Fischer v. Johns-Manville Corp.

512 A.2d 466, 103 N.J. 643, 1986 N.J. LEXIS 1223

• Court: Supreme Court of New Jersey
• Decided: July 31, 1986
• Status: Published

Opinions

The opinion of the Court was delivered by

CLIFFORD, J.

Plaintiff James Fischer and Geneva Fischer, his wife, brought suit against multiple defendants seeking to recover damages for lung diseases suffered by James Fischer as a result of his exposure to asbestos. The complaint sought compensatory and punitive damages from defendants-suppliers of asbestos under negligence, breach of warranty, and strict products liability theories. Plaintiffs elected to press at trial only the strict liability cause of action for compensatory damages, while at the same time they sought punitive damages. There were dismissals of numerous defendants before and during trial, leaving at the close of trial only the Johns-Manville defendants¹ (hereinafter Johns-Manville or defendant) and Bell Asbestos Mines, Ltd. (Bell).

The case was tried to a jury. At the close of trial, the jury awarded compensatory damages of $86,000 to James Fischer and $5,000 to Geneva Fischer. The jury found Johns-Manville eighty percent liable and Bell twenty percent liable. The jury also awarded James Fischer $300,000 in punitive damages, of which $240,000 was assessed against Johns-Manville and $60,-000 against Bell. Both defendants appealed and the Appellate Division affirmed in its entirety the judgment of the trial court. 193 N.J.Super. 113 (1984).

In the court below Johns-Manville did not dispute the award of compensatory damages, nor did it “challenge either the amount of the punitive damages allowed or the trial judge’s instructions respecting the standards which the jury was to apply in considering an award of punitive damages.” 193 NJ.Super, at 120. Rather the contentions were that punitive damages are “not allowable at all” in strict product liability actions, ibid, and that even if they are,- the proofs were inadequate to meet the necessary standard of “outrageous conduct in deliberate disregard of the rights of others,” ibid, both of. which contentions the Appellate Division rejected.

We granted certification, 97 N.J. 598 (1984), after which defendant Bell withdrew its appeal. In addition to its general argument that the case before us is one of great public importance, Johns-Manville’s petition urges that the Appellate Division’s determination runs counter to decisions by New Jersey federal district courts and thus requires clarification. As well it repeats the arguments made below, that (1) punitive damages “cannot conceptually flow” from a claim based on strict liability for failure to warn, (2) punitive damages “serve no purpose” in asbestos mass litigation, and (3) the record does not support a finding of punitive damages against Johns-Manville. As did the Appellate Division, we reject those contentions. We therefore affirm..

I

A full understanding of the background of this case requires a fairly extensive repetition of the pertinent facts set out in Judge Pressler’s comprehensive opinion for the Appellate Division.

James Fischer worked for Asbestos Limited in Millington, Morris County, from 1938 until 1942, and then again in 1945. During his employment his varied duties included bagging asbestos fiber, grinding asbestos ore into fiber, and mixing asbestos fibers with other materials for the manufacture of insulation materials. From 1942 through 1945 and from 1946 through 1947 Fischer toiled as a farm worker; in 1947 he took employment with National Starch Chemical Company in Plain-field. His only exposure to asbestos was while working at Asbestos Limited. During that time he received no cautionary warnings about any dangers of asbestos, nor was he instructed in the safe handling of asbestos by either his employer or the suppliers of asbestos materials, identified at trial as Johns-Man-ville and Bell.

Fischer suspected that he might be suffering from asbestos-related problems when in 1977 his pulmonary disease first manifested itself. His suspicions were confirmed in 1978, at which time he was given medication that ultimately produced such side effects as diabetes, rheumatoid arthritis, and osteoporosis. His progress thereafter continued downhill: in 1979 he entered the hospital for treatment of bronchitis with borderline pneumonia; although he returned to work thereafter, he experienced a heart attack in February 1980, when he was 61 years old. He has not worked since. His treating physician attributed his total disability as due 30% to chronic obstructive lung disease traceable to smoking, 60% to asbestos exposure and the side effects of the medication prescribed for pulmonary problems, and 10% to the heart condition.

The Appellate Division, focusing on what Johns-Manville knew and when it knew it, narrowed the issue to defendant’s “actual knowledge.” 193 N.J.Super. at 117. It viewed the “essential controversy” as whether defendants “did in fact have knowledge of the hazards of asbestos during the time of plaintiff’s exposure some 45 years ago” — “essential,” because plaintiffs’ punitive damage claim hinged on their contention that “defendants knew of these hazards as early as the 1930’s and had made a conscious business decision to withhold this information from the public.” Ibid. In particular, plaintiffs contended that defendants, “with full knowledge of the risks, deliberately chose not to give those warnings to users of the product, which might have enabled them to obtain protection from prolonged exposure.” Ibid. It was this conduct that plaintiffs labelled as “outrageous and flagrant,” in disregard of “the substantial health risks to which defendants subjected the public * * *.” That conduct therefore “justified the imposition of punitive damages.” Ibid.

The Appellate Division summarized the evidence in support of those allegations as follows.

Johns-Manville, in its answers to interrogatories, which were read to the jury, admitted that

[t]he corporation became aware of the relationship between asbestos and the disease known as asbestosis among workers involved in mining, milling and manufacturing operations and exposed to high levels of virtually 100% raw asbestos fibers over long periods of time by the early 1930s. The corporation has followed and become aware of the general state of the medical art relative to asbestos and its relationship to disease processes, if any.

