July 5, 2022
On June 30, 2022, the New Jersey Supreme Court decided Fowler v. Akzo Nobel Chemicals, Inc. The Supreme Court considered two issues: first, whether a manufacturer or supplier that places a defective warning on asbestos products may satisfy its duty to warn by providing adequate information about the product to employers, with the intention that the employer pass along that warning to its employees; and second, whether a trial court must instruct the jury on medical causation of injury using the Sholtis v. American Cyanamid Co., 238 N.J. Super. 8, 28-29 (App. Div. 1989) medical causation test which requires the jury to consider the “frequency, regularity, and proximity” of an injured plaintiff’s exposure to an injurious substance,rather than the traditional substantial factor test.
The Appellate Division held that the trial court erred in failing to instruct the jury that the defendant could discharge its duty to warn by informing Plaintiff’s employer and in failing to instruct the jury that Plaintiff had to establish medical causation using the precise language of Sholtis. The New Jersey Supreme Court reversed the Appellate Division and held that, due to knowledge of the potential harms resulting from contact with asbestos, an asbestos product manufacturer or supplier had a special, enhanced duty to adequately warn both the employer and the employee about the hazards of working in proximity to asbestos products and that the trial court’s jury instruction on proximate cause sufficiently guided the jury in determining medical causation.
Factual Background and Procedural History
This wrongful death and products liability claim was filed in June 2011 by Thomasenia Fowler, as administrator of her late husband, William Edenfield’s estate. William Edenfield was employed at an industrial plant that manufactured rubber and asbestos products from 1954 until 1994. While employed at the plant, Edenfield worked as a batcher in the mill room, where he prepared and weighed dry ingredients used in the manufacturing process. Union Carbide Corporation (“UCC”) began including a warning on its “Calidria” asbestos bags in 1968 which read “WARNING: BREATHING DUST MAY BE HARMFUL DO NOT BREATHE DUST.” A report provided by UCC’s physician(s), revised in 1969, however, suggested a more urgent message about the potential dangers of asbestos exposure. Certain regulatory bodies also recommended upgraded or more explicit warnings for asbestos products, but UCC did not change its product warning. However, UCC did provide additional safety information about handling its asbestos products to the employer. In addition, UCC offered to perform air quality monitoring and train its employees about asbestos safety issues, which offer the plant declined.
UCC was initially granted summary judgment in 2015 on the issue of medical causation. On May 17, 2017, the New Jersey Appellate Division reversed and found that there was a genuine issue of material fact as to whether decedent was exposed to UCC’s asbestos and asbestos-products with sufficient frequency, regularity, and proximity. The case then proceeded to trial and returned a jury verdict in favor of the Plaintiff for $2,380,000 in damages on February 11, 2019. UCC appealed this verdict, and on May 26, 2021, a three-panel judge of the Appellate Division vacated the judgment and remanded the case for a new trial. A Petition for Certification was filed by Plaintiff on July 21, 2021 and review granted on September 24, 2021.
Failure to Warn
The trial court instructed the jury that UCC could be held liable for failing to take reasonable steps to ensure that its warnings reach employers or employees. The trial court further instructed that the duty to place an adequate warning on the product may not be discharged by warnings and information to the employer. The Appellate Division reversed the trial court and held that providing warnings and information to the employer was sufficient. The New Jersey Supreme Court reversed, finding that under Coffman v. Keene Corp. and Theer v. Philip Carey Co., an asbestos manufacturer or supplier has both the duty to place adequate warnings on its products and to convey these warnings to the employee and employer alike, which cannot be discharged to an employer by providing the information and warning to that employer.
The Court reasoned that UCC was aware of the health hazards associated with asbestos and that there was evidence that UCC failed to place adequate warnings despite the feasibility of doing so. Due to the dangers of asbestos, Coffman and Theer imposed a special duty on manufacturers and suppliers of the product to warn both the employee and the employer. The warning to the employer serves to act as a “fail-safe” in the context of asbestos products. Justice Albin, who authored the majority opinion, held that this approach comports with the Court’s common law jurisprudence and public policy objectives.
Medical Causation
The trial court instructed the jury that, in order to find for plaintiff on causation, it must find UCC’s failure to warn was a substantial factor which was the sole or combined cause of Edenfield’s mesothelioma. In providing this jury charge, the trial court denied UCC’s request to include that Edenfield was exposed to UCC asbestos products “frequently, with regularity, and in close enough proximity” language.The Appellate Division reversed and found that the trial court erred by failing to include the “frequency, regularity, and proximity” language developed in Sholtis. The New Jersey Supreme Court reversed the Appellate Division and found that the trial court had not erred by omitting this language.
In reaching this conclusion regarding the appropriate medical causation standard in the context of asbestos litigation, the Sholtis test need not be applied rigidly. Rather, this test provides an overview of what constitutes a substantial factor for proximate cause in the occupational setting. If a plaintiff demonstrates minimal exposure to asbestiform minerals cause mesothelioma, then the jury may find exposure to the products were a substantial factor in the disease.
Conclusion
The New Jersey Supreme Court’s decision regarding asbestos manufacturers/ suppliers having a special, enhanced duty to warn employers and employers due to the hazardous nature of the asbestos comports with the Court’s common law jurisprudence and public policy objectives. Given the medical Regarding medical testimony that even slight exposure to asbestos can cause mesothelioma, the New Jersey Supreme Court’s reasoning that the Sholtis test does not need to be applied rigidly should be surprising. The New Jersey Supreme Court has referred the matter to the Supreme Court Committee on Model Civil Jury Charges to review the current instructions on proximate cause in asbestos cases.
For more information on this topic, please contact the authors, MKCI’s Joe Gallo and Claire Corea. A special thanks is in order to the firm’s summer associate, Randolph Portugal, for his editorial assistance with this matter.