DONNA ROWE, ETC. VS. BELL & GOSSETT COMPANY (L-2353-14, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4530-14T2
DONNA ROWE, individually and
as Executrix and Executrix
ad Prosequendum of the Estate
of RONALD ROWE,
Plaintiff-Appellant,
v.
BELL & GOSSETT COMPANY, a
subsidiary of ITT Industries;
BORG WARNER MORSE TEC, f/k/a
Borg Warner; BRYANT
MANUFACTURING, n/k/a Carrier
Corp.; BURNHAM LLC, individually
and as successor to Burnham
Corporation, individually and as
successor-in-interest to Federal
Boiler and Radiator Co.; CRANE
CO., individually and as
successor to Jenkins Valves, Inc.,
a/k/a Jenkins Bros.; CRANE
PUMPS & SYSTEMS, INC.; DANA
COMPANIES, LLC f/k/a Dana
Corporation, individually and as
successor-in-interest to Victor
and Spicer; ECR INTERNATIONAL,
INC., as successor-in-interest
to Dunkirk Radiator Corporation;
GENERAL ELECTRIC COMPANY;
GENERAL PLUMBING SUPPLY, INC.,
as successor-in-interest to
Ridgewood Corp.; HB SMITH CO.,
INC.; HONEYWELL INTERNATIONAL,
INC., f/k/a Allied Signal,
Inc., as successor-in-interest
to The Bendix Corporation;
J.H. FRANCE REFRACTORIES
COMPANY; JOHNSON CONTROLS,
INC., individually and
as successor-in-interest to York
International Corp.; LENNOX
FURNACE CO., a/k/a Lennox
Industries; NUTLEY HEATING &
COOLING SUPPLY COMPANY; PEERLESS
INDUSTRIES, INC., f/d/b/a
Peerless Heater Co.; RIDGEWOOD
CORP.; SID HARVEY INDUSTRIES,
INC.; TRANE US, INC., as
successor to American Standard
Inc.; UNION CARBIDE CORP.; WEIL-
MCLAIN COMPANY, INC.; COMPUDYNE
CORPORATION, individually and
as Successor to York-Shipley;
NEW JERSEY PLUMBING GROUP, LLC,
d/b/a Blackman Plumbing Supply
Company, Inc., as successor-in-
interest to Orange County
Plumbing Supply Company and
Ridgewood Corporation; ORANGE
COUNTY PLUMBING GROUP, LLC, as
successor-in-interest to Orange
County Plumbing Supply Co. and
Ridgewood Corporation; YORK
INTERNATIONAL, INC.,
Defendants,
and
HILCO, INC., as successor-in-
interest to Universal
Engineering Co., Inc.,
Defendant-Respondent.
Argued February 14, 2018 – Decided June 29, 2018
2 A-4530-14T2
Before Judges Alvarez, Nugent, and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No.
L-2353-14.
Amber R. Long argued the cause for appellants
(Szaferman, Lakind, Blumstein & Blader, PC,
and Levy Konigsberg, LLP, attorneys; Robert
E. Lytle and E. Elizabeth Sweetser, on the
briefs).
Patricia M. Henrich argued the cause for
respondent (Reilly, Janiczek, McDevitt,
Henrich & Cholden, PC, attorneys; Patricia M.
Henrich, Brandy L. Harris and Josette F.
Spivak, on the briefs).
McCarter & English, LLP, and Gibbons, PC,
attorneys for amicus curiae Honeywell
International, Inc. (John C. Garde, of counsel
and on the joint briefs; Kim M. Catullo and
Ethan D. Stein, of counsel; Christopher Rojao
and Elizabeth Monahan, on the joint briefs).
Caruso Smith Picini, PC, attorneys for amici
curiae Union Carbide Corporation and
CertainTeed Corporation (Richard D. Picini and
Anthony J. Caruso, on the joint briefs).
Eckert Seamans Cherin & Mellot, LLC, attorneys
for amici curiae A.O. Smith and Superior
Lindgerwood Mundy (David Katzenstein, on the
joint briefs).
Marshall Dennehey Warner Coleman & Goggin,
attorneys for amici curiae Kaiser Gypsum
Company, Riley Power, Jaeger Lumber and Supply
Company (Paul C. Johnson, on the joint
briefs).
Pascarella DiVita, PLLC, attorneys for amici
curiae Ingersoll Rand Company, Trane US, Inc.,
General Cable Corporation, and Rheem
3 A-4530-14T2
Manufacturing Company (Lisa M. Pascarella and
Stephanie A. DiVita, on the joint briefs).
Reilly, Janiczek, McDevitt, Henrich & Cholden,
PC, attorneys for Amicus Curiae Aurora Pump
Company (Patricia M. Henrich and Brandy L.
Harris, on the joint briefs).
Tannenbaum Keale, attorneys for amici curiae
BorgWarner Morse TEC LLC, Foster Wheeler LLC,
survivor to a merger with Foster Wheeler
Corporation and Foster Wheeler Energy
Corporation (Christopher J. Keale, on the
joint briefs).
Lynch Daskal Emery, LLP, attorneys for amicus
curiae Georgia-Pacific LLP (Diane M. Pompei,
on the joint briefs).
McElroy, Deutsch, Mulvaney & Carpenter, LLP,
attorneys for amici curiae Burnham LLC and
Eaton Corporation (Nancy McDonald, on the
joint briefs).
McGivney & Kluger, attorneys for amici curiae
Ductmate Industries, The Fairbanks Company,
Herman Sommer, and Magid Glove and Safety
(Thomas McNulty, on the joint briefs).
PER CURIAM
Donna Rowe (plaintiff), individually on her per quod claim
and as executrix and executrix ad prosequendum of the estate of
Ronald Rowe (Rowe), appeals an April 27, 2015 judgment of
$304,152.70 plus prejudgment interest. We reverse and remand for
a new trial on the issue of apportionment.
4 A-4530-14T2
I.
Rowe died of mesothelioma on April 8, 2015, weeks after the
jury verdict being appealed. The complaint originally named
twenty-seven defendants, including Hilco Inc., the successor-in-
interest to Universal Engineering Co., Inc. (Universal). Twelve
defendants were granted summary judgment, four were dismissed, and
two never appeared and the claims against them were abandoned.
Eight defendants settled their claims before trial, namely:
(1) Borg Warner Morse Tec (Borg Warner); (2) Burnham, LLC
(Burnham); (3) Dana Companies, LLC (Dana); (4) ECR International,
Inc. (ECR); (5) Honeywell International, Inc. (Honeywell);
(6) Peerless Industries, Inc. (Peerless); (7) Trane US, Inc.
(Trane); and (8) Weil-McLain Company, Inc. (Weil-McLain)
(collectively, the settling defendants). The parties signed
stipulations of dismissal as to Trane on November 21, 2014, as to
Honeywell on February 17, 2015, and as to ECR on June 23, 2015.
A stipulation of dismissal as to Peerless was filed months later,
and as to Borg Warner, Burnham, Dana, and Weil-McLain, months
after that.
Only Universal participated in the trial. The company had
cross-claimed for contribution against all co-defendants under the
Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 to -5, and
5 A-4530-14T2
the New Jersey Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to
-5.8 (Act).
The jury found that Rowe's exposure to a product sold or
distributed by Universal was a substantial factor in causing his
mesothelioma. The jury awarded compensatory damages of $1.5
million, allocated (1) $250,000 to Rowe for damages until the time
of trial, (2) $500,000 to Rowe for future damages, (3) $250,000
to plaintiff for past loss of services and consortium, and
(4) $500,000 to plaintiff for future loss of services and
consortium.
