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Ripa v. Owens-Corning Fiberglas Corp.6/5/1995
he prior punitive damage claims or judgments in other actions in order to appraise defendant's arguments; we did not, however, accept such data as substantive evidence. At this stage in the proceedings, we accept the figures for a limited purpose. They are offered to us as part of an extensive affidavit by Robert A. McOmber dated March 24, 1993, former litigation counsel to Owens-Corning in its Toledo, Ohio law department. This material, not having been presented to the jury, is not part of the record before us. We have considered it only insofar as we have the independent duty to review a punitive damage award and in order to give guidance to the trial court concerning how the materials might be utilized if they are offered at a retrial. We recognize that other courts have rejected such data. See Kochan v. Owens-Corning Fiberglass Corp., 242 Ill. App. 3d 781, 610 N.E.2d 683, 694-695, 182 Ill. Dec. 814 (Ill. App. Ct.), app. den., 622 N.E.2d 1208 (Ill. 1993), cert. denied, U.S. , 114 S. Ct. 1219, 127 L. Ed. 2d 565 (1994).
One might argue that all pre-verdict data concerning punitive awards, even those which had not been presented to the jury, should be revealed to the appellate court. As noted earlier in the opinion, however, we read Fischer as leaving to defendant the option of introducing this data before the jury, and we merely review the present trial record that does not contain such data. The plaintiff is able to discover this data and to present it, as it must present all other data concerning the defendant's financial condition. See Herman v. Sunshine Chem. Specialties, Inc., supra, 133 N.J. at 343.
e.
Defendant suggests that the courts should adopt a "clear and convincing evidence" standard of proof concerning punitive damages. While this is the standard contained in most of the federal acts under consideration, the issue was considered but rejected in drafting the 1987 New Jersey Products Liability Act in which the "preponderance of the evidence" standard was retained. See N.J.S.A. 2A:58C-5a. It is true that in Fischer v. Johns-Manville Corp., supra, the Supreme Court specifically left open the possibility of employing the more restrictive "clear and convincing" evidence standard in punitive damage cases. 103 N.J. at 673-674; see also Id. at 682 (O'Hern, J. Dissenting). But the decision in Herman to adopt the Products Liability Act's procedure in all future punitive damage cases settles this issue for the time being.
f.
One of the bases of plaintiff's claim of punitive damages was that Owens-Corning knew of the Saranac studies and their results. Although defendant acknowledges receipt of the interim (1952) and final (1956) reports, there is no definitive proof that defendant received all of the Saranac documents. These documents included the following:
(1) A February 12, 1943 letter from U.E. Bowes (an Owens-Illinois employee) to Dr. Gardner at Saranac asking him to initiate the study of the product that eventually would be called Kaylo. The study was to include the effects on end users.
(2) A letter of February 23, 1943 from Gardner to Bowes acknowledging the request and asking preliminary questions.
(3) A March 12, 1943 letter from Gardner to Bowes suggesting that the materials "have all the ingredients for a first class hazard."
(4) A May 31, 1944 letter from Gardner to Bowes stating that the asbestos dust was "potentially dangerous" if smaller than the particles sampled.
(5) An October 30, 1947 interim project report claiming that there was no evidence that Kaylo caused either pulmonary or respiratory problems.
(6) A November 16, 1948 letter from Dr. Vorw
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