steps” to have its warnings reach employees through
the employer, then it could be absolved of liability, even though its warnings
on the asbestos bags were inadequate. Union Carbide asserts that it is
reasonable in some workplaces to rely on employers to disseminate warnings
to employees, a position consistent with the Third Restatement § 2 cmt. i,
relied on by the Appellate Division in Grier.
Union Carbide also contends that the Appellate Division rightly held that
the trial court erred in not charging the Sholtis “frequency, regularity, and
proximity” test as the standard for proving medical causation. It reasons that
the Sholtis test can be “calibrated to the level of exposure required for the
injury at issue” and asserts that the test has been applied by New Jersey courts
in mesothelioma cases.
Amici the Chamber of Commerce of the United States of America and
the New Jersey Civil Justice Institute echo Union Carbide’s arguments and add
that “[f]ocusing solely on a product’s packaging” fails to account for the way
industrial products are used in the workplace and will cause manufacturers to
27
attach lengthy warnings that will diminish important information needed to be
conveyed to employees.
Amicus the Coalition for Litigation Justice, Inc., also maintains that the
jury in this case should have been instructed to consider whether Union
Carbide’s warnings to the employee -- directly through labeling on the product
and through the employer as a third-party intermediary -- were reasonable
under the circumstances. The Coalition proposes that the Court adopt the
Third Restatement’s approach and allow the jury to weigh all of the factors
related to the reasonableness of the employer’s actions.
III.
A.
Whether the trial court correctly instructed the jury on the adequacy of
the product warnings and medical causation are issues of law that we review
de novo. State ex rel. Comm’r of Transp. v. Marlton Plaza Assocs., L.P., 426
N.J. Super. 337, 347 (App. Div. 2012) (citing Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)). We do not defer to the trial
court or Appellate Division’s interpretive legal conclusions, unless we are
persuaded that they are correct. See Lewis v. Harris, 188 N.J. 415, 431-32
(2006).
28
B.
This case is governed by our common law jurisprudence on product
liability and not the New Jersey Products Liability Act (PLA), N.J.S.A.
2A:58C-1 to -11. See Whelan v. Armstrong Int’l Inc., 242 N.J. 311, 331
(2020). “The PLA by its explicit terms does ‘not apply to any environmental
tort action.’” Ibid. (quoting N.J.S.A. 2A:58C-6). Asbestos claims fall within
the category of an environmental tort because such cases largely involve
workers’ exposure to contaminated air. Ibid. Significantly, “[t]he standard in
a failure-to-warn case is no different, whether the action is considered under
the PLA or our common law jurisprudence.” Ibid. (citing Zaza v. Marquess &
Nell, Inc., 144 N.J. 34, 49 (1996)). 11
“[A] manufacturer has a duty to ensure that the products it places into
the stream of commerce are safe when used for their intended purposes.” Id. at
11
The PLA states, in part, that
[a]n adequate product warning or instruction is one that
a reasonably prudent person in the same or similar
circumstances would have provided with respect to the
danger and that communicates adequate information on
the dangers and safe use of the product, taking into
account the characteristics of, and the ordinary
knowledge common to, the persons by whom the
product is intended to be used.
[N.J.S.A. 2A:58C-4.]
29
332 (alteration in original) (quoting Zaza, 144 N.J. at 48). A product that is
shipped to a workplace without adequate warnings about the product’s inherent
dangers is a defective product. Ibid. (citing Feldman v. Lederle Labs., 97 N.J.
429, 450 (1984)); see also Becker v. Baron Bros., Coliseum Auto Parts, Inc.,
138 N.J. 145, 166 (1994) (stating “that an asbestos-related product is unsafe
because a warning could have made it safer” (quoting Campolongo v. Celotex
Corp., 681 F. Supp. 261, 264 (D.N.J. 1988))).
The risk of contracting “serious and often deadly asbestos-related
illnesses, such as asbestosis and mesothelioma,” from exposure to asbestos
dust is well known. Whelan, 242 N.J. at 338 (citing Beshada v. Johns-
Manville Prods. Corp., 90 N.J. 191, 197-98 (1982)). Equally clear is that
manufacturers of asbestos products “have the ability to act reasonably” by
putting “proper warnings on their products, making those products safer ‘at
virtually no added cost and without limiting [the product’s] utility.’” Ibid.(alteration in original) (quoting Beshada, 90 N.J. at 201-02).
In this common law, strict-liability failure-to-warn action, plaintiff had
to prove that (1) without adequate warnings, use of Union Carbide’s asbestos
bags by workers, such as Edenfield, was dangerous -- a product defect; (2)
Union Carbide forwarded the asbestos bags to the Bloomfield Plant without
30
adequate warnings -- in a defective condition; and (3) the inadequate warnings
proximately caused Edenfield to contract mesothelioma. See id. at 333.
The third factor requires proof of two different forms of causation:
product-defect causation and medical causation. Ibid. (citing James, 155 N.J.
at 297). “For product-defect causation, the plaintiff must show that the defect
in the product -- the lack of warnings or adequate warnings -- was a proximate
cause of the asbestos-related injury.” Ibid. (citing Coffman, 133 N.J. at 594).
“For medical causation, the plaintiff must show that the injury was
‘proximately caused by exposure to defendant’s asbestos product . . . .’” Ibid.(quoting Coffman, 133 N.J. at 594).
The first issue is whether the trial court properly charged the jury on
product defect in a workplace setting. The court instructed the jury that
plaintiff had to prove that Union Carbide’s asbestos products were rendered
defective in one or two ways: the failure to place adequate warnings on the
asbestos bags handled by Edenfield, or the failure to disseminate adequate
warnings to the operators of the Bloomfield Plant with the intention that they
reach Edenfield. In other words, did the trial court correctly charge the jury
that if the warnings on the asbestos bags were inadequate, Union Carbide
could not escape liability by giving Edenfield’s employers proper warnings?
31
In line with the trial court’s charge, our jurisprudence establishes that an
asbestos manufacturer or supplier has a duty to provide adequate warnings to
both the employee directly and the employer.
C.
In Coffman, we held that, in the workplace context, “the basic duty of a
manufacturer or supplier [is] to warn both employers and employees with
respect to unsafe products in the workplace.” 133 N.J. at 608. In that strict
liability failure-to-warn case arising in a workplace setting, we recognized a
presumption -- subject to limited exceptions -- that if the manufacturer had
provided an adequate product warning, the plaintiff worker would have heeded
the warning to minimize the risk of injury. Id. at 591, 602-03. In coming to
that conclusion, we emphasized in asbestos-exposure cases the importance of
the warning actually reaching the employee. See id. at 606. The asbestos
products supplied by the defendant and handled by the plaintiff in Coffman did
not contain any safety warnings. Id. at 592.
In light of the dangers posed by asbestos to the health of workers, we
have repeatedly noted the dual duty of an asbestos manufacturer or supplier to
warn both the employee and the employer. Thus, we stated in Coffman: “we
reasonably assume that a manufacturer or supplier, consistent with its own
duty, will provide an adequate warning of its unsafe product to employers as
32
well as employees”; “[c]onsistent with [the] duty to warn, it should be
presumed that such warnings directed to employers and employees will be
heeded”; and “in the employment setting, the adequacy of a warning with
respect to unsafe products may require that they be communicated to
employers as well as employees.” Id. at 607-09 (emphases added) (citing
Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 400 (1982); Bexiga v.
Havir Mfg. Corp., 60 N.J. 402, 403 (1972)).