The jury also found that Rowe's exposure to the products of
the settling defendants was a substantial factor in causing his
mesothelioma. The jury allocated twenty percent of the damages
to Universal and apportioned the remaining eighty percent between
the settling defendants as follows: (1) five percent to Borg
Warner; (2) fourteen percent to Burnham; (3) six percent to Dana;
(4) nine percent to ECR; (5) fourteen percent to Honeywell;
(6) twelve percent to Peerless; (7) ten percent to Trane; and
(8) ten percent to Weil-McLain. The judge denied plaintiff's
motion for judgment notwithstanding the verdict and for a new
trial.
6 A-4530-14T2
II.
Rowe, who was born on July 30, 1931, worked as an automobile
mechanic for a couple of years in the early 1950s. From 1954
until 1985, however, he worked on heating equipment, furnaces, and
new boilers. In the early 1960s, he established a business
installing, repairing, and servicing boilers. Rowe operated that
business until 1985 when he became disabled. Plaintiff testified
that he came home from work every day with grayish dust on his
clothes. Rowe was diagnosed with mesothelioma in February or
March 2014.
It is not disputed that Rowe was repeatedly exposed to
asbestos-containing dry furnace cement over three decades. That
cement, intended for use on various types of boilers and furnaces,
had to be mixed with water to create a paste. It was sold in
fifty-pound bags. Rowe testified that he used Universal cement
throughout his career both before and while in business, and
estimated he used approximately 1000 bags of the product.
Rowe generated dust when he mixed the cement. He used the
paste to seal exhaust pipes, burners, and other boiler and furnace
components to make them air-tight. All the new asbestos cement
that he used for the sealing work he performed hundreds of times
was bought from Universal.
7 A-4530-14T2
During regular cleaning and repair work, Rowe also generated
dust when he removed hardened cement. Typically, this hardened
cement was manufactured by Universal as he had applied it during
earlier service calls for regular customers.
In the course of replacing boilers, Rowe would sometimes
disassemble an old unit. This too created asbestos dust. He had
no knowledge where that asbestos dust originated. On occasion,
he took apart boilers that were wrapped in chicken wire covered
in asbestos cement. When Rowe removed a steam boiler, he would
sometimes rip out pipe work covered with asbestos material. On a
couple of occasions, he removed old pipe covering during jobs that
did not involve removing a boiler.
Rowe recalled removing old boilers manufactured by Dunkirk,
Weil-McLain, Burnham, and American Standard. He could not recall
how often he removed these boilers or how many of them needed to
be broken apart.
When installing new boilers, Rowe would sometimes have to
disassemble the units "[b]ecause you couldn't get it in the
basement otherwise." He installed new boilers by Dunkirk, American
Standard, and Peerless. Rowe estimated that he dismantled Dunkirk
and Peerless boilers about seventy or seventy-five times each, and
American Standard about sixty or sixty-five times. He believed
8 A-4530-14T2
that the material holding the boiler sections together contained
asbestos.
Rowe also testified to asbestos exposure unrelated to his
employment. He "did a lot of brake jobs; clutch jobs; gaskets,
head gaskets, manifold gaskets." He did "at least a hundred"
brake jobs from 1948 to the mid-1970s using Bendix brakes. He
might have occasionally installed Delco brakes, but he bought
Bendix about eighty percent of the time.
During Rowe's two years as an automobile mechanic in the
early 1950s, he worked with five or six head gaskets manufactured
by Victor. As a mechanic and later, on his own motor home, Rowe
installed approximately two dozen intake manifold gaskets and
about thirty-two exhaust manifold gaskets manufactured by Victor.
The gaskets came packaged together in a kit, and Rowe believed
that the dust on them was asbestos dust. In his answers to
interrogatories, he said working on brakes, clutches, and gaskets
generated asbestos-containing dust.
Plaintiff's expert opined that Rowe's mesothelioma was caused
by his exposure to asbestos. All types of asbestos, including
chrysotile, in her opinion, could cause the disease. She
considered it an unsafe product in any circumstance, and stated
that even a low level of exposure is capable of causing
mesothelioma and that it has a long latency.
9 A-4530-14T2
In the expert's opinion, Rowe's use of Universal cement,
containing chrysotile asbestos, was a substantial factor in
causing his mesothelioma. She characterized his exposure as very
substantial. Although on cross-examination she agreed that all
of Rowe's contacts with asbestos were substantial contributing
factors to his mesothelioma, she held to her conclusion that his
use of Universal cement was the predominant exposure to asbestos
contributing to his disease.
Universal's expert testified that chrysotile does not cause
malignant mesothelioma at any dose. Although Rowe was exposed to
asbestos from about 1000 pounds of Universal cement, he considered
it to be "low level of cumulative exposure and [] not sufficient
to put a – pose a risk for the development of malignant
mesothelioma in this man." The expert believed more significant
contacts with asbestos were required to cause malignant
mesothelioma. In contrast with Rowe's expert, Universal's expert
opined that Rowe's mesothelioma was caused by the thermal system
insulating materials packaging the units with which he worked,
rather than the Universal cement. He said Rowe's disease was
caused by pipe covering material and possibly boiler covering
insulation, because during the relevant time period, many were
friable and contained amosite asbestos.
10 A-4530-14T2
A second Universal expert also testified that Rowe's exposure
from Universal products "was negligible, insignificant, de
minimis, profoundly less exposure, a tiny fraction of exposure of
what he would have received from working with pipe insulation and
boiler work" because he used Universal cement in such small
quantities over the years. His opinion was based on Rowe mixing
Universal cement products, as opposed to exposure related to Rowe's
removal and replacement of that product during annual service
visits.
III.
To support its demand for apportionment under the Act,
Universal presented evidence to the jury establishing liability
on the part of the eight settling defendants. At the start of the
trial, Universal sought to have the settling defendants ruled
unavailable for purposes of admission of certain answers to
interrogatories and deposition transcripts.
Universal sent notices in lieu of subpoena to each of the
eight, demanding the appearance of a corporate representative to
provide testimony. Each notice stated that "the enclosed Notice
in Lieu of Subpoena shall remain in effect in the event your client
settles or is dismissed from the case."
Universal certified that none of the settling defendants
would produce a witness at trial, despite the notices:
11 A-4530-14T2
(1) Borg Warner. Counsel for Borg Warner advised counsel for
Universal by telephone that the company "is not located in New
Jersey and therefore will not appear at trial voluntarily."
(2) Burnham. Burnham's counsel emailed that "Burnham's
corporate rep[resentative] does not live in NJ and will not be
appearing at trial."
(3) Dana. Company representatives "do not reside within this
jurisdiction and thus are unavailable for the purposes of providing
testimony at trial."
(4) ECR. Counsel for ECR wrote to counsel for Universal that
"ECR's designated corporate representative works and resides in
upstate New York" and "[d]ue to personal and business commitments,"
was "unavailable to travel to New Jersey for a personal appearance
at trial of this matter."
(5) Honeywell. Counsel for Honeywell in writing indicated
that "Honeywell's corporate-representative-witness, Mr. Joel
Cohen, resides in the State of California, and due to his being
outside this jurisdiction, is 'unavailable' pursuant to the Court
Rules and Rules of Evidence."
(6) Peerless. Counsel for Universal confirmed by phone that
"its representatives do not reside within this jurisdiction and
thus are unavailable for the purposes of providing testimony at
trial."
12 A-4530-14T2
(7) Trane. Trane's counsel emailed that "we do not have any
available witness with personal knowledge relevant to your
request."
(8) Weil-McLain. Counsel "[d]uring a telephone
conversation . . . confirmed that its representatives do not
reside within this jurisdiction and thus are unavailable for the
purposes of providing testimony at trial."
Plaintiff's counsel objected to the admission of the
deposition of a representative of Borg Warner who had testified
in a different Middlesex County matter, on the grounds that
Universal had not proven the unavailability of the witness, and
plaintiff was not present at his deposition. Counsel also argued
that Universal "had not only the opportunity but the obligation
to come to this [c]ourt to compel compliance with the notice in
lieu of subpoena" served on Borg Warner.
