New Jersey Supreme Court, June 30, 2022
In this asbestos action, decedent Willis Edenfield (“Edenfield”) commenced a failure to warn product liability action against defendant Union Carbide. The Appellate Division vacated the jury’s verdict for Plaintiff and remanded for a new trial. However, the New Jersey Supreme Court reversed the Appellate Division’s decision. The Supreme Court found that there were two important contentions at issue.
The Supreme Court explained that this matter is “governed by our common law jurisprudence on product liability.” As per Whelan, Plaintiff must show 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.
As to the third prong, the Supreme Court noted that plaintiff must show both product-defect causation and medical causation. Under 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.” Under medical causation, “the plaintiff must show that the injury was ‘proximately caused by exposure to defendant ‘s asbestos product.”
First, the Supreme Court clarified the proper product defect jury instruction when a plaintiff alleges asbestos exposure in the workplace. The Supreme Court agreed with the trial court’s instruction “that an asbestos manufacturer or supplier has a duty to provide adequate warnings to both the employee directly and the employer” as per Coffman and Theer. The Supreme Court noted that a manufacturer of asbestos products have a dual duty, given “the dangers posed by asbestos to the health of workers,” as well as the fact that some employers may not pass on warnings to its employees. Here, “[n]ot only did Union Carbide provide inadequate label warnings on its products . . . [but] Plant’s operators did not disseminate the [manufacturer’s] warnings or instructions to Plant employees.” Further, the Supreme Court found the Coffman and Theer directives as in line with the Third Restatement. The trial court’s jury instruction “that the duty to put an adequate warning on the product may not be discharged by warnings and information to the employer” was proper. As such, “[t]he 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.”
The second important issue addressed by the Supreme Court involved the medical causation jury instruction. The trial court instructed the jury as follows based on the substantial factor test in the Model Charge:
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 trial court did not accept Union Carbide’s proposed charge as per Sholtis, that plaintiff must “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.”
The Supreme Court found that the jury instruction was not improper simply by not including the “frequency, regularity, and proximity” language from Sholtis. Indeed, “[t]he 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.” Further, the Supreme Court cited to Kurak for the proposition that “[w]hen 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.” As such, the Supreme Court found that “the essence of the Sholtis test was conveyed to the jury in the distinctive circumstances of this case.” Therefore, the trial court’s jury instruction on medical causation was proper. Thus, the Supreme Court reversed the Appellate Court’s decision and reinstated the jury’s verdict.
In dissent, Justice Patterson agreed with the Appellate Division’s findings on both issues. With regard to the warnings issue, Justice Patterson points to Coffman for the proposition that “a manufacturer may in certain settings act reasonably when it relies on the employer to convey warnings provided by the manufacturer to employees.” Further, “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.” Based on the Coffman and Theer principles, Justice Patterson set forth that an asbestos manufacturer may satisfy its duty to warn “by taking reasonable steps to convey warnings, instructions, and other information to employers for dissemination to employees.” Instead, Justice Patterson believed the majority changed the law with respect to a manufacturer’s duty to warn in the workplace. Specifically, the majority:
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.
Thus, the majority “leaves the governing standard for asbestos litigation failure to warn claims unclear and unfair.”
With regard to the medical causation jury instruction, Justice Patterson stated that the jury instruction was improper as it was “a generic medical causation charge devoid of any reference to the frequency, regularity or proximity of Edenfield’s contact with Union Carbide’s product.” Indeed, “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 such, “the charge substantially eased plaintiff’s burden of proof and allowed the jury to decide a core issue without considering the relevant factors,” which denied Union Carbide a fair trial.
Read the full decision here