In response to plaintiffs’ requests for admissions, also read to the jury, it admitted that in the early 1940’s it knew that asbestos “was dangerous to the health” of those industrial workers who were exposed to excessive amounts of the material. Plaintiffs, moreover, produced as a witness Dr. Daniel C. Braun, president of the Industrial Health Foundation, a research organization which develops, accumulates and disseminates information about occupational diseases. Dr. Braun testified that Johns-Manville has been a member of the Foundation since 1936. He also testified that since 1937 the Foundation has sent to its members a monthly digest of articles appearing in scientific journals which relate to occupational disease. Relevant portions of the digests, which were admitted into evidence, included references to eleven scientific articles published between 1936 and 1941 documenting the grave pulmonary hazards of exposure to asbestos and discussing measures which could be taken to protect workers. Plaintiffs also proved that as early as 1933 claims were being made against Johns-Manville by asbestos workers, and in November of that year the Executive Committee of its Board of Directors passed a resolution authorizing the president of the corporation

to enter into negotiations for the settlement of any actions now pending or which may be hereafter brought against the Corporation by former employees founded upon alleged injury or disease resulting from their employment by the Corporation and, in his discretion, to settle any such cases upon such terms as he shall, in his uncontrolled discretion, deem advisable and for the best interest of the Corporation.

In December of that year high-level representatives of Johns-Manville met with officials of Raybestos-Manhattan, another major asbestos supplier, to discuss steps which the industry as a whole might take to reduce employee risk. It appears, however, that Johns-Manville never did arrange for or participate in any industry-wide meetings on the subject. The minutes of that 1933 meeting also confirm the participants’ view that at least for the time being “our past policy of keeping this matter confidential is to be pursued.”

Perhaps most damning of all is the so-called Sumner Simpson correspondence of 1935 and 1941. Simpson was president of Raybestos. In October 1935, he received a letter from a Miss Rossiter, editor of the trade periodical Asbestos, suggesting that despite Simpson’s earlier requests, made “for certain obvious reasons,” that articles relating to asbestosis not be published, perhaps the time had come to print a positive article about industry efforts to reduce the risk in order “to combat some of the rather undesirable publicity given to it [asbestosis] in current newspapers.” Simpson thereupon sent a copy of the letter to Johns-Manville’s secretary, Vandiver Brown, expressing his opinion that “the less said about asbestos, the better off we are.” Brown’s reply stated in part:

I quite agree with you that our interests are best served by having asbestosis receive the minimum of publicity. Even if we should eventually decide to raise no objection to the publication of an article on asbestosis in the magazine in question, I think we should warn the editors to use American data on the subject rather than English. Dr. Lanza has frequently remarked, to me personally and in some of his papers, that the clinical picture presented in North American localities where there is an asbestos dust hazard is ' considerably milder than that reported in England and South Africa.

Some seven years later, in 1941, Brown wrote to Simpson regarding Miss Rossiter’s proposal to include in a forthcoming issue of Asbestos a review of a book apparently linking asbestos exposure with pneumoconiosis. Noting that “a number of her subscribers would dislike an article on this subject in the trade magazine of the Asbestos Industry,” Brown expressed the view that as a result of his communications with Miss Rossiter, “I am inclined to believe she will omit any review of the book in question.”

Finally, plaintiffs’ attorney read into evidence excerpts of the deposition testimony of Kenneth W. Smith, a physician who started to work for JohnsManville in 1944 and eventually became Medical Director of its Canadian corporation. Dr. Smith testified that from the beginning of his employment he saw persons with asbestosis “on a regular and frequent basis” and frequently made recommendations that such employees receive job reclassifications which would remove them from continued exposure to asbestos dust. [193 N.J.Super. at 117-20.]

The court below held that in respect of the punitive damages claim, the proofs recited above fully supported plaintiffs’ factual contentions and the jury’s acceptance of them. Í93 N.J.Super. at 117. On this appeal Johns-Manville’s position, succinctly stated, is that the punitive damages award against it is legally impermissible, ill-advised as a matter of public policy in litigation of this nature, and factually unwarranted.

II

The “legally impermissible” argument rests on an asserted theoretical inconsistency between strict liability and punitive damages, which would preclude punitive damage claims when liability for compensatory damages is founded on strict products liability doctrine, if not in all situations at least in asbestos, strict liability lawsuits. We hold that there is no per se legal bar to pursuing a strict liability, failure-to-warn claim and a punitive damage claim in the same case. For this purpose there is no reason to distinguish asbestos litigation from other strict products liability actions. A brief examination of the development and purposes of strict products liability and punitive damages may illuminate the nature of their differences and clarify our holding that those differences do not create a bar to an award of punitive damages in a failure-to-warn, strict products liability case.

We trace current notions of strict products liability both to principles of warranty, a “freak hybrid born of the illicit intercourse of tort and contract,” Prosser, “The Assault Upon The Citadel,” 69 Yale L.J. 1099, 1126 (1960), and to tort strict-liability theory, found primarily in cases involving trespass or nuisance. For personal injuries arising from a breach of warranty, “strict liability is imposed upon the maker or seller of the product. Recovery of damages does not depend upon proof of negligence or knowledge of the defect.” Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 372 (1960). For its part, strict liability in tort rests on the notion that certain activities that create danger must, regardless of their reasonableness, “pay [their] own way in the event [they] actually cause[ ] damagef ] to others.” Berg v. Reaction Motors Div., 37 N.J. 396, 410 (1962).

From these beginnings there evolved the doctrine of strict products liability as we know it today. The doctrine of strict liability in tort imposes liability for injury to another’s person or property without any consideration of the defendant’s intent to commit the act or cause the injury, or of his moral blameworthiness. Although strict liability in tort has sometimes been referred to as “liability without fault,” the expression “liability without moral blame” is more accurate. The “moral blame” connotation given to fault in the criminal law has little application in the law of torts. “There is a broader sense in which ‘fault’ means nothing more than a departure from a standard of conduct required of a person by society for the protection of his neighbors.” W. Prosser and W. Keeton, The Law of Torts 535 (5th ed. 1984), quoted in Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 162 (1979).

