DONNA ROWE, ETC. VS. BELL & GOSSETT COMPANY (L-2353-14, MIDDLESEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 29, 2018
• Docket: A-4530-14T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4530-14T2

DONNA ROWE, individually and as Executrix and Executrix ad Prosequendum of the Estate of RONALD ROWE,

Plaintiff-Appellant,

v.

BELL & GOSSETT COMPANY, a subsidiary of ITT Industries; BORG WARNER MORSE TEC, f/k/a Borg Warner; BRYANT MANUFACTURING, n/k/a Carrier Corp.; BURNHAM LLC, individually and as successor to Burnham Corporation, individually and as successor-in-interest to Federal Boiler and Radiator Co.; CRANE CO., individually and as successor to Jenkins Valves, Inc., a/k/a Jenkins Bros.; CRANE PUMPS & SYSTEMS, INC.; DANA COMPANIES, LLC f/k/a Dana Corporation, individually and as successor-in-interest to Victor and Spicer; ECR INTERNATIONAL, INC., as successor-in-interest to Dunkirk Radiator Corporation; GENERAL ELECTRIC COMPANY; GENERAL PLUMBING SUPPLY, INC., as successor-in-interest to Ridgewood Corp.; HB SMITH CO., INC.; HONEYWELL INTERNATIONAL, INC., f/k/a Allied Signal, Inc., as successor-in-interest to The Bendix Corporation; J.H. FRANCE REFRACTORIES COMPANY; JOHNSON CONTROLS, INC., individually and as successor-in-interest to York International Corp.; LENNOX FURNACE CO., a/k/a Lennox Industries; NUTLEY HEATING & COOLING SUPPLY COMPANY; PEERLESS INDUSTRIES, INC., f/d/b/a Peerless Heater Co.; RIDGEWOOD CORP.; SID HARVEY INDUSTRIES, INC.; TRANE US, INC., as successor to American Standard Inc.; UNION CARBIDE CORP.; WEIL- MCLAIN COMPANY, INC.; COMPUDYNE CORPORATION, individually and as Successor to York-Shipley; NEW JERSEY PLUMBING GROUP, LLC, d/b/a Blackman Plumbing Supply Company, Inc., as successor-in- interest to Orange County Plumbing Supply Company and Ridgewood Corporation; ORANGE COUNTY PLUMBING GROUP, LLC, as successor-in-interest to Orange County Plumbing Supply Co. and Ridgewood Corporation; YORK INTERNATIONAL, INC.,

Defendants,

and

HILCO, INC., as successor-in- interest to Universal Engineering Co., Inc.,

Defendant-Respondent.

Argued February 14, 2018 – Decided June 29, 2018

2 A-4530-14T2 Before Judges Alvarez, Nugent, and Geiger.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2353-14.

Amber R. Long argued the cause for appellants (Szaferman, Lakind, Blumstein & Blader, PC, and Levy Konigsberg, LLP, attorneys; Robert E. Lytle and E. Elizabeth Sweetser, on the briefs).

Patricia M. Henrich argued the cause for respondent (Reilly, Janiczek, McDevitt, Henrich & Cholden, PC, attorneys; Patricia M. Henrich, Brandy L. Harris and Josette F. Spivak, on the briefs).

McCarter & English, LLP, and Gibbons, PC, attorneys for amicus curiae Honeywell International, Inc. (John C. Garde, of counsel and on the joint briefs; Kim M. Catullo and Ethan D. Stein, of counsel; Christopher Rojao and Elizabeth Monahan, on the joint briefs).

Caruso Smith Picini, PC, attorneys for amici curiae Union Carbide Corporation and CertainTeed Corporation (Richard D. Picini and Anthony J. Caruso, on the joint briefs).

Eckert Seamans Cherin & Mellot, LLC, attorneys for amici curiae A.O. Smith and Superior Lindgerwood Mundy (David Katzenstein, on the joint briefs).

Marshall Dennehey Warner Coleman & Goggin, attorneys for amici curiae Kaiser Gypsum Company, Riley Power, Jaeger Lumber and Supply Company (Paul C. Johnson, on the joint briefs).

Pascarella DiVita, PLLC, attorneys for amici curiae Ingersoll Rand Company, Trane US, Inc., General Cable Corporation, and Rheem

3 A-4530-14T2 Manufacturing Company (Lisa M. Pascarella and Stephanie A. DiVita, on the joint briefs).

Reilly, Janiczek, McDevitt, Henrich & Cholden, PC, attorneys for Amicus Curiae Aurora Pump Company (Patricia M. Henrich and Brandy L. Harris, on the joint briefs).

Tannenbaum Keale, attorneys for amici curiae BorgWarner Morse TEC LLC, Foster Wheeler LLC, survivor to a merger with Foster Wheeler Corporation and Foster Wheeler Energy Corporation (Christopher J. Keale, on the joint briefs).

Lynch Daskal Emery, LLP, attorneys for amicus curiae Georgia-Pacific LLP (Diane M. Pompei, on the joint briefs).

McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for amici curiae Burnham LLC and Eaton Corporation (Nancy McDonald, on the joint briefs).

McGivney & Kluger, attorneys for amici curiae Ductmate Industries, The Fairbanks Company, Herman Sommer, and Magid Glove and Safety (Thomas McNulty, on the joint briefs).

PER CURIAM

Donna Rowe (plaintiff), individually on her per quod claim

and as executrix and executrix ad prosequendum of the estate of

Ronald Rowe (Rowe), appeals an April 27, 2015 judgment of

$304,152.70 plus prejudgment interest. We reverse and remand for

a new trial on the issue of apportionment.

4 A-4530-14T2 I.

Rowe died of mesothelioma on April 8, 2015, weeks after the

jury verdict being appealed. The complaint originally named

twenty-seven defendants, including Hilco Inc., the successor-in-

interest to Universal Engineering Co., Inc. (Universal). Twelve

defendants were granted summary judgment, four were dismissed, and

two never appeared and the claims against them were abandoned.

Eight defendants settled their claims before trial, namely:

(1) Borg Warner Morse Tec (Borg Warner); (2) Burnham, LLC

(Burnham); (3) Dana Companies, LLC (Dana); (4) ECR International,

Inc. (ECR); (5) Honeywell International, Inc. (Honeywell);

(6) Peerless Industries, Inc. (Peerless); (7) Trane US, Inc.

(Trane); and (8) Weil-McLain Company, Inc. (Weil-McLain)

(collectively, the settling defendants). The parties signed

stipulations of dismissal as to Trane on November 21, 2014, as to

Honeywell on February 17, 2015, and as to ECR on June 23, 2015.

A stipulation of dismissal as to Peerless was filed months later,

and as to Borg Warner, Burnham, Dana, and Weil-McLain, months

after that.

Only Universal participated in the trial. The company had

cross-claimed for contribution against all co-defendants under the

Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 to -5, and

5 A-4530-14T2 the New Jersey Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to

-5.8 (Act).

The jury found that Rowe's exposure to a product sold or

distributed by Universal was a substantial factor in causing his

mesothelioma. The jury awarded compensatory damages of $1.5

million, allocated (1) $250,000 to Rowe for damages until the time

of trial, (2) $500,000 to Rowe for future damages, (3) $250,000

to plaintiff for past loss of services and consortium, and

(4) $500,000 to plaintiff for future loss of services and

consortium.

The jury also found that Rowe's exposure to the products of

the settling defendants was a substantial factor in causing his

mesothelioma. The jury allocated twenty percent of the damages

to Universal and apportioned the remaining eighty percent between

the settling defendants as follows: (1) five percent to Borg

Warner; (2) fourteen percent to Burnham; (3) six percent to Dana;

(4) nine percent to ECR; (5) fourteen percent to Honeywell;

(6) twelve percent to Peerless; (7) ten percent to Trane; and

(8) ten percent to Weil-McLain. The judge denied plaintiff's

motion for judgment notwithstanding the verdict and for a new

trial.

