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Ripa v. Owens-Corning Fiberglas Corp.6/5/1995
DREIER, P.J.A.D.
Defendant Owens-Corning Fiberglas Corp. appeals from a compensatory damage award in favor of plaintiff of $380,344.50, including prejudgment interest, and from a punitive damage award of $5,500,000. Owens-Corning was one of ten asbestos manufacturer defendants in plaintiff's wrongful death and survival action based upon Owens-Corning's and the other defendants' alleged failure to provide proper warnings concerning their asbestos products. Specifically, Owens-Corning was charged with the manufacture and distribution of an allegedly unsafe asbestos product called Kaylo.
There is no question that decedent, Peter Ripa, developed severe asbestosis as a result of exposure to asbestos products and that he further had quadruple bypass surgery, the combination of which had totally disabled him from working at some point between 1988 and 1990. In late 1991, he developed chronic rib pain and had lung surgery performed in April 1992. He was diagnosed with mesothelioma, an asbestos-based cancer. The mesothelioma provided the sole basis for plaintiff's claims against Owens-Corning. It was this disease that caused decedent to undergo radiation therapy and allegedly forced him to cease performing even simple tasks around the house. Although at the time of his death he was sixty-four years old, Ripa and his wife of forty years still had a minor daughter living at home who did not graduate from high school until 1993. Decedent died on September 26, 1992, and plaintiffs in this case are his estate and widow (collectively referred to as "plaintiff"). Decedent testified through a de bene esse deposition.
Ripa worked at New York Shipyard in Camden from 1950 until 1957 as a mechanic's helper and machinist. He worked on board ships for forty to fifty percent of his time while asbestos pipe covering was being cut. The workplace was filled with asbestos dust which also covered his clothes. Another shipyard worker with whom decedent worked estimated that forty to forty-five percent of the products he saw causing the asbestos dust to fly in their workspace were products of Owens-Corning. He also ascribed percentages to various other manufacturers. He noted that the Kaylo product prior to 1957 had an Owens-Illinois label and after that an Owens-Corning label.
Between 1953 and 1958 Owens-Corning only distributed the Owens-Illinois product but after 1958 manufactured the Kaylo itself. Some of the Kaylo product even carried the Owens-Corning logo between 1956 and 1958. Kaylo was principally used for insulation purposes, and decedent testified in his de bene esse deposition that he saw the products but never saw any warnings about use of asbestos. Had he seen them, he would have taken them seriously.
The history of the literature warning of the dangers of asbestos and Owens-Corning's knowledge thereof have relevance to the punitive damage claim. The hazards were first mentioned in scholarly literature in 1917 with many articles following. The first case of mesothelioma was reported in 1947, and by the mid-1950's a study of British textile workers associated asbestosis with a risk of lung cancer. When Owens-Illinois developed Kaylo, it asked that Saranac Laboratories conduct a study of the health effect of inhaling Kaylo both from the standpoint of the employees where the product was made and employees using the product. The first part of the study covering manufacturers' employees was completed, but apparently there were no user tests conducted. Although the initial results of the studies showed no effect on laboratory animals with up to two years' exposure, a November 16, 1948 letter from Saranac Laboratories to Owens-Illinois noted a change in the findings in that
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