[The] contention that liability in strict tort precludes consideration of a defendant manufacturer’s fault is highly dubious. In fact, rather than dispensing with the notion of fault from products liability law, strict tort theory expands it by extending the legal consequences of fault to the “innocent” manufacture of defective products in a manner analogous to negligence per se.

[Owen, “Punitive Damages in Products Liability Litigation,” 74 Mich.L.Rev. 1257, 1269 (1976) (footnotes omitted) (hereinafter Owen /).]

We have previously held that a defendant found liable under strict products liability theory will be considered at fault for purposes of applying the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 to -5. Suter, supra, 81 N.J. at 162-63; see also Cartel Capital Corp. v. Fireco of New Jersey, 81 N.J. 548, 566-67, 570 (1980) (total relevant fault was that of two defendants, one liable for production and distribution of a defective product, one liable for its negligent servicing of the product and its role in the chain of distribution).

Although the emphasis in strict products liability cases is on the safety of the product rather than on the manufacturer’s conduct, e.g., Feldman v. Lederle Labs., 97 N.J. 429, 450 (1984), when, as here, the defect in the product consists of a failure to warn (specifically, defendant’s failure to warn plaintiff James Fischer of the dangers in working with the asbestos ore and fiber that Johns-Manville supplied to Fischer’s employer), “reasonableness of the defendant’s conduct is a factor in determining liability.” Id. at 451. But the appraisal of that reasonableness is made, in a failure-to-warn case, on the basis of a hypothetical element, an assumed fact. As Feldman explains,

[t]he question in strict liability design-defect and warning cases is whether, assuming that the manufacturer knew of the defect in the product, he acted in a reasonably prudent manner in marketing the product or in providing the warnings given. Thus, once the defendant’s knowledge of the defect is imputed, strict liability analysis becomes almost identical to negligence analysis in its focus on the reasonableness of the defendant’s conduct. [97 N.J. at 450 (emphasis added).]

The quoted passage both demonstrates the limited extent to which negligence analysis creeps into our failure-to-warn, strict products liability law, and illuminates the contrasting approaches of strict liability and negligence theories. As trenchantly observed in Freund v. Cellofilm Properties, Inc., 87 N.J. 229 (1981), in the course of Justice Handler’s exegesis on the difference between the two approaches, “under strict liability, the seller’s knowledge [of the product’s propensity to injure as it did] is presumed * * *. In negligence cases, such knowledge must be proved; the standard is what the manufacturer ‘knew or should have known.’ ” Id. at 239 (quoting Phillips v. Kimwood Mach. Co., 269 Or. 485, 525 P.2d 1033 (1974)). See also O’Brien v. Muskin Corp., 94 N.J. 169, 181-84 (1983)-(risk-utility analysis to evaluate product’s safety is sometimes phrased to inquire whether reasonable manufacturer, fully aware of dangers posed by product, would have manufactured and marketed it as he did).

As is obvious from the foregoing, although juries are asked in failure-to-warn cases to assess the reasonableness of a defendant’s conduct, to prove a prima facie case of strict products liability a plaintiff need not introduce evidence relating to a manufacturer’s or distributor’s conduct, except to establish that the defendant did in fact put the offending article into the stream of commerce. This is in contrast to the quality of proofs required to establish a claim for punitive damages, in which a great deal must be shown about a defendant’s conduct. “Punitive or exemplary damages are sums awarded apart from compensatory damages and are assessed when the wrongdoer’s conduct is especially egregious.” Leimgruber v. Claridge Assocs., Ltd., 73 N.J. 450, 454 (1977); see also Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 48 (1984) (quoting Leimgruber v. Claridge Assocs., supra); Restatement (Second) of Torts § 908(1) (1979) (punitive damages awarded for outrageous conduct).

The type of conduct that will warrant an award of punitive damages has been described in various ways. The conduct must be “wantonly reckless or malicious. There must be an intentional wrongdoing in the sense of an ‘evil-minded act’ or an act accompanied by a wanton and willful disregard of the rights of another.” Nappe, supra, 97 N.J. at 49 (citations omitted). “[T]he requirement may be satisfied upon a showing that there has been a deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences.” Berg v. Reaction Motors, supra, 37 N.J. at 414. However one describes the conduct that will justify punitive damages, one thing is clear: “The key to the right to punitive damages is the wrongfulness of the intentional act.” Nappe, supra, 97 N.J. at 49.

As should now be apparent, the proofs needed to establish a prima facie case of failure-to-warn, strict products liability differ markedly from the proofs that will support an award of punitive damages. Despite their differences — one going to the theory of liability, the other bearing on the form and extent of relief — they are not mutually exclusive nor even incompatible. There is no reason they cannot be litigated together. We agree with defendant’s premises: strict products liability proofs center on the product; punitive damages proofs center on a defendant’s conduct. We reject as wholly unwarranted the conclusion defendant draws — that these differences preclude punitive damages claims in failure-to-warn, strict product liability cases.

Defendant places special reliance on our decision in Beshada v. Johns-Manville Prods. Corp., 90 N.J. 191 (1982). In that strict-liability, failure-to-warn, asbestos case, this Court held that the “state-of-the-art” defense was unavailable to the defendants. That defense would permit a defendant to demonstrate that given the scientific, technological, and other information available at the time of manufacture or distribution, it could not have known of the dangers of the product. Feldman v. Lederle Labs., supra, 97 N.J. at 452. Thus the effect of the “state-of-the-art” defense is to permit' a defendant to rebut the presumption of knowledge of its product’s harmful propensities, not by showing merely its own lack of knowledge but rather by proving the impossibility of knowledge, even by experts in the field. Ibid.