6 A-4530-14T2 II.

Rowe, who was born on July 30, 1931, worked as an automobile

mechanic for a couple of years in the early 1950s. From 1954

until 1985, however, he worked on heating equipment, furnaces, and

new boilers. In the early 1960s, he established a business

installing, repairing, and servicing boilers. Rowe operated that

business until 1985 when he became disabled. Plaintiff testified

that he came home from work every day with grayish dust on his

clothes. Rowe was diagnosed with mesothelioma in February or

March 2014.

It is not disputed that Rowe was repeatedly exposed to

asbestos-containing dry furnace cement over three decades. That

cement, intended for use on various types of boilers and furnaces,

had to be mixed with water to create a paste. It was sold in

fifty-pound bags. Rowe testified that he used Universal cement

throughout his career both before and while in business, and

estimated he used approximately 1000 bags of the product.

Rowe generated dust when he mixed the cement. He used the

paste to seal exhaust pipes, burners, and other boiler and furnace

components to make them air-tight. All the new asbestos cement

that he used for the sealing work he performed hundreds of times

was bought from Universal.

7 A-4530-14T2 During regular cleaning and repair work, Rowe also generated

dust when he removed hardened cement. Typically, this hardened

cement was manufactured by Universal as he had applied it during

earlier service calls for regular customers.

In the course of replacing boilers, Rowe would sometimes

disassemble an old unit. This too created asbestos dust. He had

no knowledge where that asbestos dust originated. On occasion,

he took apart boilers that were wrapped in chicken wire covered

in asbestos cement. When Rowe removed a steam boiler, he would

sometimes rip out pipe work covered with asbestos material. On a

couple of occasions, he removed old pipe covering during jobs that

did not involve removing a boiler.

Rowe recalled removing old boilers manufactured by Dunkirk,

Weil-McLain, Burnham, and American Standard. He could not recall

how often he removed these boilers or how many of them needed to

be broken apart.

When installing new boilers, Rowe would sometimes have to

disassemble the units "[b]ecause you couldn't get it in the

basement otherwise." He installed new boilers by Dunkirk, American

Standard, and Peerless. Rowe estimated that he dismantled Dunkirk

and Peerless boilers about seventy or seventy-five times each, and

American Standard about sixty or sixty-five times. He believed

8 A-4530-14T2 that the material holding the boiler sections together contained

asbestos.

Rowe also testified to asbestos exposure unrelated to his

employment. He "did a lot of brake jobs; clutch jobs; gaskets,

head gaskets, manifold gaskets." He did "at least a hundred"

brake jobs from 1948 to the mid-1970s using Bendix brakes. He

might have occasionally installed Delco brakes, but he bought

Bendix about eighty percent of the time.

During Rowe's two years as an automobile mechanic in the

early 1950s, he worked with five or six head gaskets manufactured

by Victor. As a mechanic and later, on his own motor home, Rowe

installed approximately two dozen intake manifold gaskets and

about thirty-two exhaust manifold gaskets manufactured by Victor.

The gaskets came packaged together in a kit, and Rowe believed

that the dust on them was asbestos dust. In his answers to

interrogatories, he said working on brakes, clutches, and gaskets

generated asbestos-containing dust.

Plaintiff's expert opined that Rowe's mesothelioma was caused

by his exposure to asbestos. All types of asbestos, including

chrysotile, in her opinion, could cause the disease. She

considered it an unsafe product in any circumstance, and stated

that even a low level of exposure is capable of causing

mesothelioma and that it has a long latency.

9 A-4530-14T2 In the expert's opinion, Rowe's use of Universal cement,

containing chrysotile asbestos, was a substantial factor in

causing his mesothelioma. She characterized his exposure as very

substantial. Although on cross-examination she agreed that all

of Rowe's contacts with asbestos were substantial contributing

factors to his mesothelioma, she held to her conclusion that his

use of Universal cement was the predominant exposure to asbestos

contributing to his disease.

Universal's expert testified that chrysotile does not cause

malignant mesothelioma at any dose. Although Rowe was exposed to

asbestos from about 1000 pounds of Universal cement, he considered

it to be "low level of cumulative exposure and [] not sufficient

to put a – pose a risk for the development of malignant

mesothelioma in this man." The expert believed more significant

contacts with asbestos were required to cause malignant

mesothelioma. In contrast with Rowe's expert, Universal's expert

opined that Rowe's mesothelioma was caused by the thermal system

insulating materials packaging the units with which he worked,

rather than the Universal cement. He said Rowe's disease was

caused by pipe covering material and possibly boiler covering

insulation, because during the relevant time period, many were

friable and contained amosite asbestos.

10 A-4530-14T2 A second Universal expert also testified that Rowe's exposure

from Universal products "was negligible, insignificant, de

minimis, profoundly less exposure, a tiny fraction of exposure of

what he would have received from working with pipe insulation and

boiler work" because he used Universal cement in such small

quantities over the years. His opinion was based on Rowe mixing

Universal cement products, as opposed to exposure related to Rowe's

removal and replacement of that product during annual service

visits.

III.

To support its demand for apportionment under the Act,

Universal presented evidence to the jury establishing liability

on the part of the eight settling defendants. At the start of the

trial, Universal sought to have the settling defendants ruled

unavailable for purposes of admission of certain answers to

interrogatories and deposition transcripts.

Universal sent notices in lieu of subpoena to each of the

eight, demanding the appearance of a corporate representative to

provide testimony. Each notice stated that "the enclosed Notice

in Lieu of Subpoena shall remain in effect in the event your client

settles or is dismissed from the case."

Universal certified that none of the settling defendants

would produce a witness at trial, despite the notices:

11 A-4530-14T2 (1) Borg Warner. Counsel for Borg Warner advised counsel for

Universal by telephone that the company "is not located in New

Jersey and therefore will not appear at trial voluntarily."

(2) Burnham. Burnham's counsel emailed that "Burnham's

corporate rep[resentative] does not live in NJ and will not be

appearing at trial."

(3) Dana. Company representatives "do not reside within this

jurisdiction and thus are unavailable for the purposes of providing

testimony at trial."

(4) ECR. Counsel for ECR wrote to counsel for Universal that

"ECR's designated corporate representative works and resides in

upstate New York" and "[d]ue to personal and business commitments,"

was "unavailable to travel to New Jersey for a personal appearance

at trial of this matter."

(5) Honeywell. Counsel for Honeywell in writing indicated

that "Honeywell's corporate-representative-witness, Mr. Joel

Cohen, resides in the State of California, and due to his being

outside this jurisdiction, is 'unavailable' pursuant to the Court

Rules and Rules of Evidence."

(6) Peerless. Counsel for Universal confirmed by phone that

"its representatives do not reside within this jurisdiction and

thus are unavailable for the purposes of providing testimony at

trial."

12 A-4530-14T2 (7) Trane. Trane's counsel emailed that "we do not have any

available witness with personal knowledge relevant to your

request."

(8) Weil-McLain. Counsel "[d]uring a telephone

conversation . . . confirmed that its representatives do not

reside within this jurisdiction and thus are unavailable for the

purposes of providing testimony at trial."

Plaintiff's counsel objected to the admission of the

deposition of a representative of Borg Warner who had testified

in a different Middlesex County matter, on the grounds that

Universal had not proven the unavailability of the witness, and

plaintiff was not present at his deposition. Counsel also argued

that Universal "had not only the opportunity but the obligation

to come to this [c]ourt to compel compliance with the notice in

lieu of subpoena" served on Borg Warner.