Plaintiff's counsel raised essentially the same objection to
the other settling defendants. Universal's counsel represented
that "as it relates to unavailability . . . the history of the
litigation is that, given the breadth of the asbestos litigation,
the various jurisdictions, these corporate representatives
typically are produced and they're produced in a few cases but not
in every single case." The trial court accepted the representation
13 A-4530-14T2
of counsel that the representatives were outside the jurisdiction
of the court and unavailable.
During trial, Universal read sections of testimony from the
depositions of corporate representatives of Borg Warner, Burnham,
Dana, ECR, Peerless, and Weil-McLain. However, the trial court
ultimately disallowed deposition readings from representatives of
Honeywell and Trane because those two settling defendants were
based in New Jersey and, thus, available to appear at trial.
Defense counsel argued that the deposition testimony of Trane and
Honeywell representatives was admissible under N.J.R.E. 803(b),
even if they were available, because they were parties: "Although
this defendant is not currently a party, they are a party—or not
an active party. They're a party as to us. We have an active
cross claim against them." The court disagreed, stating, "I read
it to the contrary."
Plaintiff opposed Universal's application to read answers to
interrogatories from the settling defendants, arguing that
interrogatory answers were only admissible against parties and
that the settling defendants were no longer parties even though
Universal would be entitled to an offset of liability. The court
held that, although the settling defendants were "not active"
parties, Universal "may put in proofs as to those settled
defendants provided that it has asserted cross-claims" against
14 A-4530-14T2
them. The court allowed the admission of answers to
interrogatories by the settling defendants, whether in the present
case or another matter, as long as they were certified.
Based on these rulings, Universal read selected interrogatory
answers of all eight settling defendants into the record. Some
of the interrogatory answers had been served in the Rowe matter,
some in other Middlesex County matters, and some in matters outside
New Jersey.
In total, the interrogatory answers and deposition testimony
excerpts that were allowed (collectively, the settling defendant
evidence), provided the following facts regarding the settling
defendants:
(1) Borg Warner sold, between 1928 and 1986, "[m]anual clutch
assemblies incorporating clutch facings of others, some of which
contained encapsulated chrysotile asbestos." It had "no
information as to which of its automotive friction products, if
any, were distributed or sold in New Jersey." Borg Warner's clutch
facings never contained any warnings about the hazards of asbestos.
(2) Burnham manufactured residential boilers that contained
asbestos-containing components, starting in the late 1930s or
early 1940s and ending about 1985. Burnham boilers had no warning
labels about the dangers of asbestos. The applicable installation
15 A-4530-14T2
instructions called for the use of asbestos-containing cement to
seal certain areas.
(3) Dana became the successor in interest to the Victor
Gasket and Manufacturing Company (Victor), which made "gasket
products predominantly for use in passenger cars, trucks, off-high
vehicles and leisure boat applications," only some of which
contained asbestos. The interrogatory answers Dana served in this
matter stated:
Victor Products Division made thousands of
different gaskets for vehicular applications
that varied in many ways, such as size, shape,
and physical characteristics according to type
of engine, size of engine, number of
cylinders, make of engine, year, and model of
engine. Some, but not all, of the gaskets
contained asbestos.
The earliest Dana placed any warning on an asbestos-containing
product was 1984.
(4) ECR was the successor in interest for Dunkirk, which
manufactured "[s]ectional cast iron boilers, residential." From
1928 until sometime in the 1980s, these boilers contained asbestos
rope, flat asbestos fiber gaskets, and asbestos insulation. In
the initial decades, pieces of the boiler would be assembled at
its destination and furnace cement applied after that. By the
mid-1960s, the boilers were typically "completely, fully
16 A-4530-14T2
assembled, crated and shipped that way from the factory." These
boilers contained no asbestos warnings.
(5) Honeywell was the successor in interest for Bendix,
which manufactured "asbestos-containing friction products for
automotive uses," including brake linings and disc brake pads that
included chrysotile asbestos fibers. These boxes had a warning
on the hazards of asbestos from 1973 onward.
(6) Peerless manufactured cast iron boilers "for residential
and light commercial applications, some of which may have
incorporated a small quantity of asbestos-containing materials."
It provided the following interrogatory answer in a different
Middlesex County matter:
No one model boiler used all of such
components at any one time, and many never
used any such component. In general, however,
based upon the records and information
presently available, Peerless believes that
between the 1930's and early 1980's, some
models of boilers sold under the Peerless name
may have included millboard, which was
completely encapsulated and enclosed in cast
iron jackets, asbestos rope or gaskets which
were compressed between boiler sections to
create a tight seal, and asbestos cement,
which, at times, may have been used in
conjunction with the rope to prevent a carbon
monoxide leak from the seal between the
sections.
Peerless supplied pre-cut pieces of asbestos rope in the 1960s and
1970s for use with boiler installation. Use of the rope was phased
17 A-4530-14T2
out about 1983. Peerless also supplied cement for use in
installation, which might have been wet or a dry mix. Peerless
boilers had no warnings about asbestos.
(7) Trane was successor in interest to American Standard,
which "manufactured a line of heating products, low pressure cast
iron boilers, flash burners, and furnaces for use in residential
and smaller commercial, institutional and industrial settings."
As explained in interrogatory answers:
American Standard built and shipped smaller
units from the factory as complete packaged
units. Larger boilers were shipped in
sections for assembly and jacketing in the
field.
American Standard boilers were specially
machined so that they did not require rope or
gasket to seal between the cast iron sections.
Trane acknowledged that, over the course of ninety years, American
Standard manufactured products using "components manufactured by
third parties," and that, "[d]uring limited times, some of these
components may have had internal parts manufactured by these third
parties, that contained encapsulated chrysotile asbestos fibers."
American Standard provided no warnings regarding asbestos.
(8) Weil-McLain, from the 1920s onward, manufactured "small
cast iron gas, oil and electric boilers for use in residential and
commercial settings," some of which contained asbestos-containing
products. Weil-McLain boilers used wet asbestos cement, asbestos
18 A-4530-14T2
rope, gaskets and asbestos-containing millboard liners. Most of
these parts were manufactured by third parties and, for the
convenience of customers, were shipped with Weil-McLain boilers
for use in installation. No warnings about asbestos were on the
boilers.
At the close of Universal's case, plaintiffs (referring to
Rowe and plaintiff) moved to dismiss Universal's claims against
the settling defendants under the Act, contending that no
sufficient basis for allocation had been established. The court
rejected plaintiffs' allocation argument, stating:
No, the [c]ourt is satisfied because the—
although there—you know, one could contend
that there were no expert proofs to assist the
jury on allocations, there were factual proofs
that were presented, and it ultimately will
be up to the jury to determine whether they
are sufficient. So that application is
denied.
Plaintiff raises the following points on appeal:
POINT I
THE TRIAL COURT ERRED IN ALLOWING THE NON-
SETTLING DEFENDANT, UNIVERSAL, TO INTRODUCE
ANSWERS TO INTERROGATORIES AND TESTIMONY OF
THE SETTLING DEFENDANTS FROM PRIOR PROCEEDINGS
BECAUSE SUCH EVIDENCE IS HEARSAY THAT DID NOT
FALL WITHIN ANY EXCEPTION TO THE RULE AGAINST
HEARSAY.
A. THE INTERROGATORY ANSWERS AND
TESTIMONY OF CORPORATE REPRESENTATIVES
OF THE SETTLING DEFENDANTS WERE NOT
ADMISSIBLE UNDER R. 4:16-1(B) OR N.J.R.E.
19 A-4530-14T2
803(B)(1)(B) BECAUSE THEY WERE NO LONGER
PARTIES AT THE TIME OF TRIAL.