The importance of placing adequate warnings on the product itself, when
feasible, is informed by the fact that some employers may not provide critical
health warnings and information to their workforce. “Unfortunately, there are
examples of employers who fail to take reasonable measures to assure the
safety and health of their employees in the face of warnings.” Id. at 608
(citing Millison v. E.I. du Pont, 115 N.J. 252 (1989); Beshada, 90 N.J. 191).
Dual warnings -- possibly redundant warnings -- are warranted because
workers “exposed to a defective product” without adequate warnings are
deprived of the ability “to exercise [a] meaningful choice with respect to
confronting the risk of injury posed by the product.” See id. at 605. When
dealing with a potentially lethal product such as asbestos, it is also reasonable
to impose a duty requiring the manufacturer to provide important information
to the employer, who can then “give its employees adequate warnings as part
33
of its more encompassing duty to provide employees with a safe and healthy
workplace.” Id. at 607.
In Theer, a companion case to Coffman, we emphasized again “that
employers have an independent duty to provide a safe workplace for their
employees, and that a manufacturer or supplier of a product intended for use in
the workplace is under a concurrent duty to warn employers, as well as
employees, concerning the safety risks of its products.” Theer, 133 N.J. at
620-21 (emphasis added) (citing Coffman, 133 N.J. at 606-08). In cases
involving toxic substances, the dual duty to warn both the employee and
employer is now well ingrained in our law. We repeated this simple
proposition in James, a toxic tort case, stating that “[i]n the employment
context, a manufacturer’s duty to warn of the dangers posed by its products
extends to both the employer and the employees of the recipient entity.” 155
N.J. at 298 (citing Coffman, 133 N.J. at 606-09).
D.
In cases involving asbestos products in a workplace setting, we have
hewed to the concurrent duty to warn, as in Coffman, where placing a warning
on the product itself is feasible. In the present case, Union Carbide put an
inadequate warning on its asbestos bags, despite its knowledge of the
deficiency of that warning.
34
Union Carbide points to Grier, 308 N.J. Super. 308, a non-asbestos PLA
case involving a sophisticated piece of machinery, as charting a different path.
We disagree.
In Grier, the plaintiff airline employee operated a beltloader vehicle,
which conveys cargo onto an aircraft. Id. at 312-13. Walking down the
beltloader while the guardrail was down, the plaintiff slipped and fell
approximately thirteen to fourteen feet onto the tarmac, injuring himself. Id. at
313-14. One of the plaintiff’s product defect theories was “that the
manufacturer breached its duty to give an adequate warning of the hazard of
climbing and descending the conveyor without the raised guardrail.” Id. at
316.
The evidence in Grier established that the guardrail on the beltloader
was “painted ‘OSHA yellow’ to highlight its availability and required use” and
that the manufacturer “offered free training to each airline who bought its
beltloader.” Id. at 319. Although the airline declined the manufacturer’s offer,
the airline trained its employees “on the use of the beltloader, including when
to use the safety guardrail.” Ibid. Two of the plaintiffs’ co-workers testified
that they were instructed to raise the guardrail when using the beltloader, and
the airline’s training specialist testified that he trained the plaintiff, who would
have received the same guidance as his co-workers. Id. at 320-21.
35
The Appellate Division stated that “[t]he question simply is whether, in
the context of a given case, the manufacturer acted reasonably in conveying
adequate information on the safe use of its product.” Id. at 318. The
Appellate Division rejected the plaintiff’s “contention that, as a matter of law,
a manufacturer may not discharge its duty to warn by alerting the employer of
the dangers in the operation of sophisticated machinery.” Ibid. (emphasis
added). In reaching that conclusion, the Grier court relied on the Restatement
(Third) of Torts: Products Liability § 2 cmt. i, which, in part, provides:
There is no general rule as to whether one supplying a
product for the use of others through an intermediary
has a duty to warn the ultimate product user directly or
may rely on the intermediary to relay warnings. The
standard is one of reasonableness in the circumstances.
Among the factors to be considered are the gravity of
the risks posed by the product, the likelihood that the
intermediary will convey the information to the
ultimate user, and the feasibility and effectiveness of
giving a warning directly to the user.
The jury in Grier found in favor of the defendant. Id. at 316. The
Appellate Division held that the jury’s verdict was entitled to deference and
that the evidence supported “the jury’s finding that [the defendant
manufacturer] did not breach its duty to warn.” Id. at 321.
E.
Tens of thousands of employees have died from mesothelioma as a result
of exposure to asbestos in the workplace. Jacek M. Mazurek et al., Malignant
36
Mesothelioma Mortality -- United States, 1999-2015, 66 Morbidity &
Mortality Wkly. Rep. 214, 217 (2017), available at https://www.cdc.gov
/mmwr/volumes/66/wr/pdfs/mm6608a3.pdf. Our common law failure-to-warn
jurisprudence involving asbestos products is informed by the lethality of
asbestos exposure. It recognizes “the simple notion that without warnings, the
users of potentially dangerous products are ‘unaware’ of the products’ hazards
and therefore cannot ‘protect themselves from injury.’” Whelan, 242 N.J. at
335-36 (quoting Beshada, 90 N.J. at 209). No one truly questions that raw
asbestos dispersed into the air is a highly toxic substance that threatens the
health of workers.12
In light of the deadly dangers posed by asbestos in the workplace,
Coffman and Theer imposed a special duty on manufacturers and suppliers of
asbestos -- the concurrent duty to warn not only the employee but also the
employer. Coffman, 133 N.J. at 607, 609; Theer, 133 N.J. at 620-21. That
dual-warning requirement provides heightened protections to workers in an
employment setting and the greatest assurance that critical -- perhaps even life-
saving -- information is disseminated to workers. Under that approach, if the
12
We acknowledge “that asbestos-containing products are not uniformly
dangerous.” Whelan, 242 N.J. at 336 n.8 (quoting Becker, 138 N.J. at 160).
Here, however, we are dealing with raw asbestos.
37
worker does not read or is unable to read the warnings on the product -- here,
the asbestos bags -- the fail-safe is that the manufacturer will supply the
employer with warnings to disseminate to the employees. The goal is to
ensure that the worker is informed of the product’s dangers and of the safety
measures to be taken. Holding manufacturers and suppliers of asbestos
products liable for not complying with the concurrent warning requirement
maximizes the likelihood that adequate warnings will reach the workers at risk.
In the end, if adequate warnings are not communicated to workers about
the real health risks of asbestos, then those workers are denied the right “to
exercise [a] meaningful choice with respect to confronting the risk of injury
posed by the product.” See Coffman, 133 N.J. at 605.
This case illustrates the importance of the dual-warning doctrine set
forth in Coffman and Theer in asbestos cases and in James in highly toxic
substance cases. Union Carbide was aware that the warnings on its asbestos
bags understated the health risks to workers at the Bloomfield Plant , yet there
was no mention in the warnings that inhaling asbestos fibers may cause lung
cancer. Union Carbide knew that NIOSH and the Manufacturing Chemists’
Association proposed more detailed warnings, particularly about the product’s
association with cancer; and it ignored its own in-house staff member who
informed the company that its label warning on Calidria products “understates
38
the risk associated with exposure to asbestos dust” by failing to address the
“cancer hazard.”
In this case too, the dual warning requirement failed. Not only did
Union Carbide provide inadequate label warnings on its products, but as even
Union Carbide conceded in its Appellate Division brief, the Bloomfield Plant’s
operators did not “disseminate the [manufacturer’s] warnings or instructions to
Plant employees.”
Our common law jurisprudence governed the environmental torts in
Coffman, Theer, and James -- cases involving highly toxic substances that
posed an inherent risk to the users of the manufacturers’ products on which the
placement of adequate warnings was clearly feasible. Inadequate warnings on
those products rendered the products defective. See Whelan, 242 N.J. at 332.