Plaintiff's counsel raised essentially the same objection to

the other settling defendants. Universal's counsel represented

that "as it relates to unavailability . . . the history of the

litigation is that, given the breadth of the asbestos litigation,

the various jurisdictions, these corporate representatives

typically are produced and they're produced in a few cases but not

in every single case." The trial court accepted the representation

13 A-4530-14T2 of counsel that the representatives were outside the jurisdiction

of the court and unavailable.

During trial, Universal read sections of testimony from the

depositions of corporate representatives of Borg Warner, Burnham,

Dana, ECR, Peerless, and Weil-McLain. However, the trial court

ultimately disallowed deposition readings from representatives of

Honeywell and Trane because those two settling defendants were

based in New Jersey and, thus, available to appear at trial.

Defense counsel argued that the deposition testimony of Trane and

Honeywell representatives was admissible under N.J.R.E. 803(b),

even if they were available, because they were parties: "Although

this defendant is not currently a party, they are a party—or not

an active party. They're a party as to us. We have an active

cross claim against them." The court disagreed, stating, "I read

it to the contrary."

Plaintiff opposed Universal's application to read answers to

interrogatories from the settling defendants, arguing that

interrogatory answers were only admissible against parties and

that the settling defendants were no longer parties even though

Universal would be entitled to an offset of liability. The court

held that, although the settling defendants were "not active"

parties, Universal "may put in proofs as to those settled

defendants provided that it has asserted cross-claims" against

14 A-4530-14T2 them. The court allowed the admission of answers to

interrogatories by the settling defendants, whether in the present

case or another matter, as long as they were certified.

Based on these rulings, Universal read selected interrogatory

answers of all eight settling defendants into the record. Some

of the interrogatory answers had been served in the Rowe matter,

some in other Middlesex County matters, and some in matters outside

New Jersey.

In total, the interrogatory answers and deposition testimony

excerpts that were allowed (collectively, the settling defendant

evidence), provided the following facts regarding the settling

defendants:

(1) Borg Warner sold, between 1928 and 1986, "[m]anual clutch

assemblies incorporating clutch facings of others, some of which

contained encapsulated chrysotile asbestos." It had "no

information as to which of its automotive friction products, if

any, were distributed or sold in New Jersey." Borg Warner's clutch

facings never contained any warnings about the hazards of asbestos.

(2) Burnham manufactured residential boilers that contained

asbestos-containing components, starting in the late 1930s or

early 1940s and ending about 1985. Burnham boilers had no warning

labels about the dangers of asbestos. The applicable installation

15 A-4530-14T2 instructions called for the use of asbestos-containing cement to

seal certain areas.

(3) Dana became the successor in interest to the Victor

Gasket and Manufacturing Company (Victor), which made "gasket

products predominantly for use in passenger cars, trucks, off-high

vehicles and leisure boat applications," only some of which

contained asbestos. The interrogatory answers Dana served in this

matter stated:

Victor Products Division made thousands of different gaskets for vehicular applications that varied in many ways, such as size, shape, and physical characteristics according to type of engine, size of engine, number of cylinders, make of engine, year, and model of engine. Some, but not all, of the gaskets contained asbestos.

The earliest Dana placed any warning on an asbestos-containing

product was 1984.

(4) ECR was the successor in interest for Dunkirk, which

manufactured "[s]ectional cast iron boilers, residential." From

1928 until sometime in the 1980s, these boilers contained asbestos

rope, flat asbestos fiber gaskets, and asbestos insulation. In

the initial decades, pieces of the boiler would be assembled at

its destination and furnace cement applied after that. By the

mid-1960s, the boilers were typically "completely, fully

16 A-4530-14T2 assembled, crated and shipped that way from the factory." These

boilers contained no asbestos warnings.

(5) Honeywell was the successor in interest for Bendix,

which manufactured "asbestos-containing friction products for

automotive uses," including brake linings and disc brake pads that

included chrysotile asbestos fibers. These boxes had a warning

on the hazards of asbestos from 1973 onward.

(6) Peerless manufactured cast iron boilers "for residential

and light commercial applications, some of which may have

incorporated a small quantity of asbestos-containing materials."

It provided the following interrogatory answer in a different

Middlesex County matter:

No one model boiler used all of such components at any one time, and many never used any such component. In general, however, based upon the records and information presently available, Peerless believes that between the 1930's and early 1980's, some models of boilers sold under the Peerless name may have included millboard, which was completely encapsulated and enclosed in cast iron jackets, asbestos rope or gaskets which were compressed between boiler sections to create a tight seal, and asbestos cement, which, at times, may have been used in conjunction with the rope to prevent a carbon monoxide leak from the seal between the sections.

Peerless supplied pre-cut pieces of asbestos rope in the 1960s and

1970s for use with boiler installation. Use of the rope was phased

17 A-4530-14T2 out about 1983. Peerless also supplied cement for use in

installation, which might have been wet or a dry mix. Peerless

boilers had no warnings about asbestos.

(7) Trane was successor in interest to American Standard,

which "manufactured a line of heating products, low pressure cast

iron boilers, flash burners, and furnaces for use in residential

and smaller commercial, institutional and industrial settings."

As explained in interrogatory answers:

American Standard built and shipped smaller units from the factory as complete packaged units. Larger boilers were shipped in sections for assembly and jacketing in the field.

American Standard boilers were specially machined so that they did not require rope or gasket to seal between the cast iron sections.

Trane acknowledged that, over the course of ninety years, American

Standard manufactured products using "components manufactured by

third parties," and that, "[d]uring limited times, some of these

components may have had internal parts manufactured by these third

parties, that contained encapsulated chrysotile asbestos fibers."

American Standard provided no warnings regarding asbestos.

(8) Weil-McLain, from the 1920s onward, manufactured "small

cast iron gas, oil and electric boilers for use in residential and

commercial settings," some of which contained asbestos-containing

products. Weil-McLain boilers used wet asbestos cement, asbestos

18 A-4530-14T2 rope, gaskets and asbestos-containing millboard liners. Most of

these parts were manufactured by third parties and, for the

convenience of customers, were shipped with Weil-McLain boilers

for use in installation. No warnings about asbestos were on the

boilers.

At the close of Universal's case, plaintiffs (referring to

Rowe and plaintiff) moved to dismiss Universal's claims against

the settling defendants under the Act, contending that no

sufficient basis for allocation had been established. The court

rejected plaintiffs' allocation argument, stating:

No, the [c]ourt is satisfied because the— although there—you know, one could contend that there were no expert proofs to assist the jury on allocations, there were factual proofs that were presented, and it ultimately will be up to the jury to determine whether they are sufficient. So that application is denied.

Plaintiff raises the following points on appeal:

POINT I THE TRIAL COURT ERRED IN ALLOWING THE NON- SETTLING DEFENDANT, UNIVERSAL, TO INTRODUCE ANSWERS TO INTERROGATORIES AND TESTIMONY OF THE SETTLING DEFENDANTS FROM PRIOR PROCEEDINGS BECAUSE SUCH EVIDENCE IS HEARSAY THAT DID NOT FALL WITHIN ANY EXCEPTION TO THE RULE AGAINST HEARSAY.

A. THE INTERROGATORY ANSWERS AND TESTIMONY OF CORPORATE REPRESENTATIVES OF THE SETTLING DEFENDANTS WERE NOT ADMISSIBLE UNDER R. 4:16-1(B) OR N.J.R.E.

19 A-4530-14T2 803(B)(1)(B) BECAUSE THEY WERE NO LONGER PARTIES AT THE TIME OF TRIAL.

B. AT THE TIME OF TRIAL, UNIVERSAL WAS NO LONGER ADVERSE TO THE SETTLING DEFENDANTS AND THE INTERROGATORY ANSWERS AND TESTIMONY FROM PRIOR PROCEEDINGS WERE NOT USED AGAINST THE SETTLING DEFENDANTS, THEREFORE, NEITHER R. 4:16-1(B) NOR N.J.R.E. 803(B)(1)(B) WAS APPLICABLE.