B. AT THE TIME OF TRIAL, UNIVERSAL WAS
NO LONGER ADVERSE TO THE SETTLING
DEFENDANTS AND THE INTERROGATORY ANSWERS
AND TESTIMONY FROM PRIOR PROCEEDINGS WERE
NOT USED AGAINST THE SETTLING DEFENDANTS,
THEREFORE, NEITHER R. 4:16-1(B) NOR
N.J.R.E. 803(B)(1)(B) WAS APPLICABLE.
C. UNIVERSAL FAILED TO DEMONSTRATE
THAT THE CORPORATE REPRESENTATIVES OF THE
SETTLING DEFENDANTS WERE UNAVAILABLE
PURSUANT TO N.J.R.E. 804(A) AND THE CASE
LAW CONSTRUING THAT RULE.
POINT II
THE TRIAL COURT ERRED IN INSTRUCTING THE JURY,
CONTRARY TO THE SUPREME COURT'S OPINION IN
SHANKMAN V. STATE, 184 N.J. 187 (2005), THAT
PLAINTIFF HAD "SETTLED" HIS CLAIMS WITH CO-
DEFENDANTS AGAINST WHICH THE REMAINING
DEFENDANT ASSERTED CROSS CLAIMS, THUS IMPLYING
THAT THE SETTLING DEFENDANTS HAD ACKNOWLEDGED
RESPONSIBILITY FOR PLAINTIFF'S MESOTHELIOMA.
POINT III
THE TRIAL COURT'S DENIAL OF PLAINTIFF'S JNOV
MOTION RESULTED IN A CLEAR MISCARRIAGE OF
JUSTICE.
A. BOILER EXPOSURES.
1. ECR ("DUNKIRK")
a. SERVICE WORK
b. INSTALLATION WORK
c. REMOVAL WORK
2. WEIL MCLAIN
a. SERVICE WORK
b. INSTALLATION WORK
c. REMOVAL WORK
20 A-4530-14T2
3. BURNHAM
a. SERVICE WORK
b. INSTALLATION WORK
c. REMOVAL WORK
4. PEERLESS
a. SERVICE WORK
b. INSTALLATION WORK
c. REMOVAL WORK
5. TRANE ("AMERICAN STANDARD")
6. CONCLUSION – BOILER EXPOSURES
B. FRICTION EXPOSURES.
1. BORG WARNER
2. HONEYWELL (BENDIX)
3. VICTOR (DANA)
4. CONCLUSION – FRICTION
EXPOSURES
C. CONCLUSION.
IV.
The trial judge erred in admitting the settling defendant
evidence. It was not exempt from the general prohibition against
admission of hearsay. We do not frame the issue in terms of
"party" status: the question is whether the answers to
interrogatories and depositions should have been admitted given
the rules excluding hearsay, and the manner in which the judge
resolved the question of witness unavailability. The answers to
interrogatories were inadmissible because they were not offered
against the settling defendants, regardless of whether they were
still parties at the time of trial. The court decided the settling
21 A-4530-14T2
defendants were unavailable merely because they declined to appear
without having been released either by counsel or the court.
A.
In ruling, the trial judge did not identify the evidence or
court rule that made certified interrogatory answers admissible.
We presume she relied upon a combination of (1) Rule 4:17-8(a),
which states that "[a]nswers to interrogatories may be used to the
same extent as provided by . . . R. 4:16-1(b) for the use of the
deposition of a party," and (2) Rule 4:16-1(b), which provides:
The deposition of a party or of any one who
at the time of taking the deposition was an
officer, director, or managing or authorized
agent, or a person designated under R. 4:14-
2(c) or R. 4:15-1 to testify on behalf of a
public or private corporation, partnership or
association or governmental agency which is a
party, may be used by an adverse party for any
purpose against the deponent or the
corporation, partnership, association or
agency.
Assuming the trial court reasoned that the settling defendants,
though "not active" parties, were nevertheless "adverse" to
Universal and that the evidence was used "against" them, then the
scope of the rulings were inconsistent with proper application of
the rules.
Rule 4:17 applies to interrogatory answers given in the New
Jersey matter being tried. Nothing in the court rules suggests
that interrogatory answers from litigation pursued in various
22 A-4530-14T2
jurisdictions around the country fall within their scope.
Plaintiff objected on these grounds, but the trial court held that
any certified interrogatory answers could be admitted.
Universal contends that the settling defendant evidence, both
interrogatory answers and deposition excerpts, was also admissible
under N.J.R.E. 803(b)(1). That rule includes the statement of a
"party opponent" among those "statements [] not excluded by the
hearsay rule" if it is "offered against a party" and is "the
party's own statement, made either in an individual or in a
representative capacity."
If the settling defendant evidence was admissible under
N.J.R.E. 803(b)(1), then interrogatory answers from around the
country would be admissible. Indeed, if N.J.R.E. 803(b)(1) were
applicable, then it would also apply to deposition testimony and
the trial court should not have excluded the testimony of Trane
and Honeywell representatives on the grounds that those New Jersey
entities were available to appear.
Both Rule 4:16-1(b) and N.J.R.E. 803(b)(1) have the common
prerequisite that statements within the scope of the rule must be
offered "against" the statement-maker. Significantly, use of the
evidence against the statement-maker is required, regardless of
whether the statement-maker is, might be, or is not a party at the
time of trial.
23 A-4530-14T2
For example, if a Weil-McLain representative had stated in
an interrogatory answer or at a deposition that the asbestos cement
sold by Universal was frequently used by servicemen such as Rowe
when installing and servicing Weil-McLain's boilers, that
statement could not be admitted under either Rule 4:16-1(b) or
N.J.R.E. 803(b)(1)(B) because it would be a statement against
Universal rather than the statement-maker, Weil-McLain. This
would be true regardless of whether Weil-McLain settled or was
present and participating at the trial.
At the time of trial, the settling defendants' claims were
fully resolved. They had nothing to gain or lose from the outcome
of the trial or any possible apportionment of liability. Universal
had no right to any possible future recovery from the settling
defendants, regardless of how well it carried its burden of proof.
Rather, Universal stood to gain only a reduction in the damages
it might ultimately owe as a result of the trial of plaintiffs'
claims against it.
Plaintiff, on the other hand, stood to lose a significant
portion of the jury's quantum of damages if the jury accepted the
settling defendant evidence from Universal as minimizing its
responsibility. The only affirmative claim presented to the jury
and resolved by the jury's verdict was plaintiff's claim against
Universal, and the jury's decisions as to the settling defendants
24 A-4530-14T2
were significant only because they impacted that claim. Universal
could maximize the impact of that evidence while leaving plaintiff
little recourse. In these circumstances, the settling defendant
evidence was offered only against the plaintiff.
All of the parties, for different reasons, rely on Young v.
Latta, 123 N.J. 584 (1991). The Young Court held that, when a
plaintiff settles with a defendant in a multi-defendant case, "the
court should dismiss a non-settler's cross-claim for contribution
as a matter of law as a result of the settlement, although the
credit survives." Id. at 591 (citing Tefft v. Tefft, 192 N.J.
Super. 561, 570 (App. Div. 1983)).
Plaintiff argues this holding "makes clear" that a settling
defendant "is no longer a party to the action." Universal argues
that, to the contrary, because the Young Court "recognized a
defendant's fundamental right to obtain a credit pursuant to the
[Act]," plaintiff's assertion that the hearsay rule bars admission
of the settling defendant evidence "flies in the face of both the
Young decision and the [Act]." The amici curiae contend that
plaintiff "misquote[s] and mischaracterize[s]" the Young decision
and that the holding that "credit survives" dismissal necessitates
a finding that a settling defendant remains a party to the action.
Young, however, does not address the specific evidentiary
issue presented here. The Court held that a credit under the Act
25 A-4530-14T2
survives even though the non-settling defendants' cross-claims are
dismissed. Young, 123 N.J. at 599. This supports the proposition
that, at trial, the non-settling defendant's evidence is offered
against the plaintiff rather than against any settled defendants.