Grier, which fell within the domain of the PLA, presented a much different
scenario -- the operation of a sophisticated machine. The complex nature of
the machinery in Grier impelled the manufacturer to provide instructional
manuals and to offer training, which ultimately was provided by the employer
to its employees, including the plaintiff.
Different products may require different approaches. Instructive label
warnings may be more efficacious and feasible in dealing with certain toxic
substances than sophisticated pieces of machinery. Although information
39
disseminated by the employer may always be important in addressing how to
safely operate or handle dangerous products in the workplace, in the case of
sophisticated machinery supervisory training may be an especially significant
component in reducing safety hazards, as suggested by Grier. We do not
suggest a one-size-fits-all approach.
The PLA states that “[a]n adequate product warning . . . communicates
adequate information on the dangers and safe use of the product.” N.J.S.A.
2A:58C-4. But that standard must be viewed through the lens of how “a
reasonably prudent person in the same or similar circumstances would have
provided” the warnings, “taking into account the characteristics of, and the
ordinary knowledge common to, the persons by whom the product is intended
to be used.” Ibid. Pouring asbestos into a container with the likely dispersal
of some toxic fibers into the air, with even brief exposure having potentially
deadly consequences, is different from the potential dangers of operating a
beltloader. The two scenarios do not present the same or similar
circumstances, and therefore a reasonably prudent manufacturer must take into
account the different characteristics of the products and the people who will
use them.
No Supreme Court case or reported Appellate Division case has applied
the Third Restatement of Torts: Products Liability to a case involving
40
asbestos, and we do not do so here. But, if we were to do so, the directives in
Coffman and Theer, and the charge to the jury in this case, would be consistent
with the Third Restatement.
Looking at the factors enumerated in the Third Restatement in defining
the standard of reasonableness, we begin with “the gravity of the risks posed
by the product.” Third Restatement § 2 cmt. i. We need not repeat that
asbestos exposure causes such deadly diseases as mesothelioma. Asbestos
exposure clearly poses grave health risks.
Next, we consider “the feasibility and effectiveness of giving a warning
directly to the user.” Ibid. The appropriate warnings on Union Carbide’s
asbestos bags stating the products’ risks fit just as well as the inadequate ones
the company chose to maintain on the bags. Placing effective warnings on the
product was clearly feasible without additional cost.
Last, we consider “the likelihood that the intermediary will convey the
information to the ultimate user.” Ibid. Responsible employers will present to
their workforce the health risks related to the products that they handle, and
the appropriate safety measures needed to be taken. But our case law reveals
that not all employers are responsible, and therefore the manufacturer’s label
warnings on the product may be critical in enabling workers to have a
41
“meaningful choice” in protecting their own health. See Coffman, 133 N.J. at
605.
Thus, this Court’s asbestos jurisprudence is not inconsistent with the
Third Restatement.
In this asbestos case, we stand by the directives given in Coffman and
Theer that the manufacturer had a duty to provide concurrent warnings both to
the employee, through product labeling, and to the employer with the intention
that the necessary safety information would be disseminated to the workforce.
We also conclude that the trial court properly charged the jury that “[t]he
duty to put an adequate warning on the product may not be discharged by
warnings and information to the employer.” Thus, Union Carbide’s asbestos
bags were defective products because of the inadequate warnings -- regardless
of the information conveyed to the Bloomfield Plant with the intention that
adequate safety information reach employees such as Edenfield. The trial
court appropriately allowed the jury to consider whether the lack of adequate
warnings on the asbestos bags were “a proximate cause of Edenfield’s
exposure to Union Carbide’s asbestos.”
We therefore affirm the trial court’s charge on product defect and reject
the reasoning and holding of the Appellate Division on that issue. In rendering
this decision, we remain faithful to our jurisprudence, which holds “that ‘[t]he
42
burden of illness from dangerous products such as asbestos should be placed
upon those who profit from its production and, more generally, upon society at
large, which reaps the benefits of the various products our economy
manufactures.’” See Whelan, 242 N.J. at 336 (alteration in original) (quoting
Beshada, 90 N.J. at 209).
IV.
We now turn to the question of whether the trial court correctly charged
the jury on medical causation.
To establish medical causation in this case, plaintiff had to prove that
Edenfield’s disease was “proximately caused by exposure to [Union Carbide’s]
product.” See James, 155 N.J. at 299. More specifically, to prove proximate
cause, plaintiff had to establish that Edenfield’s exposure to Union Carbide’s
Calidria asbestos, alone or in combination with other suppliers’ products, “was
a substantial factor in causing or exacerbating [his] disease” -- mesothelioma.
See ibid. (quoting Sholtis, 238 N.J. at 30-31); see also Model Jury Charges
(Civil), 5.40I, “Proximate Cause” (approved Feb. 1989). Generally, a
substantial factor is “not a remote, trivial or inconsequential cause.” Model
Jury Charges (Civil), 6.12, “Proximate Cause -- Where There Is Claim That
Concurrent Causes of Harm Were Present” (approved May 1998).
43
In this asbestos exposure case, in addition to instructing the jury in
accordance with the Model Jury Charge on “substantial factor,” the court
charged the jury with language adapted to asbestos exposure cases. The court
instructed the jury that a substantial factor is an “efficient cause” of the injury
or disease and “not a remote or trivial cause having only an insignificant
connection with the harm.” The trial court also advised the jury that
“[l]iability should not attach based on casual or minimal contact with the
product. Liability should not be imposed on mere guesswork” -- language
coming directly from Sholtis, 238 N.J. Super. at 29. (emphases added).
Union Carbide claims that the trial court strayed from the “frequency,
regularity, and proximity test” set forth in Sholtis -- a test adopted by our
Court in James. However, the Sholtis test is adaptable to varying scenarios
and should not be rigidly and inflexibly applied. By any objective standard,
the essence of the Sholtis test was conveyed to the jury in the distinctive
circumstances of this case.
In Sholtis, the Appellate Division looked to other jurisdictions for
guidance in refining the substantial factor test in cases involving asbestos
exposure that caused asbestos-related diseases. 238 N.J. Super. at 28-29.
Notably, the disease contracted in that case was asbestosis. Id. at 14. The
Sholtis court took the approach that “a plaintiff [must] prove an exposure of
44
sufficient frequency, with a regularity of contact, and with the product in close
proximity; and that such factors should be balanced for a jury to find liability.”
Id. at 28 (citing Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-
63 (4th Cir. 1986) (establishing the “frequency, regularity and proximity”
test)). By embracing the “frequency, regularity and proximity test,” the
Sholtis court asserted that liability should not be based on exposure to a
product that is “casual or minim[al]” or “predicated on guesswork.” Id. at 29.
The court made clear, however, that the test is not defined by “catch words”
and “the underlying concept should not be lost.” Ibid.
In James, we applied the Sholtis test to an occupational-exposure, toxic-
tort case in which the plaintiff alleged that the decedent’s death from “stomach
and liver cancer was proximately caused by prolonged, frequent and repetitive
exposure to defendants’ petroleum and chemical products.” 155 N.J. at 284-
86. In that case, we held that generally “a plaintiff in an occupational-
exposure, toxic tort case may demonstrate medical causation by establishing
. . . factual proof of the plaintiff’s frequent, regular and proximate exposure to
a defendant’s products.” Id. at 304.
Importantly, we explained that plaintiffs seeking to prove causation in
toxic-tort litigation face “extraordinary and unique burdens” that are “more
subtle and sophisticated than proof [burdens] in cases concerned with more
45
traditional torts.” Id. at 299 (first quoting Rubanick v. Witco Chem. Corp.,
125 N.J. 421, 433 (1991); and then quoting Landrigan v. Celotex Corp., 127
N.J. 404, 413 (1992)).