C. UNIVERSAL FAILED TO DEMONSTRATE THAT THE CORPORATE REPRESENTATIVES OF THE SETTLING DEFENDANTS WERE UNAVAILABLE PURSUANT TO N.J.R.E. 804(A) AND THE CASE LAW CONSTRUING THAT RULE.

POINT II THE TRIAL COURT ERRED IN INSTRUCTING THE JURY, CONTRARY TO THE SUPREME COURT'S OPINION IN SHANKMAN V. STATE, 184 N.J. 187 (2005), THAT PLAINTIFF HAD "SETTLED" HIS CLAIMS WITH CO- DEFENDANTS AGAINST WHICH THE REMAINING DEFENDANT ASSERTED CROSS CLAIMS, THUS IMPLYING THAT THE SETTLING DEFENDANTS HAD ACKNOWLEDGED RESPONSIBILITY FOR PLAINTIFF'S MESOTHELIOMA.

POINT III THE TRIAL COURT'S DENIAL OF PLAINTIFF'S JNOV MOTION RESULTED IN A CLEAR MISCARRIAGE OF JUSTICE.

A. BOILER EXPOSURES.

1. ECR ("DUNKIRK") a. SERVICE WORK b. INSTALLATION WORK c. REMOVAL WORK

2. WEIL MCLAIN a. SERVICE WORK b. INSTALLATION WORK c. REMOVAL WORK

20 A-4530-14T2 3. BURNHAM a. SERVICE WORK b. INSTALLATION WORK c. REMOVAL WORK

4. PEERLESS a. SERVICE WORK b. INSTALLATION WORK c. REMOVAL WORK

5. TRANE ("AMERICAN STANDARD")

6. CONCLUSION – BOILER EXPOSURES

B. FRICTION EXPOSURES.

1. BORG WARNER 2. HONEYWELL (BENDIX) 3. VICTOR (DANA) 4. CONCLUSION – FRICTION EXPOSURES

C. CONCLUSION.

IV.

The trial judge erred in admitting the settling defendant

evidence. It was not exempt from the general prohibition against

admission of hearsay. We do not frame the issue in terms of

"party" status: the question is whether the answers to

interrogatories and depositions should have been admitted given

the rules excluding hearsay, and the manner in which the judge

resolved the question of witness unavailability. The answers to

interrogatories were inadmissible because they were not offered

against the settling defendants, regardless of whether they were

still parties at the time of trial. The court decided the settling

21 A-4530-14T2 defendants were unavailable merely because they declined to appear

without having been released either by counsel or the court.

A.

In ruling, the trial judge did not identify the evidence or

court rule that made certified interrogatory answers admissible.

We presume she relied upon a combination of (1) Rule 4:17-8(a),

which states that "[a]nswers to interrogatories may be used to the

same extent as provided by . . . R. 4:16-1(b) for the use of the

deposition of a party," and (2) Rule 4:16-1(b), which provides:

The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing or authorized agent, or a person designated under R. 4:14- 2(c) or R. 4:15-1 to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party, may be used by an adverse party for any purpose against the deponent or the corporation, partnership, association or agency.

Assuming the trial court reasoned that the settling defendants,

though "not active" parties, were nevertheless "adverse" to

Universal and that the evidence was used "against" them, then the

scope of the rulings were inconsistent with proper application of

the rules.

Rule 4:17 applies to interrogatory answers given in the New

Jersey matter being tried. Nothing in the court rules suggests

that interrogatory answers from litigation pursued in various

22 A-4530-14T2 jurisdictions around the country fall within their scope.

Plaintiff objected on these grounds, but the trial court held that

any certified interrogatory answers could be admitted.

Universal contends that the settling defendant evidence, both

interrogatory answers and deposition excerpts, was also admissible

under N.J.R.E. 803(b)(1). That rule includes the statement of a

"party opponent" among those "statements [] not excluded by the

hearsay rule" if it is "offered against a party" and is "the

party's own statement, made either in an individual or in a

representative capacity."

If the settling defendant evidence was admissible under

N.J.R.E. 803(b)(1), then interrogatory answers from around the

country would be admissible. Indeed, if N.J.R.E. 803(b)(1) were

applicable, then it would also apply to deposition testimony and

the trial court should not have excluded the testimony of Trane

and Honeywell representatives on the grounds that those New Jersey

entities were available to appear.

Both Rule 4:16-1(b) and N.J.R.E. 803(b)(1) have the common

prerequisite that statements within the scope of the rule must be

offered "against" the statement-maker. Significantly, use of the

evidence against the statement-maker is required, regardless of

whether the statement-maker is, might be, or is not a party at the

time of trial.

23 A-4530-14T2 For example, if a Weil-McLain representative had stated in

an interrogatory answer or at a deposition that the asbestos cement

sold by Universal was frequently used by servicemen such as Rowe

when installing and servicing Weil-McLain's boilers, that

statement could not be admitted under either Rule 4:16-1(b) or

N.J.R.E. 803(b)(1)(B) because it would be a statement against

Universal rather than the statement-maker, Weil-McLain. This

would be true regardless of whether Weil-McLain settled or was

present and participating at the trial.

At the time of trial, the settling defendants' claims were

fully resolved. They had nothing to gain or lose from the outcome

of the trial or any possible apportionment of liability. Universal

had no right to any possible future recovery from the settling

defendants, regardless of how well it carried its burden of proof.

Rather, Universal stood to gain only a reduction in the damages

it might ultimately owe as a result of the trial of plaintiffs'

claims against it.

Plaintiff, on the other hand, stood to lose a significant

portion of the jury's quantum of damages if the jury accepted the

settling defendant evidence from Universal as minimizing its

responsibility. The only affirmative claim presented to the jury

and resolved by the jury's verdict was plaintiff's claim against

Universal, and the jury's decisions as to the settling defendants

24 A-4530-14T2 were significant only because they impacted that claim. Universal

could maximize the impact of that evidence while leaving plaintiff

little recourse. In these circumstances, the settling defendant

evidence was offered only against the plaintiff.

All of the parties, for different reasons, rely on Young v.

Latta, 123 N.J. 584 (1991). The Young Court held that, when a

plaintiff settles with a defendant in a multi-defendant case, "the

court should dismiss a non-settler's cross-claim for contribution

as a matter of law as a result of the settlement, although the

credit survives." Id. at 591 (citing Tefft v. Tefft, 192 N.J.

Super. 561, 570 (App. Div. 1983)).

Plaintiff argues this holding "makes clear" that a settling

defendant "is no longer a party to the action." Universal argues

that, to the contrary, because the Young Court "recognized a

defendant's fundamental right to obtain a credit pursuant to the

[Act]," plaintiff's assertion that the hearsay rule bars admission

of the settling defendant evidence "flies in the face of both the

Young decision and the [Act]." The amici curiae contend that

plaintiff "misquote[s] and mischaracterize[s]" the Young decision

and that the holding that "credit survives" dismissal necessitates

a finding that a settling defendant remains a party to the action.

Young, however, does not address the specific evidentiary

issue presented here. The Court held that a credit under the Act

25 A-4530-14T2 survives even though the non-settling defendants' cross-claims are

dismissed. Young, 123 N.J. at 599. This supports the proposition

that, at trial, the non-settling defendant's evidence is offered

against the plaintiff rather than against any settled defendants.