Similarly, Universal calls the court's attention to the
recently decided case Krzykalski v. Tindall, 448 N.J. Super. 1, 4
(App. Div. 2016), affirmed, ___ N.J. ___ (2018), arguing that it
undercuts plaintiff's contention that the settling defendants were
no longer parties at the time of trial. Like Young, however,
Krzykalski does not involve evidence issues, but simply reiterates
a principle not in dispute, namely, that under the Act the jury
should be "allowed to evaluate the liability of all those
potentially responsible." Id. at 7.1 Indeed, Krzykalski supports
the conclusion that determining "party" status is ultimately
irrelevant to the issues. Ibid. (noting that apportionment "is
not governed by whether that tortfeasor may be said to be a 'party'
but turns on whether the other tortfeasor 'will be affected by the
verdict'" (citations omitted)).
Thus, Universal's repeated insistence that it retained cross-
claims throughout trial and offered the settling defendant
1
Our Supreme Court affirmed this principle. Krzykalski, ___
N.J. ___ (slip op. at 8-10).
26 A-4530-14T2
evidence in support of those cross-claims ignores established law
that its cross-claims ceased to exist when the other defendants
settled with plaintiffs. The settling defendant evidence went to
the issue of a credit, not to establishing affirmative claims
against the settling defendants.
Plaintiff cites to Guzzi v. Clarke, 252 N.J. Super. 361 (Law
Div. 1991), in support of her position.2 Guzzi sued Clarke for
damages resulting from an automobile accident. Clarke, the driver
of the other car, had been a defendant along with Guzzi in a
consolidated action brought by a passenger in Clarke's car,
Grander. Id. at 366. Both settled with Grander before trial.
Ibid. Guzzi sought to admit the deposition testimony of Grander,
arguing that it "should be admissible under R. 4:16-1(b) which
provides that the deposition of a party is admissible." Ibid.The trial court ruled it was inadmissible "because the person
whose deposition testimony is sought to be admitted as a party
must be a party at the time of trial." Id. at 367. Explaining
that Rule 4:16-1(b) was based on Evid. R. 63(7),3 providing that
2
Plaintiff also cites to an unpublished Appellate Division case
Buttitta v. Allied Signal, Inc., No. A-5263-07 (App. Div. Apr. 5,
2010). We do not include the case in our discussion. See R.
1:36-3.
3
N.J.R.E. 803(b)(1) replaced Evid. R. 63(7) and, while it made
some language changes, it made "no substantive change" to the
27 A-4530-14T2
"[a] statement made by a person who is a party to an action is
admissible against him in that action," Guzzi holds that "Grander's
deposition testimony could only be admissible against her in an
action." Ibid. (alteration in original). Because she was no
longer involved in the action, the hearsay exception was not
applicable. Ibid. The deposition testimony was not admitted.
Ibid.Universal and the amici argue that Guzzi is distinguishable
because, in that case, Guzzi sought to use Grander's testimony
against Clarke, while here, Universal used the settling
defendant's evidence against the settling defendants. As
discussed above, however, because Universal had no cross-claims
remaining by the time of trial, and only plaintiff's rights could
be affected by jury apportionment, the evidence only affected
plaintiff.
The amici cite Brodsky v. Grinnell Haulers, Inc., 181 N.J.
102 (2004), and Kearny v. Brandt, 214 N.J. 76, 100 (2013), for the
proposition that "a defendant who settles and is dismissed from
the action remains a 'party' to the case for the purpose of
determining the non-settling defendant's percentage of fault."
Kearny, 214 N.J. at 100 (quoting Brodsky, 181 N.J. at 113). These
scope of the rule. Biunno, Weissbard & Zegas, Current N.J. Rules
of Evidence, cmt. 1 on N.J.R.E. 803(b)(1) (2018).
28 A-4530-14T2
cases, however, like the Young case, addressed the specific issue
of whether a former defendant remained a "party" solely for
purposes of allocation under the Act, which requires a
determination "in the form of a percentage, of each party's
negligence or fault." N.J.S.A. 2A:15-5.2(a)(2). The cases do not
deal with the evidence rules.
Universal asserts that since plaintiff had planned to use the
settling defendants' evidence against it if they had not settled,
it would be unfair to prevent Universal from using the same
evidence. Similarly, the amici argue that "it would be prejudicial
to the trial defendant to require it to attempt to present its
cases against the settling defendants without the full advantage
of the court rules and evidence that it would have enjoyed if the
settling defendants had not, in fact, settled."
These arguments, however, ignore the rationale for allowing
the admission of interrogatory answers or deposition testimony
against the statement-maker. The statement-maker is present at
trial and has a full and fair opportunity to counter, explain, or
supplement any statements admitted. If, for example, Trane had
remained a defendant at trial, it would have presented its own
defense evidence, including perhaps an expert explaining (1) the
limited circumstances in which asbestos contained within American
Standard boilers would have become friable, (2) the significance
29 A-4530-14T2
of friability to Rowe's exposure and disease, and (3) the likely
quantity of friable asbestos generated by breaking down
approximately sixty American Standard boilers, the number of units
Rowe estimated he had disassembled. Such expert testimony, or
other similar evidence, would have provided the jury with a fuller
picture and could have led it to a different conclusion regarding
Trane's liability or percentage of fault.
There is no unfairness in rules allowing a plaintiff the use
of evidence against co-defendants who are present at trial, but
precluding a defendant from using the same evidence against the
plaintiff when those co-defendants settle and have no reason or
opportunity to present any countervailing evidence. Allowing the
admission of evidence by a defendant against the very party that
crafted the evidence and can defend itself is qualitatively
different than what Universal did here, which was to transform
statements of settling defendants into unrebuttable admissions to
be used against a party that did not make those admissions.
N.J.R.E. 803(c)(25) allows for the admission of a hearsay
statement that, at the time of its making, "so far tended to
subject declarant to civil . . . liability . . . that a reasonable
person in declarant's position would not have made the statement
unless the person believed it to be true." The declarant need not
be a party for a statement against interest to be admissible. See,
30 A-4530-14T2
e.g., Speaks v. Jersey City Hous. Auth., 193 N.J. Super. 405, 412-
13 (App. Div. 1984).
Universal argues that statements by the settling defendants
"concerning their sale of asbestos-containing products and their
failure to warn with regard to those products" fall under this
rule because such statements "would certainly tend to subject [the
settling defendants] to civil liability." However, Universal's
overly broad reading of the rule would allow for the admission of
virtually any "negative" statement of fact. That a particular
defendant manufactured or sold a product containing asbestos but
did not warn about its hazards is only one piece of the much larger
picture needed to establish liability. Moreover, the existence
of asbestos-containing products and the absence of warnings are
objective, well-known historical facts that the settling
defendants could not avoid acknowledging in the face of
incontrovertible proof.
Thus, the trial court erred in admitting the settling
defendants' evidence under either Rule 4:16-1(b) or N.J.R.E.
803(b)(1). The error arose because Universal effectively offered
hearsay evidence against plaintiff, not against the settling
defendants. We cannot sufficiently stress that allowing the
admission of this evidence transformed the statements of the
31 A-4530-14T2
settling defendants into irrefutable admissions to be used against
plaintiff, even though plaintiff did not make the statements.
V.
Plaintiff also contends Universal did not establish the
"unavailability" of the six out-of-state settling defendants.
Such proof is a prerequisite to admission of the corporate
representative testimony under N.J.R.E. 804(a).
We review the trial court's decision regarding witness
unavailability employing an abuse of discretion standard.
Williams v. Hodes, 363 N.J. Super. 600, 605 (App. Div. 2003). The
trial court's interpretation of the law, and the legal consequences
that flow from established facts, are not entitled to any special
deference. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J.