Under the holding of Beshada a defendant is precluded and a plaintiff is relieved, on the liability aspect of an asbestos, strict-liability, failure-to-warn case, from introducing evidence relating to a defendant’s actual knowledge or the state of knowledge in the asbestos field at the time of distribution. That principle, however, does not render the evidence inadmissible for all purposes. Hence we hold that in a strict-liability, failure-to-warn case involving exposure to asbestos or asbestos products, plaintiffs are not precluded from introducing evidence relating to defendants’ knowledge or conduct as it may be relevant to other aspects of the case, including punitive damages.

In addition to those evidential differences, strict products liability and punitive damages are different in purpose and in the policies each seeks to promote. “All civil doctrines are shaped with a view toward setting and enforcing rules of behavior. * * * [C]ivil law has both ‘reparative’ [providing money substitutes for losses] and ‘admonitory’ [discouraging repetition of wrongful conduct and warning others who are inclined to engage in similar conduct] functions.” Mallor and Roberts, “Punitive Damages: Toward a Principled Approach,” 31 Hastings L.J. 639, 645, 647 & n. 56 (1980) (hereinafter Mallor and Roberts).

The overriding goal of strict products liability is to protect consumers and promote product safety. Manufacturers, by the act of marketing their products, are made responsible to the public for injuries caused by those products — the “reparative” function. See O’Brien v. Muskin Corp., supra, 94 N.J. at 180. Economic policies underlie the legal theory. Manufacturers are usually the “cheapest cost-avoiders,” Suter v. San Angelo Foundry & Mach. Co., supra, 81 N.J. at 173-74, and have the ability to spread the cost of losses caused by dangerous products. It is in furtherance of these policies that plaintiffs’ burdens have been reduced. Plaintiffs are relieved, in strict products liability cases, of the burden of establishing defendants’ negligence and knowledge or awareness of dangers.

Punitive damages, on the other hand, serve to express the community’s disapproval of outrageous conduct — the “admonitory” function. Punitive damages are determined “from the perspective of the defendant rather than of the plaintiff.” Cappiello v. Ragen Precision Indus., Inc., 192 N.J.Super. 523, 532 (App.Div.1984) (quoting Bartolo v. Boardwalk Regency Hotel Casino Inc., 185 N.J.Super. 540, 544 (Law Div. (1982)). They have been described as “a sort of hybrid between a display of ethical indignation and the imposition of a criminal fine.” Cabakov v. Thatcher, 37 N.J.Super. 249, 259 (App.Div. 1955) (quoting Haines v. Schultz, 50 N.J.L. 481, 484 (Sup.Ct. 1888)). They are awarded to punish the wrongdoer, and to deter both the wrongdoer and others from similar conduct in the future. E.g., Nappe, supra, 97 N.J. at 48-49; Leimgruber v. Claridge Assocs., supra, 73 N.J. at 454. “The doctrine of punitive damages survives because it continues to serve the useful purposes of expressing society’s disapproval of intolerable conduct and deterring such conduct where no other remedy would suffice.” Mallor and Roberts, supra, 31 Hastings L.J. at 641.

As with the differing proofs required for strict liability and punitive damages, the policies behind them, although differing from one another, are not incompatible. We disagree with Justice O’Hern’s assertion “that there is a strong doctrinal inconsistency in permitting a punitive damages claim in an action based on strict products liability. Post at 677. In fact, in products liability cases we believe punitive damages can complement strict liability. One court has defined punitive damages as a “sword” to be used with the “shield” of compensation provided by strict liability. Thiry v. Armstrong World Indus., 661 P.2d 515, 517 (Okla.1983). In some cases punitive damages will provide the incentive necessary to encourage plaintiffs to pursue a manufacturer who engages in a “deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences,” Berg, supra, 37 N.J. at 414, when the compensatory award for those harmful consequences would be outweighed by prohibitive costs of litigation. See also W. Prosser and W. Keeton, Law of Torts, supra, § 2 at 12 (punitive damages can remedy denial of compensation for actual expenses of litigation and serve as an incentive to seek redress for “a long array of petty cases of outrage and oppression”).

Additional support for allowing punitive damages in strict products liability actions may be found in the availability of alternative theories of liability in products cases. Plaintiffs may pursue products claims not only under principles of strict liability but also under theories of negligence or intentional tort. No one would argue that in either of the latter instances a plaintiff would be barred from seeking punitive damages. Hence to allow punitive damages in products cases based on these theories but disallow them under strict liability would create an unnecessary and unwelcome anomaly in our law. The right to recover punitive damages cannot sensibly, in this day and age, be made to turn on the form of pleading — a truism recognized by our learned judicial colleagues on the federal trial bench in New Jersey, albeit later by some than by others. Compare Gold v. Johns-Manville Sales Corp., 553 F.Supp. 482 (D.N.J.1982) (punitive damages not allowed in a products liability action resting on failure-to-warn, strict products liability, but allowed on negligence counts in same case), and Wolf by Wolf v. Proctor & Gamble Co., 555 F.Supp. 613 (D.N.J.1982) (punitive damages allowed only on negligence and intentional misrepresentation claims), with Gogol v. Johns-Manville Sales Corp., 595 F.Supp. 971 (D.N.J.1984) (New Jersey law does not preclude plaintiffs from seeking punitive damages in failure-to-warn, strict products liability cases), and Cinnaminson Township Bd. of Educ. v. U.S. Gypsum, 552 F.Supp. 855 (D.N.J. 1982) (New Jersey law clearly allows recovery of punitive damages in strict products liability cases). Nor will we dictate trial tactics for the plaintiffs’ bar. A plaintiff who succeeds in proving the willful, egregious conduct that will support punitive damages is one who surely could have proved negligent, or intentional, tortious conduct. A decision to rely only on strict liability to establish liability of a defendant is a matter of strategy well within the discretion of counsel.