Courts have recognized that, in cases involving asbestos-exposure that
allegedly caused mesothelioma, “the frequency, regularity and proximity test
‘is not a rigid test with an absolute threshold level necessary to support a jury
verdict.’” Est. of Brust v. ACF Indus., LLC, 443 N.J. Super. 103, 125 (App.
Div. 2015) (quoting James, 155 N.J. at 302). Flexibility is required because
“[t]he amount of evidence needed to establish the regularity and frequency of
exposure will differ from case to case.” Kurak, 298 N.J. Super. at 321
(quoting Wehmeier v. UNR Indus., Inc., 572 N.E.2d 320, 337 (Ill. App. Ct.
1991)).
Many courts have acknowledged that mesothelioma can be “caused after
only minor exposure to asbestos dust.” See ibid. (quoting Wehmeier, 572
N.E.2d at 337); see also, e.g., Brust, 443 N.J. Super. at 126-27 (“[I]t is
undisputed that mesothelioma can develop from minimal exposure to
asbestos.”); Tragarz v. Keene Corp., 980 F.2d 411, 421 (7th Cir. 1992)
(applying Illinois law and concluding “that low exposures of asbestos induce
and contribute to the development of mesothelioma”); Larson v. Johns-
Manville Sales Corp., 399 N.W.2d 1, 4 (Mich. 1986) (recognizing that
46
mesothelioma “appears to develop with only minimal exposure to asbestos”);
Holcomb v. Ga. Pac., LLC, 289 P.3d 188, 196 n.9 (Nev. 2012)
(“[M]esothelioma is a signature asbestos disease that can be contracted from
low doses of asbestos exposure.”); Gregg v. V-J Auto Parts, Co., 943 A.2d
216, 225-26 (Pa. 2007) (adopting Tragarz and holding that even minimal
exposure to asbestos can cause mesothelioma); Borg-Warner Corp. v. Flores,
232 S.W.3d 765, 771 (Tex. 2007) (“[I]t is generally accepted that one may
develop mesothelioma from low levels of asbestos exposure[.]” (quoting
David L. Faigman et al., Modern Scientific Evidence: The Law and Science of
Expert Testimony § 28:5 at 416 (2007))).
The frequency, regularity, and proximity of exposure to a toxic
substance necessary to cause a disease, therefore, will depend on the peculiar
characteristics of the toxic substance and the disease induced. Certain
substances are much more toxic than others and have a much greater capacity
to cause deadly diseases, even if exposure is relatively minimal. For example ,
“[m]alignant mesothelioma can develop after short-term asbestos exposures of
only a few weeks, and from very low levels of exposure. There is no evidence
of a threshold level below which there is no risk for mesothelioma.” Mazurek,
66 Morbidity & Mortality Wkly. Rep. at 215.
47
The frequency, regularity, and proximity test is merely an articulation of
what constitutes a substantial factor for purposes of determining proximate
cause in an occupational exposure setting. See Johnson v. Allis-Chalmers
Corp. Prod. Liab. Tr., 11 F. Supp. 3d 1119, 1126 (D. Wyo. 2014) (concluding
that “the ‘frequency, regularity, and proximity’ standard is not a new or
different test” from the substantial factor test but one formulation of that test
in the asbestos context). When a plaintiff has presented competent and
credible evidence that even a minimal “number of asbestos fibers can cause”
mesothelioma, then “a jury may conclude the fibers were a substantial factor in
causing a plaintiff’s injury.” Kurak, 298 N.J. Super. at 321 (quoting
Wehmeier, 572 N.E.2d at 337).
Here, plaintiff’s expert, Dr. Moline, emphasized that even “short
exposures to asbestos cause mesothelioma.” In addition, Dr. Moline expressed
that Edenfield’s exposure to Union Carbide’s Calidria asbestos was a daily
occupational hazard over many years and “[was] significant enough to
substantially contribute to his mesothelioma.” In the end, it was for the jury to
determine whether to accept the expert opinion of Dr. Moline or the opposing
opinions of the defense experts.
The trial court here properly tailored the charge to the evidence because
neither plaintiff’s nor Union Carbide’s experts agreed on the level of exposure
48
to Union Carbide’s asbestos necessary to cause Edenfield’s mesothelioma.
See Komlodi v. Picciano, 217 N.J. 387, 409 (2014) (“[T]he trial court must
tailor the instructions on the law to the theories and facts of a complex case fo r
a jury to fully understand the task before it.” (citing Reynolds v. Gonzalez,
172 N.J. 266, 288-89 (2002))). As earlier noted, the court instructed the jury
on the essential features of Sholtis -- that, for medical causation purposes,
Edenfield’s exposure to Union Carbide’s asbestos could not be “a remote or
trivial cause having only an insignificant connection” to his contracting
mesothelioma, nor could liability be “based on casual or minimal contact with
[its] product” or “be imposed on mere guesswork.” No incantation of magic
“catch words” was necessary to satisfy the substantial factor test. See Sholtis,
238 N.J. Super. at 29.
At the charge conference, the trial court suggested that the Sholtis
frequency, regularity, and proximity test was appropriate at the summary
judgment stage, but not in instructing the jury. Plaintiff advanced that position
in her brief before this Court. We reject the position taken by the trial court
and plaintiff that there can be one standard used by the trial court in deciding
summary judgment and another standard used in instructing the jury. See Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 533 (1995) (“[T]he inquiry
involved in a ruling on a motion for summary judgment or for a directed
49
verdict necessarily implicates the substantive evidentiary standard of proof that
would apply at the trial on the merits.” (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986))). The substantive law governing the summary
judgment motion is the same law that guides the jury in making its ultimate
determination.
We conclude that the trial court correctly charged the jury on the core
concepts underlying medical causation in this case.
We refer to the Supreme Court Committee on Model Civil Jury Charges
for its consideration whether there is a need to modify the Model Charge on
proximate cause and substantial factor in the toxic tort setting.
V.
Accordingly, we reverse the judgment of the Appellate Division and
reinstate the verdict of the jury. We remand to the trial court to address any
remaining issues, consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICE PIERRE-LOUIS join in
JUSTICE ALBIN’s opinion. JUSTICE SOLOMON joins JUSTICE ALBIN’s
opinion in part. JUSTICE PATTERSON filed a dissent, which JUSTICE
SOLOMON joins in part. JUDGE FUENTES (temporarily assigned) did not
participate.
50
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.
JUSTICE SOLOMON, dissenting in part and concurring in part.
1
This appeal presented the Court with two questions. First, whether the
trial court erred in not using the exact language expressed in the Sholtis v.
American Cyanamid Co. test when it instructed the jury on medical causation.
See 238 N.J. Super. 8, 28-29 (App. Div. 1989). And second, whether a
manufacturer may reasonably rely on an employer to convey warnings and
instructions to its employees to satisfy the manufacturer’s duty to warn.
As to the first issue -- the medical causation charge -- I agree with the
majority that a trial court’s failure to use the specific language from Sholtis
when instructing the jury will not always lead to reversal where the trial court
adequately explains the standard to the jury. Accordingly, I join the majority’s
decision to reverse the Appellate Division on this issue.
As to the second issue -- adequate warnings -- I agree with the dissent
that, consistent with this Court’s decisions in Coffman v. Keene Corp., 133
N.J. 581, 602-03 (1993), and Theer v. Philip Carey Co., 133 N.J. 610, 622
(1993), a manufacturer could discharge its duty to warn by conveying adequate
warnings and information to employers for distribution to employees.