Similarly, Universal calls the court's attention to the

recently decided case Krzykalski v. Tindall, 448 N.J. Super. 1, 4

(App. Div. 2016), affirmed, ___ N.J. ___ (2018), arguing that it

undercuts plaintiff's contention that the settling defendants were

no longer parties at the time of trial. Like Young, however,

Krzykalski does not involve evidence issues, but simply reiterates

a principle not in dispute, namely, that under the Act the jury

should be "allowed to evaluate the liability of all those

potentially responsible." Id. at 7.1 Indeed, Krzykalski supports

the conclusion that determining "party" status is ultimately

irrelevant to the issues. Ibid. (noting that apportionment "is

not governed by whether that tortfeasor may be said to be a 'party'

but turns on whether the other tortfeasor 'will be affected by the

verdict'" (citations omitted)).

Thus, Universal's repeated insistence that it retained cross-

claims throughout trial and offered the settling defendant

1 Our Supreme Court affirmed this principle. Krzykalski, ___ N.J. ___ (slip op. at 8-10).

26 A-4530-14T2 evidence in support of those cross-claims ignores established law

that its cross-claims ceased to exist when the other defendants

settled with plaintiffs. The settling defendant evidence went to

the issue of a credit, not to establishing affirmative claims

against the settling defendants.

Plaintiff cites to Guzzi v. Clarke, 252 N.J. Super. 361 (Law

Div. 1991), in support of her position.2 Guzzi sued Clarke for

damages resulting from an automobile accident. Clarke, the driver

of the other car, had been a defendant along with Guzzi in a

consolidated action brought by a passenger in Clarke's car,

Grander. Id. at 366. Both settled with Grander before trial.

Ibid. Guzzi sought to admit the deposition testimony of Grander,

arguing that it "should be admissible under R. 4:16-1(b) which

provides that the deposition of a party is admissible." Ibid.

The trial court ruled it was inadmissible "because the person

whose deposition testimony is sought to be admitted as a party

must be a party at the time of trial." Id. at 367. Explaining

that Rule 4:16-1(b) was based on Evid. R. 63(7),3 providing that

2 Plaintiff also cites to an unpublished Appellate Division case Buttitta v. Allied Signal, Inc., No. A-5263-07 (App. Div. Apr. 5, 2010). We do not include the case in our discussion. See R. 1:36-3. 3 N.J.R.E. 803(b)(1) replaced Evid. R. 63(7) and, while it made some language changes, it made "no substantive change" to the

27 A-4530-14T2 "[a] statement made by a person who is a party to an action is

admissible against him in that action," Guzzi holds that "Grander's

deposition testimony could only be admissible against her in an

action." Ibid. (alteration in original). Because she was no

longer involved in the action, the hearsay exception was not

applicable. Ibid. The deposition testimony was not admitted.

Ibid.

Universal and the amici argue that Guzzi is distinguishable

because, in that case, Guzzi sought to use Grander's testimony

against Clarke, while here, Universal used the settling

defendant's evidence against the settling defendants. As

discussed above, however, because Universal had no cross-claims

remaining by the time of trial, and only plaintiff's rights could

be affected by jury apportionment, the evidence only affected

plaintiff.

The amici cite Brodsky v. Grinnell Haulers, Inc., 181 N.J.

102 (2004), and Kearny v. Brandt, 214 N.J. 76, 100 (2013), for the

proposition that "a defendant who settles and is dismissed from

the action remains a 'party' to the case for the purpose of

determining the non-settling defendant's percentage of fault."

Kearny, 214 N.J. at 100 (quoting Brodsky, 181 N.J. at 113). These

scope of the rule. Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 1 on N.J.R.E. 803(b)(1) (2018).

28 A-4530-14T2 cases, however, like the Young case, addressed the specific issue

of whether a former defendant remained a "party" solely for

purposes of allocation under the Act, which requires a

determination "in the form of a percentage, of each party's

negligence or fault." N.J.S.A. 2A:15-5.2(a)(2). The cases do not

deal with the evidence rules.

Universal asserts that since plaintiff had planned to use the

settling defendants' evidence against it if they had not settled,

it would be unfair to prevent Universal from using the same

evidence. Similarly, the amici argue that "it would be prejudicial

to the trial defendant to require it to attempt to present its

cases against the settling defendants without the full advantage

of the court rules and evidence that it would have enjoyed if the

settling defendants had not, in fact, settled."

These arguments, however, ignore the rationale for allowing

the admission of interrogatory answers or deposition testimony

against the statement-maker. The statement-maker is present at

trial and has a full and fair opportunity to counter, explain, or

supplement any statements admitted. If, for example, Trane had

remained a defendant at trial, it would have presented its own

defense evidence, including perhaps an expert explaining (1) the

limited circumstances in which asbestos contained within American

Standard boilers would have become friable, (2) the significance

29 A-4530-14T2 of friability to Rowe's exposure and disease, and (3) the likely

quantity of friable asbestos generated by breaking down

approximately sixty American Standard boilers, the number of units

Rowe estimated he had disassembled. Such expert testimony, or

other similar evidence, would have provided the jury with a fuller

picture and could have led it to a different conclusion regarding

Trane's liability or percentage of fault.

There is no unfairness in rules allowing a plaintiff the use

of evidence against co-defendants who are present at trial, but

precluding a defendant from using the same evidence against the

plaintiff when those co-defendants settle and have no reason or

opportunity to present any countervailing evidence. Allowing the

admission of evidence by a defendant against the very party that

crafted the evidence and can defend itself is qualitatively

different than what Universal did here, which was to transform

statements of settling defendants into unrebuttable admissions to

be used against a party that did not make those admissions.

N.J.R.E. 803(c)(25) allows for the admission of a hearsay

statement that, at the time of its making, "so far tended to

subject declarant to civil . . . liability . . . that a reasonable

person in declarant's position would not have made the statement

unless the person believed it to be true." The declarant need not

be a party for a statement against interest to be admissible. See,

30 A-4530-14T2 e.g., Speaks v. Jersey City Hous. Auth., 193 N.J. Super. 405, 412-

13 (App. Div. 1984).

Universal argues that statements by the settling defendants

"concerning their sale of asbestos-containing products and their

failure to warn with regard to those products" fall under this

rule because such statements "would certainly tend to subject [the

settling defendants] to civil liability." However, Universal's

overly broad reading of the rule would allow for the admission of

virtually any "negative" statement of fact. That a particular

defendant manufactured or sold a product containing asbestos but

did not warn about its hazards is only one piece of the much larger

picture needed to establish liability. Moreover, the existence

of asbestos-containing products and the absence of warnings are

objective, well-known historical facts that the settling

defendants could not avoid acknowledging in the face of

incontrovertible proof.

Thus, the trial court erred in admitting the settling

defendants' evidence under either Rule 4:16-1(b) or N.J.R.E.

803(b)(1). The error arose because Universal effectively offered

hearsay evidence against plaintiff, not against the settling

defendants. We cannot sufficiently stress that allowing the

admission of this evidence transformed the statements of the

31 A-4530-14T2 settling defendants into irrefutable admissions to be used against

plaintiff, even though plaintiff did not make the statements.

Plaintiff also contends Universal did not establish the

"unavailability" of the six out-of-state settling defendants.

Such proof is a prerequisite to admission of the corporate

representative testimony under N.J.R.E. 804(a).

We review the trial court's decision regarding witness

unavailability employing an abuse of discretion standard.

Williams v. Hodes, 363 N.J. Super. 600, 605 (App. Div. 2003). The

trial court's interpretation of the law, and the legal consequences

that flow from established facts, are not entitled to any special

deference. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J.