Defendant argues that allowing proofs of a defendant’s misconduct in a strict liability case invites the risk of confusing juries. Presumably the fear is that jurors will be unable in their evaluation of the strict liability claim to disregard whatever evidence there may be of defendant’s misconduct, and hence will be unable to return a fair verdict. The fear is unfounded. Our faith in the jury system is greater than the argument suggests. Juries are often called on to consider alternative theories and to conduct deliberations in stages, as when given interrogatories or a special verdict sheet. See Rule 4:39-2, Rule 4:39-1. We are confident that a careful charge, clearly explaining the elements necessary for each finding, can assist juries in reaching fair verdicts on both the liability phase and, should they reach the question, punitive damages in a failure-to-warn, strict products liability case.

Finally, we note that today’s decision puts New Jersey in line with the many other jurisdictions that have considered the “incompatibility” of strict liability and punitive damages: they are virtually unanimous in finding them compatible. We supplement the impressive list of authorities marshalled by Judge Pressler in 193 N.J.Super. at 122-23 with the following: Jackson v. Johns-Manville Sales Corp., 781 F.2d 394 (5th Cir.), cert. denied, — U.S. -, 106 S.Ct. 3339, 90 L.Ed.2d-(1986) (Mississippi law); Cathey v. Johns-Manville Sales Corp., 776 F.2d 1565 (6th Cir.1985) cert. denied, — U.S. -, 106 S.Ct. 3335, 90 L.Ed.2d (1986) (Tennessee law); Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322 (8th Cir.1985) (Missouri law); Hansen v. Johns-Manville Prods. Corp., 734 F.2d 1036 (5th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985) (Texas law); Palmer v. A.H. Robins Co., 684 P.2d 187 (Colo.1984); Johns-Manville Sales Corp. v. Janssens, 463 So.2d 242 (Fla.Dist.Ct.App.1984), review denied, 467 So.2d 999 (Fla.1985); United School Dist. No. 490 v. Celotex Corp., 6 Kan.App.2d 346, 629 P.2d 196 (1981); cf. Robinson v. Audi NSU Auto Union Aktiengesellschaft, 739 F.2d 1481 (10th Cir.1984) (Oklahoma law) (in strict products liability suit proof of actual damages is prerequisite to punitive damages).

Ill

Having determined that no theory of law forecloses the award of punitive damages in a failure-to-warn, strict products liability action, we turn to the policy concerns that defendant poses as obstacles to our decision. Our discussion applies to asbestos mass-tort litigation, inasmuch as it is in that context that defendant chooses to present the issue.

One characteristic of this kind of litigation is that it occurs years after the exposure to asbestos, and hence long after the underlying tortious conduct that creates liability. Asbestos-related diseases generally have long latency periods. For example, asbestosis manifests itself ten to forty years after exposure, and pulmonary and bronchogenic carcinoma (lung cancer) typically occurs fifteen to thirty-five years after exposure.²

The remoteness of the tortious conduct spawns arguments that it would be inequitable to impose punitive damages in litigation that does not take place until years after the offending event. One such argument posits that changing social values render punishable conduct that would never have been punished at the time it occurred. Professor David Owen cautions against overlooking the prevailing moral and business standards of the time involved. Owen, “Problems in Assessing Punitive Damages Against Manufacturers of Defective Products,” 49 U.Chi.L.Rev. 1,13-14 (1982) (Owen II). In an earlier article Professor Owen grouped “manufacturer misconduct” into five categories: (1) fraudulent-type, affirmative conduct designed to mislead the public, (2) knowing violations of safety standards, (3) inadequate testing and quality-control, manufacturing procedures, (4) failure to warn of known dangers, and (5) post-marketing failures to remedy known dangers. Owen I, supra, 74 Mich. L. Rev. at 1329-61.

We do not perceive that any “changing social values” are implicated in this case, which we view as falling within Professor Owen’s categories one and four. Punitive damages were available in this state well before James Fischer was exposed to asbestos. See, e.g., Allen v. Craig, 13 N.J.L. 294 (Sup.Ct.1833). We cannot imagine that the conduct proven in this case would have been viewed as any less egregious in the 1940’s, when the exposure commenced, than it is today. In this connection we share the Appellate Division’s reaction to defendant’s “knowingly and deliberately * * * subjecting [James Fischer] as an asbestos worker to serious health hazards with utter and reek-less disregard of his safety and well-being.” 193 N.J.Super. at 131.

It is indeed appalling to us that Johns-Manville had so much information on the hazards to asbestos workers as early as the mid-1930’s and that it not only failed to use that information to protect these workers but, more egregiously, that it also attempted to withhold this information from the public. It is also clear that even though Johns-Manville may have taken some remedial steps decades ago to protect its own employees, it apparently did nothing to warn and protect those who, like plaintiff, were employed by Johns Manville customers engaged in the manufacture and fabrication of asbestos products. [Ibid.]

Another concern created by the time gap between exposure and litigation is that the corporate personnel who made the decisions at the time of the exposure are no longer with the defendant company, possibly no longer alive. From this fact it is argued that punitive damages are inappropriate because they will not punish the true wrongdoers. But as many courts have observed, this contention ignores the nature of a corporation as a separate legal entity. See, e.g., Johns-Manville Sales Corp. v. Janssens, supra, 463 So.2d at 252; Gogol v. Johns-Manville Sales Corp., supra, 595 F.Supp. 971. Although the responsible management personnel may escape punishment, the corporation itself will not. “It is agency at the time of the tortious act, not at the time of litigation, that determines the corporation’s liability.” Moran v. Johns-Manville Sales Corp., 691 F.2d 811, 817 (6th Cir.1982). We are reminded that a primary goal of punitive damages is general deterrence — that is, the deterrence of others from engaging in similar conduct. See Mallor and Roberts, supra, 31 Hastings L.J. at 648-49. That purpose is, of course, well served regardless of changes in personnel within the offending corporation.