Therefore, I join the dissent and would affirm the Appellate Division on this
issue.
2
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.
JUSTICE PATTERSON, dissenting.
1
In this asbestos product liability appeal, the Appellate Division held that
defendant Union Carbide Corporation was denied a fair trial by virtue of errors
in the jury charge, the verdict sheet, and the trial court’s response to a jury
question.
First, the Appellate Division held that the trial court improperly charged
the jury with respect to the two categories of warnings and instructions at issue
in this case: the warnings that appeared on Union Carbide’s asbestos bags, and
the warnings, instructions, and other materials that Union Carbide sent to
Willis Edenfield’s employers for dissemination to employees. The appellate
court concluded that when the trial court charged the jury that Union Carbide
could not discharge its duty to warn by conveying adequate warnings and
information to the employers for distribution to employees, it ran afoul of this
Court’s decisions in Coffman v. Keene Corp., 133 N.J. 581, 602-03 (1993),
and Theer v. Philip Carey Co., 133 N.J. 610, 622 (1993). The Appellate
Division ruled that the trial court compounded that error by directing the jury
to consider only the warnings on asbestos bags when it answered the sole
question on the verdict sheet about the adequacy of Union Carbide’s warnings.
I consider the Appellate Division’s decision to be grounded in
longstanding and sound jurisprudence addressing asbestos product liability
failure-to-warn claims. In my view, the majority replaces the fair and
2
workable failure-to-warn standard for workplace exposure cases set forth in
Coffman and Theer with a confusing and unrealistic test that precludes a
finding that the manufacturer has met its duty to warn unless warnings on
asbestos bags, if feasible, were adequate. Moreover, the majority sanctions the
trial court’s jury interrogatories and its response to a jury question, which
guided the jury to limit its consideration of the adequacy of the warnings to the
asbestos bags alone. Yet that guidance contradicted the trial court’s own jury
charge and conflicts with the majority’s formulation of the governing test.
Second, the Appellate Division reaffirmed its holding in Sholtis v.
American Cyanamid Co., 238 N.J. Super. 8, 28 (App. Div. 1989), and this
Court’s holding in James v. Bessemer Processing Co., 155 N.J. 279, 304
(1998), that a three-factor standard governs the question of medical causation
in cases arising from toxic tort exposures in the workplace. Viewing general
causation concepts to be inadequate to guide juries in workplace toxic tort
cases, the Appellate Division in Sholtis and this Court in James expressly
required plaintiffs in toxic tort cases “to prove ‘an exposure of sufficient
frequency, with a regularity of contact, and with the product in close
proximity’ to the plaintiff.” James, 155 N.J. at 301 (quoting Sholtis, 238 N.J.
Super. at 28). Here, the trial court did not charge the jury to apply that test,
3
and the Appellate Division accordingly deemed the trial court’s jury
instructions to inadequately state the law.
In today’s decision, the majority dismisses the “frequency, regularity
and proximity” language set forth in Sholtis and James as nothing more than
an “incantation of magic ‘catch’ words” that a trial court is free to ignore.
Ante at ___ (slip op. at 49). It defaults to the general proximate cause test
without the Sholtis/James refinement of that standard for toxic tort cases, thus
altering the plaintiff’s burden of proof on the question of medical causation.
Ante at ___ (slip op. at 43-48). The majority insists that the general proximate
cause standard charged by the trial court and the test adopted in Sholtis and
James for workplace exposure cases are somehow one and the same. I view
the majority’s holding on the core question of causation to contravene our
precedent and muddle our law.
Because of the trial court’s errors, I conclude that Union Carbide did not
receive a fair trial and would affirm the determination of the Appellate
Division. I respectfully dissent.
I.
A.
In an asbestos failure-to-warn case, the plaintiff has the burden to prove
that
4
(1) without warnings or adequate warnings, the product
was dangerous to the foreseeable user and therefore
defective; (2) that the product left the defendant’s
control in a defective condition (without warnings or
adequate warnings); and (3) the lack of warnings or
adequate warnings proximately caused an injury to a
foreseeable user.
[Whelan v. Armstrong Int’l, Inc., 242 N.J. 311, 333
(2020).]1
Once proof of knowledge in the industry of a product’s harmful effects has
been shown, “the plaintiff must show that an adequate warning was not
provided.” James, 155 N.J. at 298.
The touchstone of that inquiry is whether the manufacturer’s conduct
was reasonable. “[I]n a failure-to-warn case, the element of reasonableness,
which is generally a negligence principle, comes into play in determining
whether a manufacturer failed to give a necessary warning or an adequate
warning.” Whelan, 242 N.J. at 333; see also Feldman v. Lederle Labs., 97 N.J.
429, 451 (1984) (“[O]nce the defendant’s knowledge of the defect is imputed,
strict liability analysis becomes almost identical to negligence analysis in its
focus on the reasonableness of the defendant’s conduct.”). The jury thus
1
Because this case is an “environmental tort action,” it is not governed by
N.J.S.A. 2A:58C-4, the failure to warn provision of the New Jersey Products
Liability Act, N.J.S.A. 2A:58C-1 to -11. See N.J.S.A. 2A:58C-6; Whelan, 242
N.J. at 331.
5
decides whether the plaintiff has met her burden to prove that the manufacturer
failed to provide an adequate warning, defined as “one that includes the
directions, communications, and information essential to make the use of a
product safe.” Whelan, 242 N.J. at 332 (quoting Freund v. Cellofilm Props.,
Inc., 87 N.J. 229, 243 (1981)).
In Coffman, this Court eased the burden on plaintiffs in failure-to-warn
product liability cases by adopting a heeding presumption -- “a rebuttable
presumption that had a warning been provided by the manufacturer, the
plaintiff would have heeded the warning by acting to minimize the risk of
injury.” 133 N.J. at 591. It also set forth guiding principles for failure-to-
warn claims arising from asbestos exposure in the workplace. Id. at 606-09.
The Court recognized in Coffman that warning claims in workplace
exposure cases are distinct from warning claims in consumer settings. Ibid.;
see also Grier v. Cochran Western Corp., 308 N.J. Super. 308, 317 (App. Div.
1998) (citing Coffman and holding that “[w]hat a manufacturer may be
reasonably required to do in order to transmit information to a consumer/user
of a product may be quite different from what is required of a manufacturer of
a product intended for use by many people over an extended period of time in
an industrial environment”).
6
The Court reiterated in Coffman that the manufacturer’s duty is to “take
reasonable steps to ensure that its warning reaches those employees” who use
the product in the workplace. 133 N.J. at 606. The Court recognized that a
manufacturer may in certain settings act reasonably when it relies on the
employer to convey warnings provided by the manufacturer to employees,
noting that
[r]eliance on supervisors and managers to become
apprised of safety hazards and to retransmit these
warnings orally to workers “rather than the individual
reading of a product warning, is a typical method by
which information is disseminated in the modern
workplace.” Thus, one must assume, in many
situations, that an employer must itself be warned in
order to give its employees adequate warnings as part
of its more encompassing duty to provide employees
with a safe and healthy workplace.
[Id. at 607 (quoting Ferebee v. Chevron Chem. Co., 736
F.2d 1529, 1539 (D.C. Cir. 1984)).]
