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Dafler v. Raymark Industries Inc.7/30/1992
I
This appeal and cross-appeal are taken from a verdict in plaintiff's favor and a jury's apportionment of responsibility between plaintiff and defendant in an asbestos product liability case. The case presents a question of first impression in this State concerning apportionment of damages for lung cancer between an asbestos producer and a cigarette smoker. The jury found that plaintiff contributed 70% to his lung cancer by cigarette smoking and that defendant Keene Corporation (Keene) contributed 30% to plaintiff's lung cancer by its asbestos products used in shipbuilding. The damage verdict for lung cancer was molded to reflect this apportionment. We conclude that both the apportionment by the jury and the general verdict in plaintiff's favor find reasonable factual support in the record and we affirm.
II
This is the procedural background. On October 10, 1986 plaintiff sued 11 defendants, all manufacturers or distributors
of asbestos products. At the jury trial in May 1991 the only remaining defendant was Keene, which had stipulated to successor liability for the asbestos products of its predecessors, Ehret Magnesia Manufacturing Company and Baldwin-Hill Corporation. Plaintiff claimed that he developed asbestosis and lung cancer as a result of occupational exposure to asbestos during his six-year employment at the New York Shipyard in Camden, from 1939 to 1945.
On May 21, 1991 the jury returned liability and damage verdicts in plaintiff's favor. The jury found unanimously that "asbestos exposure was a substantial contributing cause of Mr. Dafler's lung cancer." The jury found Keene, through its predecessors, a substantial contributing cause and 95% responsible. The jury found Garlock, Inc., a defendant who had settled for $2,500 before trial, 5% responsible. The monetary awards were: for asbestosis, $60,000; for lung cancer, $140,000 -- an aggregate of $200,000. The $60,000 award for asbestosis was apportioned $52,500 to Mr. Dafler for his asbestosis injuries, $7,500 to Mrs. Dafler for her derivative claim. The $140,000 award for lung cancer was broken down as $122,500 to Mr. Dafler for his lung cancer, and $17,500 to Mrs. Dafler for her derivative claim.
As a result of these findings, the overall verdict of $200,000 was reduced by 5% to $190,000 because of the liability attributed to Garlock, Inc. The lung cancer verdicts alone were subjected to the 30/70% apportionment ratio between plaintiff and defendant Keene arrived at by the jury. The residual asbestosis injury award, of course, was not subject to apportionment
since it was all attributable to defendant Keene. The net aggregate award to plaintiff, after these adjustments for the settlement with Garlock, Inc. and the plaintiff's own contribution to his lung cancer by smoking, was $96,900.
The Judge entered an order on May 31, 1991 in a total amount of $123,108.21, which recognized prejudgment interest in the amount of $26,208.21 and post-judgment interest under R. 4:42-11. A credit of $3,532.98 pursuant to N.J.S.A. 2A:15-9 (credit for collateral sources) was later allowed. All post-trial motions by plaintiff and Keene attacking the verdict were denied.
Both plaintiff and Keene appeal. In this appeal plaintiff raises these claims of error: (1) there was insufficient evidence to allow the jury to apportion damages for plaintiff's lung cancer; (2) the Judge improperly influenced the jury's apportionment decision; and (3) there was insufficient evidence to prove Garlock was a substantial contributing f
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