A related argument, which similarly ignores the legal nature of corporations, is that punitive damages unfairly punish innocent shareholders. This argument has been rejected repeatedly. E.g., Wangen v. Ford Motor Co., 97 Wis.2d 260, 289, 294 N.W.2d 437, 453 (1980); Martin v. Johns-Manville Sales Corp., 322 Pa.Super. 348, 365-69, 469 A.2d 655, 664-65 (1983), rev’d on other grounds, 508 Pa. 154, 494 A.2d 1088 (1985). It is the corporation, not the individual shareholders, that is recognized as an ongoing legal entity engaged in manufacturing and distributing products. True, payment of punitive damages claims will deplete corporate assets, which will possibly produce a reduction in net worth and thereby result in a reduction in the value of individual shares. But the same is true of compensatory damages. Both are possible legal consequences of the commission of harmful acts in the course of doing business. To the same extent that damages claims may affect shareholders adversely, so do profitable sales of harmful products redound to their benefit (at least temporarily). These are the risks and rewards that await investors. Also, we would not consider it harmful were shareholders to be encouraged by decisions such as this to give close scrutiny to corporate practices in making investment decisions.³

Another characteristic of asbestos litigation is found in the startling numbers that reflect the massive amount of litigation generated by exposure to asbestos. Although we are mindful of the fact that the case before us involves one worker, whose exposure to asbestos caused legally compensable injury to him and his wife — it is not a class action, not a “mass” case — nevertheless we would be remiss were we to ignore the society-wide nature of the asbestos problem. Recognizing the mass-tort nature of asbestos litigation, we address the concerns that that characteristic of the litigation brings to a decision to allow punitive damages.

Studies show that between eleven million and thirteen million workers have been exposed to asbestos. Special Project, “An Analysis of the Legal, Social, and Political Issues Raised by Asbestos Litigation,” 36 Vand.L.Rev. 573, 580 (1983). More than 30,000 lawsuits have been filed already for damages caused by that exposure, with no indication that there are no more victims who will seek redress. Of the multitude of lawsuits that are faced by asbestos defendants as a group, Johns-Manville alone has been named in more than 11,000 cases. New claims are stayed because Johns-Manville is attempting reorganization under federal bankruptcy law. In re Johns-Manville Corp., 26 B.R. 420 (Bankr.S.D.N.Y.1983).

Defendant argues that the amount of compensatory damages assessed and to be assessed is so great that it will effectively serve the functions of punitive damages — that is, defendants are more than sufficiently punished and deterred. We are not at all satisfied, however, that compensatory damages effectively serve the same functions as punitive damages, even when they amount to staggering sums. Compensatory damages are often foreseeable as to amount, within certain limits difficult to reduce to a formula but nonetheless familiar to the liability insurance industry. Anticipation of these damages will allow potential defendants, aware of dangers of a product, to factor those anticipated damages into a cost-benefit analysis and to decide whether to market a particular product. The risk and amount of such damages can, and in some cases will, be reflected in the cost of a product, in which event the product will be marketed in its dangerous condition.

Without punitive damages a manufacturer who is aware of a dangerous feature of its product but nevertheless knowingly chooses to market it in that condition, willfully concealing from the public information regarding the dangers of the product, would be far better off than an innocent manufacturer who markets a product later discovered to be dangerous — this, because both will be subjected to the same compensatory damages, but the innocent manufacturer, unable to anticipate those damages, will not have incorporated the cost of those damages into the cost of the product. All else being equal, the law should not place the innocent manufacturer in a worse position than that of a knowing wrongdoer. Punitive damages tend to meet this need.⁴

Defendant argues further that the cumulative effect of punitive damages in mass-tort litigation is “potentially catastrophic.” The Johns-Manville bankruptcy is offered as proof of this effect. We fail to see the distinction, in the case of Johns-Man-ville, between the effect of compensatory damages and that of punitive damages. The amount of punitive damages and the determination that they would cause insolvency that could be avoided in their absence are so speculative as to foreclose any sound basis for judicial decision. See also Jackson v. Johns-Manville, supra, 781 F.2d at 403 n. 11 (“defendants * * * do not indicate why their ability to pay future damage awards will be more affected by punitive damage awards than by the multiplicity of compensatory damage awards.”).

Heretofore the typical setting for punitive damage claims has been the two-party lawsuit in which, more often than not, a punitive damages award was supported by a showing of some element of malice or intentional wrongdoing, directed by a defendant to the specific plaintiff. Even if the actual object of the malicious conduct was unknown to defendant, the conduct nevertheless was directed at a single person or a very limited group of potential plaintiffs.

Punishable conduct in a products liability action, on the other hand, will often affect countless potential plaintiffs whose identities are unknown to defendant at the time of the culpable conduct. We agree with the Illinois court that the mere fact that a defendant, “through outrageous misconduct, * * * managefs] to seriously injure a large number of persons” should not relieve it of liability for punitive damages. Froud v. Celotex Corp., 107 Ill.App.3d 654, 658, 63 Ill.Dec. 261, 264, 437 (1982), rev’d on other grounds, 98 Ill.2d 324, 74 Ill.Dec. 629, 456 N.E.2d 131 (1983).

Of greater concern to us is the possibility that asbestos defendants’ assets may become so depleted by early awards that the defendants will no longer be in existence and able to pay compensatory damages to later plaintiffs. Again, it is difficult if not impossible to ascertain the additional impact of punitive damages as compared to the impact of mass compensatory damages alone.