366, 378 (1995) (citations omitted). The trial court failed to
require that Universal demonstrate due diligence in ascertaining
the unavailability of the settling defendants.4
N.J.R.E. 804(b) provides that certain testimony of witnesses
from prior proceedings will not be excluded as hearsay "if the
4
In the trial court, plaintiff also argued that Universal failed
to demonstrate that the party taking depositions in the prior
proceedings had an interest and motive similar to the plaintiff
in this case, as required by N.J.R.E. 804(b)(1)(B). On appeal,
this argument is only raised in a footnote and accordingly we will
not consider it. See State v. Mays, 321 N.J. Super. 619, 636
(App. Div. 1999).
32 A-4530-14T2
declarant is unavailable as a witness." N.J.R.E. 804(a)
provides that a declarant is "unavailable" as a witness where that
declarant:
(1) is exempted by ruling of the court on the
ground of privilege from testifying concerning
the subject matter of the statement; or
(2) persists in refusing to testify
concerning the subject matter of the statement
despite an order of the court to do so; or
(3) testifies to a lack of memory of the
subject matter of the statement; or
(4) is absent from the hearing because of
physical or mental illness or infirmity, or
other cause, and the proponent of the
statement is unable by process or other
reasonable means to procure the declarant's
attendance at trial, and, with respect to
statements proffered under Rules 804(b)(4) and
(7), the proponent is unable, without undue
hardship or expense, to obtain declarant's
deposition for use in lieu of testimony at
trial.
[N.J.R.E. 804(a).]
The trial court in this case ruled that (1) the unavailability
of the corporate entity, rather than the individual representative
witness, was the relevant inquiry, and (2) Universal established
the unavailability of any corporate entity by merely asserting the
settling defendant declined to testify voluntarily and was not
based in New Jersey.
33 A-4530-14T2
The party seeking to admit prior testimony under N.J.R.E.
804(b)(1) has the burden of demonstrating that the witness is
unavailable. State, Dept. of Envtl. Prot. v. Standard Tank
Cleaning Corp., 284 N.J. Super. 381, 400-01 (App. Div. 1995).
Moreover, "the party offering the deposition [must] first
demonstrate that there are no 'reasonable means to procure the
declarant's attendance at trial.'" Witter by Witter v. Leo, 269
N.J. Super. 380, 391 (App. Div. 1994) (citation omitted); see also
Avis Rent-A-Car v. Cooper, 273 N.J. Super. 198, 202-03 (App. Div.
1994) (noting that the rule requires that "all reasonable means
to procure the declarant's attendance at trial must be exhausted"
before a finding of unavailability can be made).
In State v. Hamilton, 217 N.J. Super. 51, 55 (App. Div. 1987),
a witness named Bunn was living in Virginia with a foster family.
The State made some inquiries but was unable to obtain a specific
address that could have been used to compel the witness's
attendance under the Interstate Compact, N.J.S.A. 2A:81-18 to -23.
The court rejected the State's contention that the witness was
unavailable, explaining:
We are unpersuaded that the State acted with
due diligence to procure Bunn's attendance.
It appears to us that it did little more than
make a number of telephone inquiries in New
Jersey and of people in Virginia as to Bunn's
whereabouts and thereafter acquiesced in their
refusal to cooperate.
34 A-4530-14T2
[Hamilton, 217 N.J. Super. at 55.]
Similarly, in State v. Hacker, 177 N.J. Super. 533, 540 (App.
Div. 1981), this court affirmed the trial court's ruling precluding
the admission of prior testimony by a witness who was in Aruba at
the time of trial. The court noted that, although the witness was
"beyond the jurisdiction of the court at the time of trial[,]" he
could not properly be considered unavailable because he was a New
Jersey attorney who "could have been subpoenaed before trial . . .
thus, defendant failed to show that he sought with 'due diligence'
to procure the attendance of the witness." Ibid.; see also State
v. Maben, 132 N.J. 487, 498 (1993) (noting that proof of "a good-
faith effort" to procure live testimony is required for a finding
of unavailability, and "[g]ood faith is determined based on the
circumstances of each case" (citation omitted)).
Williams is particularly instructive. In that case,
Williams, the driver of the front vehicle in a four-vehicle
collision, sued the driver of the rear-most car, Hodes, who had
"caus[ed] a chain reaction collision" leading to her injury. 363
N.J. Super. at 601. Hodes, in turn, joined as third-party
defendants the drivers of the other two vehicles, Duryea and
Harley. Williams did not sue them directly. Ibid. Before trial,
35 A-4530-14T2
counsel for Williams served counsel for Duryea and Harley with
notices in lieu of subpoena as to their respective clients. Ibid.
On the day scheduled for trial, just prior to jury selection,
Hodes took a voluntary dismissal as to Duryea and Harley. Ibid.
The case continued to the next day, during which time plaintiff's
counsel (1) "prepared and faxed subpoenas naming Durye[a] and
Harley to a commercial subpoena server with directions that they
be served on an expedited basis," (2) tried to call the witnesses
directly, and (3) "sought the cooperation of counsel who had
represented them." Id. at 601-02. When trial began the following
day, however, the efforts to procure their testimony had been
unsuccessful, and the trial court refused to admit their deposition
testimony on the grounds that plaintiff's counsel failed to use
reasonable diligence to subpoena them. Id. at 602-03.
We reversed, relying upon the continuing effect of a notice
in lieu of subpoena on a settling party. Well before trial, both
Harley and Duryea had received valid notices in lieu of subpoena
pursuant to Rule 1:9-1. Id. at 603-04. Rule 1:9-1 concerns the
issuance of subpoenas and also provides, in pertinent part, that
"[t]he testimony of a party who could be subpoenaed may be
compelled by a notice in lieu of subpoena served . . . . at least
[five] days before trial." A witness can be held in contempt for
failure to appear in response to a subpoena, while a party who
36 A-4530-14T2
fails to honor a notice in lieu of subpoena can be sanctioned in
other ways. R. 1:2-4; R. 1:9-5.
We disagreed with the trial judge's holding that Duryea and
Harley were "relieved of any compulsion to testify" once dismissed
as parties:
Because sanctions for failure to appear, short
of contempt, are applicable to a witness under
a notice in lieu . . . dismissal of a party
to the action under such a notice does not
abrogate the former party's duty to appear and
testify unless specifically released by the
noticing attorney or the judge.
[Williams, 363 N.J. Super. at 604.]
Additionally:
the duty to appear as a witness embodied in a
duly served notice in lieu survives the
dismissal of the case against that party.
Every party litigant is a potential witness.
Professional courtesy suggests the use of
notices in lieu where a party is represented
by counsel to ensure the presence at trial of
the client as a witness. The efficiency and
economy embodied in the rule would be lost,
if upon dismissal as party, that party can
also simply walk away as a witness.
[Ibid.]
Furthermore, the trial court abused its discretion in
precluding the deposition testimony of Duryea and Harley because,
"[u]nder the circumstances here," plaintiffs' counsel "exercised
'reasonable means' to procure their attendance at trial in the
37 A-4530-14T2
short period of time she had available." Id. at 605 (citation
omitted).
In this case, the trial judge failed to recognize the Williams
principle that the "duty to appear and testify unless specifically
released by the noticing attorney or the judge" is not abrogated
simply because the party subject to the notice in lieu of subpoena
leaves the case. When served with Universal's valid notices in
lieu of subpoena, the settling defendants became subject to that
duty and were subject to sanctions by the court for failing to
perform that duty.
Against that backdrop, the efforts undertaken by counsel for
Universal to obtain compliance with the notices in lieu of subpoena
did not suffice. When sending the notices, Universal correctly
advised counsel for the settling defendants that the notice would
"remain in effect in the event your client settles or is dismissed
from the case." Nevertheless, in the communications following up
on the notices, Universal did not advise the settling defendants
that their appearances continued to be required or again allude
to their continuing duty to appear and testify. Universal did not
request witness names or schedules or otherwise attempt to actually
procure a live witness. Rather, Universal essentially inquired
whether the settling defendants planned to voluntarily appear at
trial and then confirmed that they did not. It was an abuse of
38 A-4530-14T2
discretion for the trial court to conclude that this inquiry was
adequate. It was not.