The Court stated that “in the employment setting, the adequacy of a
warning with respect to unsafe products may require that they be
communicated to employers as well as employees; the adequacy of a warning
entails alerting the employer in order to alert the employee of the dangers of
the unsafe product.” Ibid.Refuting the defendant’s contention that the heeding presumption would
“result in asbestos manufacturers being liable for almost any injury caused by
7
a product,” id. at 603, the Court commented that its holding in Coffman did
not “posit an insuperable burden or . . . impose absolute liability on
manufacturers of defective products,” id. at 608. It observed that “in a given
case, the defendant may be able to establish that the employer’s conduct, not
the failure to warn, was the cause in fact of the injuries attributable to the
harmful product.” Ibid. The Court stated that “[a]n employer’s conduct, in
either thwarting effective dissemination of a warning or intentionally
preventing employees from heeding a warning, may be a subsequent
supervening cause of an employee’s injury that will serve to break the chain of
causation between manufacturer and employee,” and that “[i]f an employer’s
subsequent course of misconduct is an independent cause of an employee’s
injury, the absence of a warning itself may have too remote a causal
connection to the injury.” Ibid. (citing Brown v. U.S. Stove Co., 98 N.J. 155,
171-75 (1984)). It thus confirmed that a warning claim may fail if the
manufacturer provides adequate warnings to the employer, but the employer
fails to convey those warnings to employees. Ibid.The principles stated in Coffman were reiterated in its companion case,
Theer, 133 N.J. at 618-24. There, the Court stressed the manufacturer’s
“concurrent duty to warn employers, as well as employees” of a product’s
8
risks. Id. at 620-21. It stated that to satisfy the duty to warn, an asbestos
manufacturer could present evidence of
the adequacy of the warnings that were given, whether
they were directed to employers, whether they were
calculated to reach and inform employees who would
foreseeably be exposed to those products in the
workplace, and whether the employer would have
required or allowed employees to take precautionary
measures to overcome the risks of exposure to asbestos.
[Id. at 622.]
The Court thus recognized in Coffman and Theer that an asbestos
manufacturer has a duty to warn employers as well as employees, and that it
may in certain circumstances satisfy that duty by taking reasonable steps to
convey warnings, instructions, and other information to employers for
dissemination to employees. Coffman, 133 N.J. at 606-09; Theer, 133 N.J. at
622.
The drafters of the Restatement (Third) of Torts: Products Liability
similarly acknowledged that products intended for an industrial workplace
present issues not raised by consumer products, and endorsed the imposition of
a flexible reasonableness standard on the manufacturer’s conduct. Section 2(c)
of that Restatement provides that a product
is defective because of inadequate instructions or
warnings when the foreseeable risks of harm posed by
the product could have been reduced or avoided by the
provision of reasonable instructions or warnings by the
9
seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of
the instructions or warnings renders the product not
reasonably safe.
As the Restatement commentary observed, “[c]ommercial product sellers
must provide reasonable instructions and warnings about risks of injury posed
by products.” Id. at cmt. i. “Depending on the circumstances, Subsection (c)
may require that instructions and warnings be given not only to purchasers,
users, and consumers, but also to others who a reasonable seller should know
will be in a position to reduce or avoid the risk of harm.” Ibid. The
commentary noted that
[t]here is no general rule as to whether one supplying a
product for the use of others through an intermediary
has a duty to warn the ultimate product user directly or
may rely on the intermediary to relay warnings. The
standard is one of reasonableness in the circumstances.
Among the factors to be considered are the gravity of
the risks posed by the product, the likelihood that the
intermediary will convey the information to the
ultimate user, and the feasibility and effectiveness of
giving a warning directly to the user. Thus, when the
purchaser of machinery is the owner of a workplace
who provides the machinery to employees for their use,
and there is reason to doubt that the employer will pass
warnings on to employees, the seller is required to
reach the employees directly with necessary
instructions and warnings if doing so is reasonably
feasible.
[Ibid.]
10
The standard set forth in Coffman, Theer, and the Restatement by no
means minimized the importance of adequate warnings on asbestos packaging
when it was reasonably feasible to provide such warnings; indeed, it
emphasized the importance of direct communication with the employee if such
a step is reasonable under the circumstances, as well as the importance of
warnings and information provided to the employer. Coffman, 133 N.J. at
606-09; Theer, 133 N.J. at 621-22; Third Restatement § 2(c), cmt. i. That
standard, however, allowed for circumstances in which a manufacturer
satisfies its duty to adequately warn by communicating warnings and other
health and safety information to the employer. Coffman, 133 N.J. at 607;
Theer, 133 N.J. at 622; Third Restatement § 2(c), cmt. i. It thus incentivized
manufacturers to send into the workplace detailed information on the product’s
dangers, instructions, and training materials designed to reduce the risk. At
trial, it would be the jury’s task to determine whether the manufacturer acted
reasonably in light of the circumstances of the specific case.
B.
The majority maintains that its holding follows Coffman and Theer.
Ante at ___ (slip op. at 32-34).2 To the contrary, the majority opinion is at
2
The majority omits from its opinion language from the Coffman and Theer
opinions that is central to this appeal. See ante at ___ (slip op. at 32-34/). It
11
odds with those decisions. Compare ante at ___ (slip op. at 4-5; 31-34; 37-39;
42-43), with Coffman, 133 N.J. at 606-09, and Theer, 133 N.J. at 622. The
majority has changed the law, and it should say so.
In my view, the majority replaces our existing jurisprudence with a
framework that invites confusion. On the one hand, the majority imposes a
duty to place “adequate warnings on the product itself, when feasible,” as well
as to provide warnings to the employer. Ante at ___ (slip op. at 33). In that
regard, the majority recognizes that if it was impractical to provide the
information necessary to adequately warn on asbestos packaging, then the
manufacturer could meet its burden to adequately warn through alternative
means. Ibid. On the other hand, the majority holds that “an asbestos
manufacturer or supplier that places inadequate warnings on asbestos bags
makes no mention, for example, of the Court’s statement in Coffman that “the
adequacy of a warning entails alerting the employer in order to alert the
employee of the dangers of the unsafe product,” 133 N.J. at 607; the Court’s
recognition in Coffman that in a “modern workplace,” manufacturers typically
rely on supervisors and managers to retransmit warnings to employees, ibid.;
and the Court’s holding in Coffman that if an employer fails to convey such
warnings to employees, that failure may break the chain of causation in a
failure to warn case and preclude the imposition of liability, id. at 608-09.
Similarly, the majority omits from its discussion of Theer the Court’s holding
that an asbestos manufacturer seeking to demonstrate the adequacy of its
warnings can present evidence relating “to the adequacy of the warnings that
were given,” whether those warnings were “directed to employers,” or whether
those warnings were “calculated to reach and inform employees.” 133 N.J. at
622.
12
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.” Ante at ___ (slip op. at 4). That
language suggests that even if the employer takes reasonable steps to provide
the employer with adequate warnings that are reasonably intended to reach the
employees, it has breached its duty to warn unless adequate warnings appear
on asbestos bags. Under that formulation, the manufacturer would be liable
for failure to warn even if it was impractical to explain the dangers on a bag
and even if employees worked with asbestos that was no longer contained in
the packaging in which it was shipped. The majority denies that it adopts a
“one-size-fits-all” approach, ante at ___ (slip op. at 40), but that is precisely
what it does.
The majority’s contradictory language is at odds with the principle
articulated by this Court that in the complex field of product liability,
“statements delimiting the duty owed by a party in a strict-liability failure-to-
warn case involving complex issues of causation, proof, and preemption
should, in the interests of justice, be unmistakably clear.” Feldman, 132 N.J.
at 345-46. Moreover, the majority’s standard retroactively devalues the efforts
that some asbestos manufacturers have made, by sending information to
employers for distribution to employees, to ensure that employees were
13
properly warned, educated, and trained to minimize the risks of asbestos
products.
