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Ripa v. Owens-Corning Fiberglas Corp.6/5/1995
s.
Even if the jury might have been able to infer from the presence of other material, such as the preliminary and final reports, that the entire Saranac file had been given to Owens-Corning during the relevant time period, the Judge was required to give an appropriate charge concerning how the jury should accept conditionally-admitted evidence. Under Evid. 8(2) (N.J.R.E. 104(b)), the rule is clear:
(2) Where evidence is otherwise admissible if relevant and its relevance is subject to a condition, the Judge shall admit it if there is sufficient evidence to support a finding of the condition. In such cases the Judge shall instruct the jury to consider the issue of the fulfillment of the condition and to disregard the evidence if they find that the condition was not fulfilled. The Judge shall instruct the jury to disregard the evidence if he subsequently determines that a jury could not reasonably find that the condition was fulfilled.
[Evid. 8(2).]
(b) Relevance conditioned on fact. Where evidence is otherwise admissible if relevant and its relevance is subject to a condition, the Judge shall admit it upon or subject to the introduction of sufficient evidence to support a finding of the condition. In such cases the Judge shall instruct the jury to consider the issue of the fulfillment of the condition and to disregard the evidence if it finds that the condition was not fulfilled. The jury shall be instructed to disregard the evidence if the Judge subsequently determines that a jury could not reasonably find that the condition was fulfilled.
[N.J.R.E. 104(b).]
Both the old and new rules provide that the jury "shall" be instructed that it must find the condition (here the timely delivery of the material to Owens-Corning) satisfied before the conditionally admitted evidence may be considered. No such charge was given. Therefore, even if the Saranac documents were conditionally admissible, the jury was given no guidance how they should be considered.
f.
One other evidence point is deserving of note. The testimony of John Thomas was admitted, and defendant contends that the substance of the testimony was speculation. Thomas was the Owens-Corning employee who had moved from Owens-Illinois when the younger company was formed in 1938. During the 1940's he moved from the research department to be assistant to the president, but from 1949 to 1959 he served in a division of Owens-Corning which was developing a new textile fiber. From 1965 to 1970 he was president and chief operating officer of Owens-Corning. Thomas testified that throughout the 1940's and 1950's he was of the opinion that care had to be used with asbestos because it created dust and could cause illness. He knew of a risk of asbestosis but not of cancer. During this period, however, he did not actually work with asbestos and knew nothing of Kaylo. He testified that "in all honesty I think we should have been suspicious of [asbestos containing pipe covering] by [the 1950's]." He agreed that the letter accompanying the final Saranac report would have raised a "red flag." He was asked a single hypothetical question. He answered that if he had been president in 1952 and received the Saranac report, the results "would have probably been what I expected if I knew the tests were being made." Although other hypotheticals were asked, they all related to his personal knowledge and not what he would have done had he been president.
Defendant also contends that Thomas was incompetent at the time of trial. The Judge's determination to the contrary was based upon his judgment after reading the deposition. We have no cause to override this decision. Evid. R.
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