VI.
Universal's reliance on evidence that was improperly admitted
to establish allocation does not mean that on a retrial it cannot
produce sufficient proofs to enable it to satisfy the requirements
of the Act and benefit from apportionment. The existing ruling
regarding both Universal's liability and the amount of damages is
left in place. Despite Universal's floodgates argument that the
practical implications of a reversal would bring New Jersey's
asbestos litigation to a standstill, they offer no rationale
justifying exempting this type of litigation from routine
applications of the evidence rules. There is no rational basis
for such an exemption.
Thus, having found the court erroneously admitted
interrogatory responses and deposition excerpts because they were
not presented as proofs against the statement-makers, and because
Universal failed to demonstrate the unavailability of witnesses,
we reverse and remand on the issue of apportionment.
VII.
Plaintiff also contends that the court erred by advising the
jury that other defendants had settled prior to trial. The basis
39 A-4530-14T2
for this argument is that the trial court did not balance the
prejudicial effect against probative value.
Plaintiff, for the first time on appeal, argues that the word
"settled" should not have been used in the jury instructions
because of its potential for prejudice. At the charge conference,
the trial court reviewed the portion of the jury instructions
referencing the existence and identities of the settled
defendants, then stated:
[A]nd then I'm going to add in where the
defendant proposed additional language,
["]your verdict will not result in those
settled defendants having any additional
obligation or being required to pay any
additional monies to the plaintiff." I'm going
to add that in there.
Plaintiff's counsel responded:
I would object to that. The same way that I
think that our courts have disfavored the
court--the court instructing the jury that the
percentage of liability that they assess to
another defendant will reduce the amount that
the trial defendant will have to pay and have
said that it's inappropriate . . . for the
court to give that type of ultimate outcome
charge. . . .
It's--I believe it's also inappropriate for
the judge--for the Court to talk about what
might happen with regard to a settling
codefendant. And if-- the Court tells the
jury that those companies won't have to pay,
then I would ask that the Court tell the jury,
but the plaintiffs' ultimate recovery will be
reduced by the amount that you assess to those
settling codefendants. I don't think it's
40 A-4530-14T2
fair to do one without the other, and I think
our courts have really disfavored both.
The trial court answered, "Well, I agree with you then I need
to provide a further explanation" and "I can't make this
one[-]sided." Over a defense objection, the court agreed to
include the instruction proposed by plaintiffs' counsel that "any
percentage of liability assessed against a codefendant will reduce
the amount of money, if any, the plaintiff will collect from
Universal."
"It is a well-settled principle that appropriate and proper
jury charges are essential to a fair trial." State v. Savage, 172
N.J. 374, 387 (2002) (citation omitted). The jury charge
constitutes "a road map to guide the jury, and without an
appropriate charge a jury can take a wrong turn in its
deliberations." State v. Martin, 119 N.J. 2, 15 (1990). "A
portion of a charge alleged to be erroneous, however, 'cannot be
dealt with in isolation . . . [and] should be examined as whole
to determine its overall effect.'" Savage, 172 N.J. at 387(alteration in original) (quoting State v. Wilbely, 63 N.J. 420,
422 (1973)).
The trial court charged the jury as follows:
A number of other companies were
originally named as defendants in this case.
Before the trial began some of the defendants
settled their differences with the plaintiff.
41 A-4530-14T2
As a result the following defendants were not
present or represented by an attorney during
this trial: . . . .
You are not to speculate as to the
reasons why the plaintiffs and those
defendants I have just listed settled their
dispute. You should not be concerned about
the amount, if any, that may have been paid
to resolve the plaintiffs' claims against
these defendants.
You must decide the case based upon the
evidence you find credible, and the law as a
I instruct you. Your verdict will not result
in those settled defendants having any
additional obligation or being required to pay
any additional money to the plaintiffs.
However, the plaintiffs['] recovery will
be reduced by any percentage you allocate to
the settled defendants.
Thus, the trial court addressed the objection plaintiff actually
raised to the charge. The issue was resolved in plaintiff's favor
by adding language proposed by plaintiff's counsel.
Plaintiff now argues that Shankman v. State, 184 N.J. 187(2005), requires reversal. Plaintiff, however, did not object at
the time jury instructions were discussed and does not now argue
that the use of the word "settled" in the pretrial instructions
was error. The judge had informed the jury that plaintiffs
"resolved their differences" with settling defendants before
trial, and that the jury should not speculate as to the reasons
for that settlement.
42 A-4530-14T2
Because plaintiffs did not raise any other objection to the
portion of the jury charge concerning the settling defendants,
plaintiff must show plain error in the court's inclusion of the
word "settled" in the jury instructions.5 R. 2:10-2.
Plaintiff argues the Shankman case dictates a reversal.
According to plaintiff, our Supreme Court recognized "the serious
prejudicial influence the mention of 'settlement' can have upon a
jury's consideration of the alleged liability of the settling
defendant." Plaintiff's reliance on Shankman, however, is
misplaced. The Court's decision related to the illegal quotient
verdict rendered in that case. Shankman, 184 N.J. at 195-205.
The Court's discussion regarding the settling defendant was
substantively very different than the issue pertaining to the
settling defendants in this case.
In Shankman, the passenger's complaint alleged negligence on
the part of her husband, the driver. She had settled with him
before her cause of action against the other driver was tried.
The issue was whether the jury was misled by the court's
5
Plaintiffs did not object at the time and do not argue on appeal
that the use of the word "settled" in the pre-trial instructions
was error. At the start of trial, the judge said both that
plaintiffs "resolved their differences" with the settling
defendants before trial and that the jury should not speculate as
to why these parties "settled their dispute."
43 A-4530-14T2
instruction that they could consider the allegations in Shankman's
complaint as evidence of fault. Id. at 194.
The Court said, "it would be entirely discordant were we to
permit factual assertions, which have been made by a pleader in
one count against one party, to be used as an 'admission' against
that pleader in an issue in another alternative or inconsistent
count in the same cause of action." Id. at 205-06. The Court
also questioned whether the admission of other evidence regarding
the settlement would be appropriate on retrial, cautioning the
trial court to carefully weigh the relevance and potential
prejudicial effect. Id. at 207-08. In fact, the Court reiterated
that evidence of a settlement may not be introduced in order to
show liability but is admissible when offered for a different
purpose. Id. at 207-08.
Where a settlement is advanced as relevant, the probative
value must be weighed against the prejudicial effect:
When the probative value of an asserted bias
by a plaintiff wife against her husband's co-
defendants is minimal and cumulative, and the
prejudicial value of the settlement is as
great as it appeared to be in the initial trial
of this matter, then the settlement should not
be admitted. Admission of evidence about the
settlement would put at risk the very policy
rationale behind N.J.R.E. 408. That risk--
that the jurors will be prejudiced and draw
an inappropriate inference of liability--is a
risk that is better avoided when engaging in
N.J.R.E. 403 weighing.
44 A-4530-14T2
[Ibid.]
Plaintiff argues that the trial court "could have easily
avoided" use of the "mention of 'settlement'" by simply using the
word "resolved" instead. However, plaintiff did not suggest this
accommodation earlier. Even if the suggestion was made, "[i]t is
fundamental that a trial court is not bound to instruct a jury in
the language requested by a party." State v. Thompson, 59 N.J.
396, 411 (1971). "If the subject matter is adequately covered in
the text and purport of the whole charge, no prejudicial error
comes into existence." Ibid.; see also Bolz v. Bolz, 400 N.J.
Super. 154, 163 (App. Div. 2008) (holding that, "taking the charge
as a whole," the court's summary of a witness's testimony was not
error).