366, 378 (1995) (citations omitted). The trial court failed to

require that Universal demonstrate due diligence in ascertaining

the unavailability of the settling defendants.4

N.J.R.E. 804(b) provides that certain testimony of witnesses

from prior proceedings will not be excluded as hearsay "if the

4 In the trial court, plaintiff also argued that Universal failed to demonstrate that the party taking depositions in the prior proceedings had an interest and motive similar to the plaintiff in this case, as required by N.J.R.E. 804(b)(1)(B). On appeal, this argument is only raised in a footnote and accordingly we will not consider it. See State v. Mays, 321 N.J. Super. 619, 636 (App. Div. 1999).

32 A-4530-14T2 declarant is unavailable as a witness." N.J.R.E. 804(a)

provides that a declarant is "unavailable" as a witness where that

declarant:

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the statement; or

(2) persists in refusing to testify concerning the subject matter of the statement despite an order of the court to do so; or

(3) testifies to a lack of memory of the subject matter of the statement; or

(4) is absent from the hearing because of physical or mental illness or infirmity, or other cause, and the proponent of the statement is unable by process or other reasonable means to procure the declarant's attendance at trial, and, with respect to statements proffered under Rules 804(b)(4) and (7), the proponent is unable, without undue hardship or expense, to obtain declarant's deposition for use in lieu of testimony at trial.

[N.J.R.E. 804(a).]

The trial court in this case ruled that (1) the unavailability

of the corporate entity, rather than the individual representative

witness, was the relevant inquiry, and (2) Universal established

the unavailability of any corporate entity by merely asserting the

settling defendant declined to testify voluntarily and was not

based in New Jersey.

33 A-4530-14T2 The party seeking to admit prior testimony under N.J.R.E.

804(b)(1) has the burden of demonstrating that the witness is

unavailable. State, Dept. of Envtl. Prot. v. Standard Tank

Cleaning Corp., 284 N.J. Super. 381, 400-01 (App. Div. 1995).

Moreover, "the party offering the deposition [must] first

demonstrate that there are no 'reasonable means to procure the

declarant's attendance at trial.'" Witter by Witter v. Leo, 269

N.J. Super. 380, 391 (App. Div. 1994) (citation omitted); see also

Avis Rent-A-Car v. Cooper, 273 N.J. Super. 198, 202-03 (App. Div.

1994) (noting that the rule requires that "all reasonable means

to procure the declarant's attendance at trial must be exhausted"

before a finding of unavailability can be made).

In State v. Hamilton, 217 N.J. Super. 51, 55 (App. Div. 1987),

a witness named Bunn was living in Virginia with a foster family.

The State made some inquiries but was unable to obtain a specific

address that could have been used to compel the witness's

attendance under the Interstate Compact, N.J.S.A. 2A:81-18 to -23.

The court rejected the State's contention that the witness was

unavailable, explaining:

We are unpersuaded that the State acted with due diligence to procure Bunn's attendance. It appears to us that it did little more than make a number of telephone inquiries in New Jersey and of people in Virginia as to Bunn's whereabouts and thereafter acquiesced in their refusal to cooperate.

34 A-4530-14T2 [Hamilton, 217 N.J. Super. at 55.]

Similarly, in State v. Hacker, 177 N.J. Super. 533, 540 (App.

Div. 1981), this court affirmed the trial court's ruling precluding

the admission of prior testimony by a witness who was in Aruba at

the time of trial. The court noted that, although the witness was

"beyond the jurisdiction of the court at the time of trial[,]" he

could not properly be considered unavailable because he was a New

Jersey attorney who "could have been subpoenaed before trial . . .

thus, defendant failed to show that he sought with 'due diligence'

to procure the attendance of the witness." Ibid.; see also State

v. Maben, 132 N.J. 487, 498 (1993) (noting that proof of "a good-

faith effort" to procure live testimony is required for a finding

of unavailability, and "[g]ood faith is determined based on the

circumstances of each case" (citation omitted)).

Williams is particularly instructive. In that case,

Williams, the driver of the front vehicle in a four-vehicle

collision, sued the driver of the rear-most car, Hodes, who had

"caus[ed] a chain reaction collision" leading to her injury. 363

N.J. Super. at 601. Hodes, in turn, joined as third-party

defendants the drivers of the other two vehicles, Duryea and

Harley. Williams did not sue them directly. Ibid. Before trial,

35 A-4530-14T2 counsel for Williams served counsel for Duryea and Harley with

notices in lieu of subpoena as to their respective clients. Ibid.

On the day scheduled for trial, just prior to jury selection,

Hodes took a voluntary dismissal as to Duryea and Harley. Ibid.

The case continued to the next day, during which time plaintiff's

counsel (1) "prepared and faxed subpoenas naming Durye[a] and

Harley to a commercial subpoena server with directions that they

be served on an expedited basis," (2) tried to call the witnesses

directly, and (3) "sought the cooperation of counsel who had

represented them." Id. at 601-02. When trial began the following

day, however, the efforts to procure their testimony had been

unsuccessful, and the trial court refused to admit their deposition

testimony on the grounds that plaintiff's counsel failed to use

reasonable diligence to subpoena them. Id. at 602-03.

We reversed, relying upon the continuing effect of a notice

in lieu of subpoena on a settling party. Well before trial, both

Harley and Duryea had received valid notices in lieu of subpoena

pursuant to Rule 1:9-1. Id. at 603-04. Rule 1:9-1 concerns the

issuance of subpoenas and also provides, in pertinent part, that

"[t]he testimony of a party who could be subpoenaed may be

compelled by a notice in lieu of subpoena served . . . . at least

[five] days before trial." A witness can be held in contempt for

failure to appear in response to a subpoena, while a party who

36 A-4530-14T2 fails to honor a notice in lieu of subpoena can be sanctioned in

other ways. R. 1:2-4; R. 1:9-5.

We disagreed with the trial judge's holding that Duryea and

Harley were "relieved of any compulsion to testify" once dismissed

as parties:

Because sanctions for failure to appear, short of contempt, are applicable to a witness under a notice in lieu . . . dismissal of a party to the action under such a notice does not abrogate the former party's duty to appear and testify unless specifically released by the noticing attorney or the judge.

[Williams, 363 N.J. Super. at 604.]

Additionally:

the duty to appear as a witness embodied in a duly served notice in lieu survives the dismissal of the case against that party. Every party litigant is a potential witness. Professional courtesy suggests the use of notices in lieu where a party is represented by counsel to ensure the presence at trial of the client as a witness. The efficiency and economy embodied in the rule would be lost, if upon dismissal as party, that party can also simply walk away as a witness.

[Ibid.]

Furthermore, the trial court abused its discretion in

precluding the deposition testimony of Duryea and Harley because,

"[u]nder the circumstances here," plaintiffs' counsel "exercised

'reasonable means' to procure their attendance at trial in the

37 A-4530-14T2 short period of time she had available." Id. at 605 (citation

omitted).

In this case, the trial judge failed to recognize the Williams

principle that the "duty to appear and testify unless specifically

released by the noticing attorney or the judge" is not abrogated

simply because the party subject to the notice in lieu of subpoena

leaves the case. When served with Universal's valid notices in

lieu of subpoena, the settling defendants became subject to that

duty and were subject to sanctions by the court for failing to

perform that duty.

Against that backdrop, the efforts undertaken by counsel for

Universal to obtain compliance with the notices in lieu of subpoena

did not suffice. When sending the notices, Universal correctly

advised counsel for the settling defendants that the notice would

"remain in effect in the event your client settles or is dismissed

from the case." Nevertheless, in the communications following up

on the notices, Universal did not advise the settling defendants

that their appearances continued to be required or again allude

to their continuing duty to appear and testify. Universal did not

request witness names or schedules or otherwise attempt to actually

procure a live witness. Rather, Universal essentially inquired

whether the settling defendants planned to voluntarily appear at

trial and then confirmed that they did not. It was an abuse of

38 A-4530-14T2 discretion for the trial court to conclude that this inquiry was

adequate. It was not.