In my view, the majority prescribes an unwarranted departure from
Coffman and Theer and leaves the governing standard for asbestos litigation
failure to warn claims unclear and unfair.
C.
The majority approves the failure-to-warn questions on the trial court’s
verdict sheet and its guidance to the jury in response to the jury’s question ,
which are not even consistent with the new standard prescribed in today’s
decision.
As the majority notes, ante at ___ (slip op. at 9-14), the trial court
admitted substantial evidence regarding the warnings that appeared on asbestos
bags, as well as Union Carbide’s provision of Material Safety Data Sheets
(MSDSs), pamphlets, standards promulgated by the federal Occupational
Safety and Health Administration (OSHA), training materials, and other health
and safety documents to the entities that operated Edenfield’s workplace.
In the charge conference, Union Carbide requested that the trial court
charge the jury that,
[f]or purposes of deciding whether the warning given
was adequate, you may consider as part of the warning
the cautionary information given to employer with the
intention or purpose that the employer alert employees
14
to the dangers of the product and the proper methods of
mitigating the risks presented by the product.
The trial court declined that request. It charged the jury:
In the employment context, a manufacturer or supplier
of products that are used by employees is required to
take reasonable steps to ensure that its warning reaches
those employees. Satisfying that obligation may
require that warnings be communicated to employers as
well as employees.
In this case there has been evidence of warnings
provided both on labels on Union Carbide’s asbestos as
well as warnings and information provided to Mr.
Edenfield’s employers. In determining whether Union
Carbide satisfied its duty to warn, you may consider
both of these avenues of warning.
The duty to put an adequate warning on the product may
not be discharged by warnings and information to the
employer.
Over Union Carbide’s objection, the verdict sheet required the jury to
answer the following questions:
3.a. Has Plaintiff proven by a preponderance of the
credible evidence that Defendant Union Carbide failed
to provide an adequate warning or instruction on its
product rendering it not reasonably safe for its intended
and foreseeable use?
YES ____ NO ____ VOTE ____
3.b. Has Plaintiff proven by a preponderance of the
credible evidence that Defendant Union Carbide failed
to take reasonable steps to ensure that its warnings
reached Mr. Edenfield?
15
YES ____ NO ____ VOTE ____
Question 3.a. was the only question on the verdict sheet that addressed
the adequacy of Union Carbide’s warnings. It thus provided the jury with its
sole opportunity to consider both categories of Union Carbide’s warnings: the
warnings on its asbestos bags and the warnings, instructions, MSDSs,
pamphlets, OSHA standards, training materials, and other information that
Union Carbide provided to Edenfield’s employers.
During deliberations, the jury inquired as follows: “On question 3A is
adequate warnings/instructions only to the labels on the asbestos bags or does
it include other materials, that is to say M.S.D.S. and pamphlets[?]”
The trial court declined Union Carbide’s request that the jury be
instructed to refer to the trial court’s jury charge, which had addressed the
relevance of warnings and instructions that Union Carbide had given the
employers. Instead, the trial court told the jury, “the answer to that question is
that it deals with the asbestos bags as to question 3A. Thank you.” The jury
was thus instructed not to consider the warnings, MSDSs, pamphlets, OSHA
standards, training materials, and other information that Union Carbide had
provided to Edenfield’s employers when it determined whether plaintiff met
her burden to prove that Union Carbide’s warnings were inadequate.
16
I share the Appellate Division’s view that the adequacy-of-the-warning
portion of the verdict sheet misled the jury on a crucial question, warranting a
new trial. See Wade v. Kessler Inst., 172 N.J. 327, 341 (2002) (holding that
erroneous questions on a verdict sheet warranted reversal of the trial court’s
judgment and a new trial); Sons of Thunder v. Borden, Inc., 148 N.J. 396, 418
(1997) (holding that erroneous jury interrogatories may require reversal if
“they were misleading, confusing, or ambiguous”). I also concur with the
Appellate Division that the trial court’s response to the jury question
compounded that error. See Fayer v. Keene Corp., 311 N.J. Super. 200, 207
(App. Div. 1998) (ordering a new trial in an asbestos product liability case
because the trial court’s response to a jury question misled the jury as to the
determination that it was required to make); State v. Conway, 193 N.J. Super.
133, 157 (App. Div. 1984) (holding that “[w]hen a jury requests clarification”
during its deliberations, “the trial judge is obligated to clear the confusion”).
Here, the jury was clearly directed not to consider Union Carbide’s
warnings and instructions that were sent to the employer to inform Edenfield
and other employees when it decided whether Union Carbide’s warnings were
adequate. Those instructions were clearly contrary to the trial court’s jury
charge and the standard adopted by the majority. I respectfully submit that
17
even under the majority’s reformulation of the law, that instruction constituted
reversible error.
In sum, I agree with the Appellate Division that Union Carbide was
denied a fair trial by virtue of the jury charge, the verdict sheet, and the trial
court’s response to the jury’s question on the failure to warn issue. I would
grant a new trial on that basis alone.
II.
A.
I also agree with the Appellate Division that the trial court improperly
declined to charge the jury on the question of medical causation in accordance
with the “frequency, regularity and proximity” test of Sholtis, 238 N.J. Super.
at 30-31, and James, 155 N.J. at 299-301. I part company with the majority’s
conclusion that the general standard for proximate cause is an acceptable
substitute for the Sholtis and James standard in workplace exposure cases, and
that it is immaterial that the jury in this case was not charged to apply the
factors identified in Sholtis and James. See ante at ___ (slip op. at 43-50).
To the contrary, the “frequency, regularity and proximity” test of Sholtis
and James was adopted because this Court and the Appellate Division
recognized the need for a proximate cause charge that addressed the special
considerations present in a workplace exposure case.
18
Reversing the trial court’s grant of summary judgment to defendants in
an asbestos case, the Appellate Division in Sholtis addressed the appropriate
standard for determining whether workplace exposure to a particular product
was a proximate cause of the plaintiff’s injury. 238 N.J. Super. at 25-31. The
court reasoned that for a defendant to be held liable, “[t]he contact between a
plaintiff and the defective product must be sufficiently significant so that a
reasonable jury could determine that the product was a substantial factor in
bringing about the plaintiff’s injury.” Id. at 21.
The Appellate Division accordingly introduced to our law a requirement
previously imposed by the United States Court of Appeals for the Fourth
Circuit and other federal courts -- that “a plaintiff prove an exposure of
sufficient frequency, with a regularity of contact, and with the product in close
proximity; and that such factors should be balanced for a jury to find liability.”
Id. at 28-29 (citing Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156,
1162-63 (4th Cir. 1986)). The Appellate Division in Sholtis considered the
“frequency, regularity and proximity” test to be “well-reasoned, properly
focusing upon the cumulative effects of the exposure,” and to represent “a fair
balance between the needs of plaintiffs (recognizing the difficulty of proving
contact) and defendants (protecting against liability predicated on
guesswork).” Id. at 29.
19
In James, this Court noted that “[i]n toxic tort cases, the task of proving
causation is invariably made more complex because of the long latency period
of illnesses caused by carcinogens or other toxic chemicals.” James, 155 N.J.
at 300 (quoting Ayers v. Jackson Township, 106 N.J. 557, 585 (1987)). It
stated that “the burden of proving that the plaintiff’s exposure to the products
of any single defendant was a ‘substantial factor’ causing or exacerbating the
plaintiff’s illness is a formidable one.” Id. at 301. Noting federal courts’
broad acceptance of the “frequency, regularity and proximity” test adopted by
the Appellate Division in Sholtis, this Court held in James “that a plaintiff in
an occupational-exposure, toxic tort case may demonstrate medical causation
by establishing: (1) factual proof of the plaintiff’s frequent, regular and
proximate exposure to a defendant’s products; and (2) medical and/or
scientific proof of a nexus between the exposure and the plaintiff’s condition.”
