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Ripa v. Owens-Corning Fiberglas Corp.6/5/1995
ald of Saranac to Bowes identifying "unmistakable evidence of asbestosis" in all remaining test animals. Vorwald also stated that it was better to discover the potential for asbestosis in animals than in industrial workers and noted that Owens-Illinois has been forewarned.
(7) A letter of February 7, 1952 from Dr. Vorwald to Hazard (the industrial hygienist at Owens-Illinois) suggesting that "every precaution" should be taken against inhalation of Kaylo dust.
(8) A June 1, 1950 letter from Dr. Vorwald to Hazard suggesting that Kaylo produced an asbestosis-like reaction in the lungs and that "every precaution should be taken to minimize exposure of industrial employees."
(9) The final confidential January 1952 project report concluding that Kaylo dust when inhaled for a long period of time produced peribronchiolar fibrosis typical of asbestosis in guinea pigs but not rats, but not implicating Kaylo as a carcinogen.
Hazard testified that he did not remember talking about the Saranac information with Owens-Corning because "the reports went over so that there was no further need to discuss it." He also testified that he had sent "material" relating to the Saranac study to Owens-Corning, but that he could not definitively state that all of the correspondence introduced at trial had been in the file. Much of this data was given to Owens-Corning after decedent's employment terminated in 1957.
There is no question that during this period Owens-Corning and Owens-Illinois were closely connected. We have already described the stock ownership and mutual directors. The president of Owens-Corning had been executive vice president at Owens-Illinois. While at some later time the interlocking boards were disbanded to comply with governmental regulations, in the 1940's and 1950's there was a definite close relationship. But there was an insufficient showing of notice of the many Saranac documents which the jury was led to believe were known to Owens-Corning which still marketed Kaylo with no warnings to the end users.
As a general rule, when an officer or agent of one corporation with particular knowledge later acts on behalf of another corporation, his personal knowledge is not imputed to the second entity. See Owens-Illinois, Inc. v. United Ins. Co., 264 N.J. Super. 460, 517, 625 A.2d 1 (App. Div. 1993), rev'd o.g., 138 N.J. 437 (1994). While there is an acknowledged exception to this rule where both business entities are close corporations, ibid., we cannot say that the exception should apply to corporations of the size and complexity here involved. The trial court nevertheless found a commonality of interest and that this interest and the corporations' interlocking boards were valid considerations to impute the knowledge of the content of the Saranac documents to Owens-Corning.
Even if there were such commonality of interest, Owens-Corning did not begin to sell Kaylo for Owens-Illinois until 1953. By then the Saranac study was concluded except for the publication of the final report. But there is no proof that we can see in this record that Owens-Corning even knew of the existence of the project until the late 1950's. Given the incriminating nature of the Saranac documents showing potential adverse effects on the end users of Kaylo, the admission of the Saranac documents against Owens-Corning, without a better foundation, had the capacity to inflate the punitive damage verdict significantly. Had there been only a minimum punitive damage award returned, we might have found that there was no showing that the admission of these documents had inflamed the jury. But here there was a $5.5 million award, and we cannot say that the error was harmles
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