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Ripa v. Owens-Corning Fiberglas Corp.6/5/1995
that (1) the award violates New Jersey law; (2) it violates the United States and New Jersey Constitutions; (3) it was unsupported by evidence proving actual malice or wanton and willful disregard of the rights of others; (4) the award was grossly excessive; (5) it was affected by unduly prejudicial and irrelevant evidence; and, finally, (6) it was considered by the jury under an improper standard of proof. We treat these issues generally.
As noted earlier, we have already determined that the liability and compensatory damage verdicts need not be remanded for redetermination. Punitive damages in particular are dependent upon a jury's determination of liability. Where punitive damages are concerned, the nature of defendant's conduct and the probability that defendant's conduct caused the injuries are prime considerations. Since this matter is to be remanded for a retrial only on punitive damages, we recognize that, of necessity, there must be some recapitulation for the jury of the basis for both the compensatory and punitive damage awards. We will, therefore, briefly analyze defendant's claims as a guide to the trial Judge when the matter is reconsidered.
a.
Under the standards of Fischer v. Johns-Manville Corp., supra, 103 N.J. at 656, the jury certainly could have found that Owens-Corning should have realized there was a high risk of injury if it (1) studied the initial Saranac results, and (2) applied even the now-discredited TLV's to the end users of the Kaylo product. Although defendant's own manufacturing plant may have passed the TLV test of the 1950's, defendant apparently gave no warnings to the end users who might be using the Kaylo in the narrow confines of ship passageways or boiler rooms with poor ventilation. While defendant was not shown to have actively suppressed its knowledge of Kaylo's potential dangers, it also gave no notice of the danger to the end users or their employers. The absence of complaints was not significant since it apparently was known that cancers caused by asbestos did not appear for many years.
The claim against Owens-Corning relates to decedent's mesothelioma which caused his death, not to the asbestosis from which decedent suffered or even to any possible danger from other asbestos-related cancers. Defendant could, therefore, only be punished for that which was the narrow substance of plaintiff's claims. Plaintiff's theory of liability was accepted by the jury, that the inhalation of any of the various forms of asbestos could be found to have caused this cancer. If defendant's fiber theory has been accepted, then the jury could have awarded such damages only if it found that Kaylo contained crocidolite fibers.
Fischer considered and rejected each of the arguments raised by defendant. These included (a) the remoteness of the conduct from the award; (b) the changed corporate structure and personnel from the decision makers at the time of the injury to those who must suffer the punitive damage consequences; (c) the change in stockholders during the same period so that the award falls on those who had reaped no benefit, permitting those who had performed the punishable conduct to have sold for full value; and (d) the lack of deterrent value of the award when it is imposed upon a corporation which may no longer even be producing the offending product. 103 N.J. at 660-665. It is not for this court to readdress these arguments, however appealing some of them may be. We, therefore, merely reiterate the Supreme Court's explanation in Fischer that a manufacturer, aware of the dangerous features of its product but which nevertheless markets the product, has the ability to factor into the price the cost of compensatory damages an
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