VI.

Universal's reliance on evidence that was improperly admitted

to establish allocation does not mean that on a retrial it cannot

produce sufficient proofs to enable it to satisfy the requirements

of the Act and benefit from apportionment. The existing ruling

regarding both Universal's liability and the amount of damages is

left in place. Despite Universal's floodgates argument that the

practical implications of a reversal would bring New Jersey's

asbestos litigation to a standstill, they offer no rationale

justifying exempting this type of litigation from routine

applications of the evidence rules. There is no rational basis

for such an exemption.

Thus, having found the court erroneously admitted

interrogatory responses and deposition excerpts because they were

not presented as proofs against the statement-makers, and because

Universal failed to demonstrate the unavailability of witnesses,

we reverse and remand on the issue of apportionment.

VII.

Plaintiff also contends that the court erred by advising the

jury that other defendants had settled prior to trial. The basis

39 A-4530-14T2 for this argument is that the trial court did not balance the

prejudicial effect against probative value.

Plaintiff, for the first time on appeal, argues that the word

"settled" should not have been used in the jury instructions

because of its potential for prejudice. At the charge conference,

the trial court reviewed the portion of the jury instructions

referencing the existence and identities of the settled

defendants, then stated:

[A]nd then I'm going to add in where the defendant proposed additional language, ["]your verdict will not result in those settled defendants having any additional obligation or being required to pay any additional monies to the plaintiff." I'm going to add that in there.

Plaintiff's counsel responded:

I would object to that. The same way that I think that our courts have disfavored the court--the court instructing the jury that the percentage of liability that they assess to another defendant will reduce the amount that the trial defendant will have to pay and have said that it's inappropriate . . . for the court to give that type of ultimate outcome charge. . . .

It's--I believe it's also inappropriate for the judge--for the Court to talk about what might happen with regard to a settling codefendant. And if-- the Court tells the jury that those companies won't have to pay, then I would ask that the Court tell the jury, but the plaintiffs' ultimate recovery will be reduced by the amount that you assess to those settling codefendants. I don't think it's

40 A-4530-14T2 fair to do one without the other, and I think our courts have really disfavored both.

The trial court answered, "Well, I agree with you then I need

to provide a further explanation" and "I can't make this

one[-]sided." Over a defense objection, the court agreed to

include the instruction proposed by plaintiffs' counsel that "any

percentage of liability assessed against a codefendant will reduce

the amount of money, if any, the plaintiff will collect from

Universal."

"It is a well-settled principle that appropriate and proper

jury charges are essential to a fair trial." State v. Savage, 172

N.J. 374, 387 (2002) (citation omitted). The jury charge

constitutes "a road map to guide the jury, and without an

appropriate charge a jury can take a wrong turn in its

deliberations." State v. Martin, 119 N.J. 2, 15 (1990). "A

portion of a charge alleged to be erroneous, however, 'cannot be

dealt with in isolation . . . [and] should be examined as whole

to determine its overall effect.'" Savage, 172 N.J. at 387

(alteration in original) (quoting State v. Wilbely, 63 N.J. 420,

422 (1973)).

The trial court charged the jury as follows:

A number of other companies were originally named as defendants in this case. Before the trial began some of the defendants settled their differences with the plaintiff.

41 A-4530-14T2 As a result the following defendants were not present or represented by an attorney during this trial: . . . .

You are not to speculate as to the reasons why the plaintiffs and those defendants I have just listed settled their dispute. You should not be concerned about the amount, if any, that may have been paid to resolve the plaintiffs' claims against these defendants.

You must decide the case based upon the evidence you find credible, and the law as a I instruct you. Your verdict will not result in those settled defendants having any additional obligation or being required to pay any additional money to the plaintiffs.

However, the plaintiffs['] recovery will be reduced by any percentage you allocate to the settled defendants.

Thus, the trial court addressed the objection plaintiff actually

raised to the charge. The issue was resolved in plaintiff's favor

by adding language proposed by plaintiff's counsel.

Plaintiff now argues that Shankman v. State, 184 N.J. 187

(2005), requires reversal. Plaintiff, however, did not object at

the time jury instructions were discussed and does not now argue

that the use of the word "settled" in the pretrial instructions

was error. The judge had informed the jury that plaintiffs

"resolved their differences" with settling defendants before

trial, and that the jury should not speculate as to the reasons

for that settlement.

42 A-4530-14T2 Because plaintiffs did not raise any other objection to the

portion of the jury charge concerning the settling defendants,

plaintiff must show plain error in the court's inclusion of the

word "settled" in the jury instructions.5 R. 2:10-2.

Plaintiff argues the Shankman case dictates a reversal.

According to plaintiff, our Supreme Court recognized "the serious

prejudicial influence the mention of 'settlement' can have upon a

jury's consideration of the alleged liability of the settling

defendant." Plaintiff's reliance on Shankman, however, is

misplaced. The Court's decision related to the illegal quotient

verdict rendered in that case. Shankman, 184 N.J. at 195-205.

The Court's discussion regarding the settling defendant was

substantively very different than the issue pertaining to the

settling defendants in this case.

In Shankman, the passenger's complaint alleged negligence on

the part of her husband, the driver. She had settled with him

before her cause of action against the other driver was tried.

The issue was whether the jury was misled by the court's

5 Plaintiffs did not object at the time and do not argue on appeal that the use of the word "settled" in the pre-trial instructions was error. At the start of trial, the judge said both that plaintiffs "resolved their differences" with the settling defendants before trial and that the jury should not speculate as to why these parties "settled their dispute."

43 A-4530-14T2 instruction that they could consider the allegations in Shankman's

complaint as evidence of fault. Id. at 194.

The Court said, "it would be entirely discordant were we to

permit factual assertions, which have been made by a pleader in

one count against one party, to be used as an 'admission' against

that pleader in an issue in another alternative or inconsistent

count in the same cause of action." Id. at 205-06. The Court

also questioned whether the admission of other evidence regarding

the settlement would be appropriate on retrial, cautioning the

trial court to carefully weigh the relevance and potential

prejudicial effect. Id. at 207-08. In fact, the Court reiterated

that evidence of a settlement may not be introduced in order to

show liability but is admissible when offered for a different

purpose. Id. at 207-08.

Where a settlement is advanced as relevant, the probative

value must be weighed against the prejudicial effect:

When the probative value of an asserted bias by a plaintiff wife against her husband's co- defendants is minimal and cumulative, and the prejudicial value of the settlement is as great as it appeared to be in the initial trial of this matter, then the settlement should not be admitted. Admission of evidence about the settlement would put at risk the very policy rationale behind N.J.R.E. 408. That risk-- that the jurors will be prejudiced and draw an inappropriate inference of liability--is a risk that is better avoided when engaging in N.J.R.E. 403 weighing.

44 A-4530-14T2 [Ibid.]

Plaintiff argues that the trial court "could have easily

avoided" use of the "mention of 'settlement'" by simply using the

word "resolved" instead. However, plaintiff did not suggest this

accommodation earlier. Even if the suggestion was made, "[i]t is

fundamental that a trial court is not bound to instruct a jury in

the language requested by a party." State v. Thompson, 59 N.J.

396, 411 (1971). "If the subject matter is adequately covered in

the text and purport of the whole charge, no prejudicial error

comes into existence." Ibid.; see also Bolz v. Bolz, 400 N.J.

Super. 154, 163 (App. Div. 2008) (holding that, "taking the charge

as a whole," the court's summary of a witness's testimony was not

error).

The jury in this case was advised, in a straight-forward

manner, that corporations besides Universal "were originally named

as defendants" and that "[b]efore the trial began some of the

defendants settled their differences" with plaintiff. This does

not raise the concerns of prejudice and misunderstanding addressed

by the Shankman Court.