Many of the policy arguments against punitive damages in mass tort litigation cases can be traced to Roginsky v. Richardson-Merrell, Inc., 378 A! 2d 832 (2d Cir.1967). The Roginsky court denied punitive damages to a plaintiff who suffered cataracts caused by MER/29, an anti-cholesterol drug. Although the denial of punitive damages rested on a determination that the evidence was insufficient to send the matter to the jury, the court expressed several concerns over allowing punitive damages for injuries to multiple plaintiffs. The fear that punitive damages would lead to “overkill” turned out to be unfounded in the MER/29 litigation. Approximately 1500 claims were made, of which only eleven were tried to a jury verdict. Punitive damages were awarded in only three of those cases, one of which was reversed on appeal. (Roginsky, supra, 378 F.2d 832.) Owen I, supra, 74 Mich.L.Rev. at 1324, 1330 n. 339. While we do not discount entirely the possibility of punitive damage “overkill” in asbestos litigation, we do recognize that the vast majority of cases settle without trial.

Accepting the possibility of punitive damage “overkill,” we turn to means of addressing that problem. Because the problem is nationwide, several possible remedial steps can be effective only on a nationwide basis, and hence are beyond our reach. One such solution is the setting of a cap on total punitive damages against each defendant. E.g., Owen II, 49 U. Chi.L.Rev. at 48-49 & n. 227. Such a cap would be ineffective unless applied uniformly. To adopt such a cap in New Jersey would be to deprive our citizens of punitive damages without the concomitant benefit of assuring the availability of compensatory damages for later plaintiffs. This we decline to do.

Perhaps the most likely solution to the problem of cumulative punitive damages lies in the use of a class action for those damages. Froud v. Celotex Corp., supra, 107 Ill.App.3d at 657-60, 63 Ill.Dec. at 264-65, 437 N.E.2d at 913-14. Several courts have recognized the need to streamline and consolidate issues that come up repeatedly in asbestos litigation. For instance, the non-availability of the state-of-the-art defense was decided in a consolidated case governing all asbestos cases in the federal district of New Jersey. In re Asbestos Litigation, 628 F.Supp. 774 (D.N.J.1986). Another federal district court certified a class of all plaintiffs in personal injury asbestos cases pending in the Eastern District of Texas, for purposes of determining both the availability of a state-of-the-art defense and punitive damages. Jenkins v. Raymark Indus., 109 F.R.D. 269 (E.D.Tex.1985), aff’d, 782 F.2d 468 (5th Cir.1986), reh’g denied, 785 F.2d 1034 (5th Cir.1986)

Prerequisites to class certification under Federal Rule of Civil Procedure 23(a) are:

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interest of the class.

Additional requirements include a finding that

the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. \Fed.R.Civ.P. 23(b)(3).]

A mandatory class may be certified if (1) the prosecution of separate actions by or against individual members of the class would create a risk of

(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or

(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interest. [Fed.R. Civ.P. 23(b)(1).]

Several courts have recognized the usefulness of class certification in mass tort cases. E.g., Jenkins v. Raymark Indus., supra, 109 F.R.D. 269; In re “Agent Orange"Product Liability Litigation, 100 F.R.D. 718 (E.D.N.Y.) certif. den., 100 F.R.D. 735 (D.N.Y.1983) (class certified for affirmative defenses and causation issues, mandatory certification on punitive damages). Although some appellate courts have decertified classes in mass products liability actions, those same courts have nonetheless recognized the validity of the class action mechanism. The federal district court for the Eastern District of Pennsylvania certified a nationwide class of plaintiff school authorities in asbestos property damage cases. In re Asbestos School Litigation, 104 F.R.D. 422 (1984), rev’d, 789 F.2d 996 (3d Cir.1986). The class was mandatory for punitive damages and “opt-out” for compensatory damages. The Third Circuit acknowledged the possibility that the concerns generated by mass tort cases might justify certification of a mandatory nationwide class for purposes of punitive damages. 789 F.2d at 1005. The class was decertified, however, because certification rested on insufficient factual findings and the class was underinclusive, affecting neither personal injury claimants nor non-school property damage plaintiffs. 789 F.2d at 998, 1005-06. See also In re Northern District of California, Dalkon Shield IUD Prods. Liability Litigation, 693 F.2d 847 (9th Cir.1982), cert. denied, 459 U.S. 1171, 103 S.Ct. 817, 74 L.Ed.2d 1015 (1983) (hereinafter Daikon Shield) (nationwide class decertified because requirements of “typicality” and superiority of class action over individual adjudication not met). For a thoughtful analysis of the advantages and problems of resolving mass tort punitive damage claims through the class-action technique, see Seltzer, “Punitive Damages in Mass Tort Litigation,” 52 Fordham L.Rev. 37, 61-92 (1983).

Defendants as well as plaintiffs can seek class certification. See Daikon Shield, supra, 693 A. 2d at 849 n. 2. In addition, the asbestos industry itself is free to — and has begun to — develop alternatives and supplements to federal class action. A step in this direction is the establishment of the Asbestos Claims Facility pursuant to the Wellington Agreement, an organization whose purpose is to establish expeditious and uniform settlement, payment, or defense of asbestos-related claims.⁵

At the state court level we are powerless to implement solutions to the nationwide problems created by asbestos exposure and litigation arising from that exposure. That does not mean, however, that we cannot institute some controls over runaway punitive damages. When a defendant manufacturer engages in conduct warranting the imposition of punitive damages, the harm caused may run to countless plaintiffs. Each individual plaintiff can fairly charge that the manufacturer’s conduct was egregious as to him and that punitive damages should be assessed in his lawsuit. “Each tort committed by the defendant is individual and peculiar to that particular plaintiff who has brought suit.” Neal v. Carey Canadian Mines, 548 F.Supp. 357, 377 (E.D.Pa.1982), aff’d sub nom. Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481 (3d Cir.1985). Nonetheless, there should be some limits placed on the total punishment exacted from a culpable defendant. We conclude that a reasonable imposition of those limits would permit a defendant to introduce evidence of other punitive damage awards already assessed against and paid by it, as well as evidence of its own financial status and the effect a punitive award would have. We note with approval that this approach has already been looked on with favor by our trial courts. See Brotherton v. Celotex Corp., 202 N.J.Super. 148, 163 (Law Div.1985).