The jury in this case was advised, in a straight-forward
manner, that corporations besides Universal "were originally named
as defendants" and that "[b]efore the trial began some of the
defendants settled their differences" with plaintiff. This does
not raise the concerns of prejudice and misunderstanding addressed
by the Shankman Court.
Moreover, it has long been the practice in New Jersey that,
where multiple tort-feasors are or may be
jointly responsible for an individual's
injuries and losses, and one or more of them
effect a settlement in exchange for a covenant
45 A-4530-14T2
not to sue, the fact of the settlement, but
not the amount paid, is generally brought to
the attention of the jury at the trial.
[Theobold v. Angelos, 40 N.J. 295, 303-04
(1963).]
"When the jury has such knowledge, speculation is avoided as to
the reason for the absence from the proceedings of an additional
potentially liable person." Id. at 304. In accordance with this
rationale, the model jury charges provide instructions for the
trial court to adapt for use both before openings and following
summations when settled defendants are involved. See Model Jury
Charges (Civil), 1.11G, "Settling Defendants" (rev. May 2007);
Model Jury Charges (Civil), 1.17, "Instructions to Jury In Cases
In Which One Or More Defendants Have Settled With The Plaintiff"
(approved May 1997).
Essentially, jurors have to be told the facts of a settlement
in order to avoid juror speculation. Theobold, 40 N.J. at 304.
The danger of this speculation arises whenever a jury is asked to
make a liability determination regarding an absent party,
regardless of whether that party appeared for any portion of the
trial.
Finally, a reviewing court is concerned with the "overall
effect" of a jury charge rather than allegedly erroneous words "in
isolation." Savage, 172 N.J. at 387 (citation omitted). In this
46 A-4530-14T2
case, the trial judge clearly advised the jurors that they were
"not to speculate as to the reasons" the settling defendants
settled and they "should not be concerned about the amount, if
any" that was paid. In these circumstances, the trial court's
charge did not create prejudice. The trial judge's mention of the
settled defendants complied with well-established precedent.
VIII.
Plaintiff argues that the motion for judgment notwithstanding
the verdict should have been granted. She contends that Rowe's
exposure to asbestos supplied by Universal was so great that the
jury must have improperly ignored it if they found Universal was
only twenty percent liable. We do not agree.
"An appellate court will not reverse a trial court's
determination of a motion for a new trial 'unless it clearly
appears that there was a miscarriage of justice under the law.'"
Delvecchio v. Twp. of Bridgewater, 224 N.J. 559, 572 (2016)
(quoting R. 2:10-1). Moreover, a reviewing court "should not
disturb the findings of the jury merely because it would have
found otherwise upon review of the same evidence." Ibid.; see
also Carrino v. Novotny, 78 N.J. 355, 360 (1979) ("[A] jury
verdict, from the weight of evidence standpoint, is impregnable
unless so distorted and wrong, in the objective and articulated
view of a judge, as to manifest with utmost certainty a plain
47 A-4530-14T2
miscarriage of justice." (citation omitted)); Crego v. Carp, 295
N.J. Super. 565, 578 (App. Div. 1996) ("[N]either a trial judge
nor an appellate court may reweigh the evidence and impose a new
verdict simply because they disagree with the jury's decision.").
The trial judge rejected plaintiffs' motion, noting that
(1) Rowe testified regarding his use of each of the settling
defendants' products, and (2) plaintiffs' expert testified that
all of Rowe's exposure to asbestos throughout his lifetime
significantly contributed to his mesothelioma. The judge remarked
that "we will never know ultimately what this jury considered as
credible" and denied plaintiffs' motion.
There was considerable evidence that Rowe was repeatedly
exposed to Universal cement over the course of many years.
Nonetheless, given the experts' somewhat conflicting testimony,
it was not a manifest injustice for the jury to decline to adopt
the type of strict proportionality allocation plaintiff contends
was appropriate.
At the close of Universal's case, plaintiff moved to dismiss
the claims for apportionment, arguing that no sufficient basis for
allocation existed. The court denied the motion, stating:
No, the [c]ourt is satisfied because the--
although there--you know, one could contend
that there were no expert proofs to assist the
jury on allocations, there were factual proofs
that were presented, and it ultimately will
48 A-4530-14T2
be up to the jury to determine whether they
are sufficient. So that application is
denied.
However, the court failed to undertake a specific evaluation of
the proofs as to each settling defendant in turn to determine
whether Universal's proofs established a prima facie case against
that defendant.
In order to satisfy its burden as to the settling defendants
sufficient to create a question for the jury, Universal was obliged
to "prove two types of causation: product-defect causation and
medical causation." Hughes v. A.W. Chesterton Co., 435 N.J.
Super. 326, 337 (App. Div. 2014). Product-defect causation proofs
concern the absence of a warning when the asbestos-containing
product leaves the defendant's control. Ibid.To present a prima facie case of medical causation, Universal
was obliged to satisfy the "frequency, regularity and proximity"
test this court adopted in Sholtis v. Am. Cyanamid Co., 238 N.J.
Super. 8 (App. Div. 1989). Under this test, the party with the
burden of proof "only need produce evidence from which a fact-
finder, after assessing the proof of frequency and intensity of
plaintiff's contacts with a particular manufacturer's friable
asbestos, could reasonably infer toxic exposure." Id. at 29. The
frequency, regularity and proximity test "is not a rigid test with
an absolute threshold level necessary to support a jury verdict."
49 A-4530-14T2
James v. Bessemer Processing Co., 155 N.J. 279, 302 (1998) (quoting
Tragarz v. Keene Corp., 980 F.2d 411, 420 (7th Cir. 1992)).
Nevertheless, 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." Estate of Brust v. ACF Indus., LLC, 443 N.J.
Super. 103, 126 (App. Div. 2015) (citations omitted). The Brust
case is particularly useful here.
In Brust, the plaintiff had mesothelioma and, as to her claims
against brake-shoe-related defendants, presented evidence that she
"was exposed to asbestos through contact with her father while he
handled asbestos-contaminated brake shoes on at most four
occasions, and through washing his clothes on at most eight
occasions." Id. at 126. The court acknowledged that "mesothelioma
can develop from minimal exposure to asbestos," but held that "the
exposures established by this record are so few and so limited
that they simply fail to meet the 'frequency, regularity, and
proximity' test." Id. at 126-27. Thus, the court held that the
brake-shoe-related defendants were entitled to summary judgment.
Id. at 127.
Here, in addition to failure to warn, Universal needed to
establish as to each settling defendant that Rowe had sufficient
exposure to that defendant's asbestos-containing products that a
50 A-4530-14T2
jury could "reasonably infer toxic exposure." Sholtis, 238 N.J.
Super. at 29. However, no such proof existed for some of the
settling defendants, even including the improperly admitted
settling defendants' evidence.
As to Trane, for example, Rowe testified that about sixty to
sixty-five of the new American Standard boilers he installed had
to be taken apart for installation. Rowe also testified that he
removed some boilers made by this company, but it was not clear
how many such boilers he removed or how many, if any, were broken
apart for removal. It was also not clear if the dust generated
by removal came from the boiler components as opposed to the old,
dried Universal cement. American Standard's interrogatory
responses simply said that some of its boilers "may have contained
components manufactured by third parties" that "may have"
contained asbestos, but they also stated that American Standard
boilers were specially machined so that they did not require
asbestos rope or gaskets to seal the cast iron sections. From
this limited evidence, no reasonable fact-finder could conclude
that Rowe's toxic exposure to asbestos came from an American
Standard boiler. Therefore, although we reject plaintiff's
contention, we caution the trial court to separately examine the
sufficiency of proofs as to each settling defendant on remand.
51 A-4530-14T2
Reversed and remanded for a new trial on the issue of
apportionment.
52 A-4530-14T2