Id. at 304.
The Court stressed in James that the standard “is not a rigid test with an
absolute threshold level necessary to support a jury verdict.” Id. at 302
(quoting Slaughter v. S. Talc Co., 949 F.2d 167, 171 & n.3 (5th Cir. 1991)).
Under the standard, however, a “plaintiff cannot rest on evidence which
merely demonstrates that a defendant’s asbestos product was present in the
workplace or that he had ‘casual or minimal exposure’ to it.” Kurak v. A.P.
20
Green Refractories Co., 298 N.J. Super. 304, 314 (App. Div. 1997) (quoting
Goss v. Am. Cyanamid Co., 278 N.J. Super. 227, 236 (App. Div. 1994)).
In the wake of Sholtis and James, “New Jersey courts, as well as courts
in a majority of other jurisdictions, look to the ‘frequency, regularity and
proximity’ of exposure as pronounced in Sholtis.” Est. of Brust v. ACF Indus.,
LLC, 443 N.J. Super. 103, 125 (App. Div. 2015) (citing James, 155 N.J. at
302-04; Sholtis, 238 N.J. at 28). Indeed, this Court recently reaffirmed the
standard of Sholtis and James, observing that:
[f]or medical causation, the plaintiff must show that the
injury was “proximately caused by exposure to
defendant’s asbestos product,” [Coffman, 133 N.J. at
594], that is, “the exposure [to each defendant’s
product] was a substantial factor in causing or
exacerbating the disease,” James, 155 N.J. at 299(alteration in original) (quoting Sholtis, 238 N.J. Super.
at 30-31). Medical causation requires proof of “‘an
exposure of sufficient frequency, with a regularity of
contact, and with the product in close proximity’ to the
plaintiff.” Id. at 301 (quoting Sholtis, 238 N.J. Super.
at 28).
[Whelan, 242 N.J. at 333-34.]
In short, the standard of Sholtis and James has clearly defined the core
inquiry on medical causation issues in toxic tort cases for more than thirty
years. Ibid.
21
B.
In this case, Union Carbide requested a jury charge that precisely tracked
the language of Sholtis and James:
[I]n order to prove medical causation, the Plaintiff must
prove that Mr. Edenfield was exposed to the
Defendant’s product with sufficient frequency, with a
regularity of contact, and with the product in close
enough proximity to show that the exposure to
Defendant’s product was a substantial contributing
factor to Mr. Edenfield’s mesothelioma. If you find
that Mr. Edenfield was not exposed at all to a
Defendant’s asbestos products, or that the level of
exposure to that Defendant’s product was casual or
minimal, then you must find for that Defendant.
The trial court declined Union Carbide’s request for that instruction.
The court told counsel that it had never given such a charge, that it relied
instead on the substantial factor test, and that it considered Sholtis and James
to provide only “the summary judgment standard,” not the standard for a jury
determination. Instead of directing the jury to apply the “frequency, regularity
and proximity” test of Sholtis and James, the trial court gave the jury a generic
medical causation charge devoid of any reference to the frequency, regularity
or proximity of Edenfield’s contact with Union Carbide’s products:
Under the second requirement of proximate cause,
Plaintiff must prove that Mr. Edenfield’s exposure to
Union Carbide’s asbestos was a proximate cause of his
mesothelioma. This is called the medical causation
portion of the proximate cause element.
22
By proximate cause it is meant that the failure to warn
was a substantial factor which singly, or in combination
with another cause, brought about the injury.
“Substantial” means that a product was an efficient
cause of the Plaintiff’s injury, and that it was not a
remote or trivial cause having only an insignificant
connection with the harm. Liability should not attach
based on casual or minimal contact with the product.
Liability should not be imposed on mere guesswork.
The fact that there may have been other independent or
contributing causes does not mean that there cannot be
a finding of proximate cause. Nor is it necessary for
the failure to warn to be the sole cause of Mr.
Edenfield’s injury.
It is not necessary for an exposure to be the sole or even
the dominant cause of Mr. Edenfield’s disease in order
to be considered a proximate cause. There can be more
than one proximate cause of an injury or disease, and
there can be many substantial factors in causing a
disease or death.
The word “substantial” refers not to quantity but to
quality. The fact that there may have been other
independent or contributing causes does not necessarily
relieve Union Carbide from liability.
Thus instructed, the jury received no direction to consider the three
factors that this Court has repeatedly stated are crucial to the question of
medical causation. As the Appellate Division properly recognized, the charge
substantially eased plaintiff’s burden of proof and allowed the jury to decide a
core issue without considering the relevant factors.
23
C.
The majority concedes that the trial court erred when it ruled that the
Sholtis and James test applies only to summary judgment, not to a jury’s
determination of medical causation at trial. Ante at ___ (slip op. at 49-50)
(“[W]e reject the position taken by the trial court and plaintiff that there can be
one standard used by the trial court in deciding summary judgment and another
standard used in instructing the jury.”). As the majority acknowledges, the
substantive standard applied in a summary judgment motion is, by definition,
the same standard that would apply to the jury’s determination if the case were
to be tried. Ante at ___ (slip op. at 49); see also Brill v. Guardian Life Ins. Co.
of Am., 142 N.J. 520, 533 (1995) (holding that “the inquiry involved in a
ruling on a motion for summary judgment or for a directed verdict necessarily
implicates the substantive evidentiary standard of proof that would apply at the
trial on the merits” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986))).
Notwithstanding its rejection of the trial court’s rationale for omitting
the standard of Sholtis and James from its jury charge, however, the majority
nonetheless endorses the trial court’s generic causation charge. Ante at ___
(slip op. at 48-49). It insists that the trial court “instructed the jury on the
essential features of Sholtis,” ante at ___ (slip op. at 49), despite the trial
24
court’s undisputed omission of all three of the medical causation factors
prescribed in that decision, see Sholtis, 238 N.J. Super. at 28-29. The majority
dismisses the three-factor test of Sholtis and James as “merely an articulation
of what constitutes a substantial factor for proximate cause purposes in an
occupational exposure setting,” ante at ___ (slip op. at 48), as if that standard
represented nothing more than an exercise in semantics. To the surprise, no
doubt, of courts and counsel who have long viewed this Court’s chosen terms
to state the governing law, the majority pronounces that “[n]o incantation of
magic ‘catch’ words was necessary to satisfy the substantial factor test.” Ante
at ___ (slip op. at 49).
When this Court announces a substantive standard such as the
“frequency, regularity and proximity” medical causation test of Sholtis and
James, the factors it identifies and the language it uses are integral to its
holding. Jury charges on the issue addressed by the Court should accurately
reflect the governing standard. See Wade, 172 N.J. at 341 (“[J]ury charges
must outline the function of the jury, set forth the issues, correctly state the
applicable law, and plainly spell out how the jury should apply the legal
principles to the facts as it may find them[.]” (second alteration in original)
(quoting Velazquez v. Portadin, 163 N.J. 677, 688 (2000))). Today’s decision
25
sends the message that a trial court need not charge a jury in accordance with a
standard that this Court prescribes if it prefers a different test.
I do not view the majority’s after-the-fact justification for the trial
court’s error to advance our jurisprudence in this important area of the law. I
concur with the Appellate Division’s conclusion that the trial court’s medical
causation charge denied Union Carbide a fair trial.
III.
I would affirm the Appellate Division’s determination. I respectfully
dissent.
26