Moreover, it has long been the practice in New Jersey that,

where multiple tort-feasors are or may be jointly responsible for an individual's injuries and losses, and one or more of them effect a settlement in exchange for a covenant

45 A-4530-14T2 not to sue, the fact of the settlement, but not the amount paid, is generally brought to the attention of the jury at the trial.

[Theobold v. Angelos, 40 N.J. 295, 303-04 (1963).]

"When the jury has such knowledge, speculation is avoided as to

the reason for the absence from the proceedings of an additional

potentially liable person." Id. at 304. In accordance with this

rationale, the model jury charges provide instructions for the

trial court to adapt for use both before openings and following

summations when settled defendants are involved. See Model Jury

Charges (Civil), 1.11G, "Settling Defendants" (rev. May 2007);

Model Jury Charges (Civil), 1.17, "Instructions to Jury In Cases

In Which One Or More Defendants Have Settled With The Plaintiff"

(approved May 1997).

Essentially, jurors have to be told the facts of a settlement

in order to avoid juror speculation. Theobold, 40 N.J. at 304.

The danger of this speculation arises whenever a jury is asked to

make a liability determination regarding an absent party,

regardless of whether that party appeared for any portion of the

Finally, a reviewing court is concerned with the "overall

effect" of a jury charge rather than allegedly erroneous words "in

isolation." Savage, 172 N.J. at 387 (citation omitted). In this

46 A-4530-14T2 case, the trial judge clearly advised the jurors that they were

"not to speculate as to the reasons" the settling defendants

settled and they "should not be concerned about the amount, if

any" that was paid. In these circumstances, the trial court's

charge did not create prejudice. The trial judge's mention of the

settled defendants complied with well-established precedent.

VIII.

Plaintiff argues that the motion for judgment notwithstanding

the verdict should have been granted. She contends that Rowe's

exposure to asbestos supplied by Universal was so great that the

jury must have improperly ignored it if they found Universal was

only twenty percent liable. We do not agree.

"An appellate court will not reverse a trial court's

determination of a motion for a new trial 'unless it clearly

appears that there was a miscarriage of justice under the law.'"

Delvecchio v. Twp. of Bridgewater, 224 N.J. 559, 572 (2016)

(quoting R. 2:10-1). Moreover, a reviewing court "should not

disturb the findings of the jury merely because it would have

found otherwise upon review of the same evidence." Ibid.; see

also Carrino v. Novotny, 78 N.J. 355, 360 (1979) ("[A] jury

verdict, from the weight of evidence standpoint, is impregnable

unless so distorted and wrong, in the objective and articulated

view of a judge, as to manifest with utmost certainty a plain

47 A-4530-14T2 miscarriage of justice." (citation omitted)); Crego v. Carp, 295

N.J. Super. 565, 578 (App. Div. 1996) ("[N]either a trial judge

nor an appellate court may reweigh the evidence and impose a new

verdict simply because they disagree with the jury's decision.").

The trial judge rejected plaintiffs' motion, noting that

(1) Rowe testified regarding his use of each of the settling

defendants' products, and (2) plaintiffs' expert testified that

all of Rowe's exposure to asbestos throughout his lifetime

significantly contributed to his mesothelioma. The judge remarked

that "we will never know ultimately what this jury considered as

credible" and denied plaintiffs' motion.

There was considerable evidence that Rowe was repeatedly

exposed to Universal cement over the course of many years.

Nonetheless, given the experts' somewhat conflicting testimony,

it was not a manifest injustice for the jury to decline to adopt

the type of strict proportionality allocation plaintiff contends

was appropriate.

At the close of Universal's case, plaintiff moved to dismiss

the claims for apportionment, arguing that no sufficient basis for

allocation existed. The court denied the motion, stating:

No, the [c]ourt is satisfied because the-- although there--you know, one could contend that there were no expert proofs to assist the jury on allocations, there were factual proofs that were presented, and it ultimately will

48 A-4530-14T2 be up to the jury to determine whether they are sufficient. So that application is denied.

However, the court failed to undertake a specific evaluation of

the proofs as to each settling defendant in turn to determine

whether Universal's proofs established a prima facie case against

that defendant.

In order to satisfy its burden as to the settling defendants

sufficient to create a question for the jury, Universal was obliged

to "prove two types of causation: product-defect causation and

medical causation." Hughes v. A.W. Chesterton Co., 435 N.J.

Super. 326, 337 (App. Div. 2014). Product-defect causation proofs

concern the absence of a warning when the asbestos-containing

product leaves the defendant's control. Ibid.

To present a prima facie case of medical causation, Universal

was obliged to satisfy the "frequency, regularity and proximity"

test this court adopted in Sholtis v. Am. Cyanamid Co., 238 N.J.

Super. 8 (App. Div. 1989). Under this test, the party with the

burden of proof "only need produce evidence from which a fact-

finder, after assessing the proof of frequency and intensity of

plaintiff's contacts with a particular manufacturer's friable

asbestos, could reasonably infer toxic exposure." Id. at 29. The

frequency, regularity and proximity test "is not a rigid test with

an absolute threshold level necessary to support a jury verdict."

49 A-4530-14T2 James v. Bessemer Processing Co., 155 N.J. 279, 302 (1998) (quoting

Tragarz v. Keene Corp., 980 F.2d 411, 420 (7th Cir. 1992)).

Nevertheless, a plaintiff "cannot rest on evidence which

merely demonstrates that a defendant's asbestos product was

present in the workplace or that he had 'casual or minimal

exposure' to it." Estate of Brust v. ACF Indus., LLC, 443 N.J.

Super. 103, 126 (App. Div. 2015) (citations omitted). The Brust

case is particularly useful here.

In Brust, the plaintiff had mesothelioma and, as to her claims

against brake-shoe-related defendants, presented evidence that she

"was exposed to asbestos through contact with her father while he

handled asbestos-contaminated brake shoes on at most four

occasions, and through washing his clothes on at most eight

occasions." Id. at 126. The court acknowledged that "mesothelioma

can develop from minimal exposure to asbestos," but held that "the

exposures established by this record are so few and so limited

that they simply fail to meet the 'frequency, regularity, and

proximity' test." Id. at 126-27. Thus, the court held that the

brake-shoe-related defendants were entitled to summary judgment.

Id. at 127.

Here, in addition to failure to warn, Universal needed to

establish as to each settling defendant that Rowe had sufficient

exposure to that defendant's asbestos-containing products that a

50 A-4530-14T2 jury could "reasonably infer toxic exposure." Sholtis, 238 N.J.

Super. at 29. However, no such proof existed for some of the

settling defendants, even including the improperly admitted

settling defendants' evidence.

As to Trane, for example, Rowe testified that about sixty to

sixty-five of the new American Standard boilers he installed had

to be taken apart for installation. Rowe also testified that he

removed some boilers made by this company, but it was not clear

how many such boilers he removed or how many, if any, were broken

apart for removal. It was also not clear if the dust generated

by removal came from the boiler components as opposed to the old,

dried Universal cement. American Standard's interrogatory

responses simply said that some of its boilers "may have contained

components manufactured by third parties" that "may have"

contained asbestos, but they also stated that American Standard

boilers were specially machined so that they did not require

asbestos rope or gaskets to seal the cast iron sections. From

this limited evidence, no reasonable fact-finder could conclude

that Rowe's toxic exposure to asbestos came from an American

Standard boiler. Therefore, although we reject plaintiff's

contention, we caution the trial court to separately examine the

sufficiency of proofs as to each settling defendant on remand.

51 A-4530-14T2 Reversed and remanded for a new trial on the issue of

apportionment.

52 A-4530-14T2