We realize that defendants may be reluctant to alert juries to the fact that other courts or juries have assessed punitive damages for conduct similar to that being considered by the jury in a given case. Although the evidence may convince a jury that a defendant has been sufficiently punished, the same evidence could nudge a jury closer to a determination that punishment is warranted. That is a risk of jury trial. The willingness to accept that risk is a matter of strategy for defendant and its counsel, no different from other strategy choices facing trial lawyers every day.

When evidence of other punitive awards is introduced, trial courts should instruct juries to consider whether the defendant has been sufficiently punished, keeping in mind that punitive damages are meant to punish and deter defendants for the benefit of society, not to compensate individual plaintiffs.

A further protection may be afforded defendants by the judicious exercise of remittitur. Should a trial court determine that an award is “manifestly outrageous” or “grossly excessive,” Cabakov v. Thatcher, supra, 37 N.J.Super. at 260, it may reduce that award or order a new trial on punitive damages. In evaluating the excessiveness of challenged punitive damage awards, trial courts are expressly authorized to consider prior punitive damage awards.

IV

Defendant argues that even if punitive damages are allowed in strict products liability, mass tort actions, they should not have been assessed against Johns-Manville in this action. We disagree.

We hold that punitive damages are available in failure-to-warn, strict products liability actions when a manufacturer is (1) aware of or culpably indifferent to an unnecessary risk of injury, and (2) refuses to take steps to reduce that danger to an acceptable level. This standard can be met by a showing of “a deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences.” Berg v. Reaction Motors, supra, 37 N.J. at 414. Judge Brody’s charge at the trial level incorporated the elements necessary to satisfy this standard. The trial court described the conduct necessary to warrant the imposition of punitive damages as “intentionally inflicting harm or acting in such a gross, wanton way, such a terrible way, so recklessly in disregard of what might happen to someone * * *.” This language amply conveyed the requisite level of conduct, and, for purposes of this case, may be deemed the equivalent of the Berg case’s formulation, adopted above.

Judge Brody alerted the jury, at the very outset of the charge, that plaintiffs’ claims for punitive damages “involve considerations which in some respects are quite different from your concern with respect to compensatory damages.” This careful approach was adhered to throughout the charge. The court informed the jury of the purposes of compensatory damages and admonished the jurors not to use punitive damages to compensate the plaintiffs. It reminded the jury on more than one occasion not to consider defendant’s conduct for purposes of assessing compensatory damages. The charge was more than sufficient to protect the legitimate interests of the defendant.

We have set forth in considerable detail the evidence presented to the jury in support of the punitive damages claim, supra at 648-651. The voluminous exhibits, answers to requests for admissions, answers to interrogatories, correspondence, and testimony on oral depositions fully justify the Appellate Division’s appraisal of the “proofs respecting Johns-Man-ville” as “indeed [ ] overwhelming.” 193 N.J.Super. at 117. We are satisfied that a jury could reasonably have concluded that defendant was guilty of deliberate acts or omissions “with knowledge of a high degree of probability of harm and reckless indifference to the consequences.” Berg v. Reaction Motors, supra, 37 N.J. at 414. In particular, the evidence supports a finding that Johns-Manville knew of the dangers created by its product. Not only did it fail to warn users of the serious health hazards associated with exposure to asbestos, it actually took affirmative steps to conceal this information from the public. These actions fully warranted the jury’s imposition of punitive damages.

V

Even though defendant challenged neither the trial court’s charge to the jury nor the amount of punitive damages awarded in this case, we consider those issues of sufficient importance to warrant the following comments as a guide in future cases.

Because product safety is the paramount concern of products liability law, it is indifference to or disregard of the dangers posed by the product in its defective state that should be the key factor in justifying an award of punitive damages in a failure-to-warn, strict products liability action. When punitive damages are sought as part of a failure-to-warn claim, the court must be especially cautious in instructing the jury regarding the elements that define each and the evidence that may be considered in support of, on the one hand, strict products liability and, on the other, the damages that that liability can support by way of punishment of the defendant manufacturer or distributor of the defective product. The jury must not be misled into believing that the distinct elements of either are a requirement of or necessarily relevant to the other.

The purpose and nature of punitive damages must be carefully explained to the jury. In determining whether a defendant’s conduct was sufficiently egregious to justify punitive damages, fact-finders should consider the seriousness of the hazard to the public; the degree of the defendant’s awareness of the hazard and of its excessiveness; the cost of correcting or reducing the risk; the duration of both the improper marketing behavior and its cover-up; the attitude and conduct of the enterprise upon discovery of the misconduct; and the defendant’s reasons for failing to act. See Owen I, supra, 74 Mich.L.Rev. at-; Thiry v. Armstrong, supra, 661 P.2d at 519; Gryc v. Dayton-Hudson, 297 N.W.2d 727, 739 (Minn.), cert. denied, 449 U.S. 921, 101 S.Ct. 320, 66 L.Ed.2d 149 (1980).

If a fact-finder decides to award punitive damages, additional considerations can guide a determination of the appropriate amount. Punitive damages should bear some reasonable relationship to actual injury, but we have consistently declined to require a set numerical ratio between punitive and compensatory damages. Nappe, supra, 97 N.J. at 50; Leimgruber, supra, 73 N.J. at 457-58. The reasonableness of the relationship of punitive damages to actual injury must be considered in light of other factors in each case. For example, some particularly egregious conduct may generate only minimal compensatory damages. In such cases higher punitive damages would be justified than when substantial compensatory damages are awarded. The profitability of the marketing misconduct, where it can be determined, is relevant. Other factors to be considered include the amount of the plaintiff’s litigation expenses, the financial condition of the enterprise and the probable effect thereon of a particular judgment, and the total punishment the enterprise will probably receive from other sources.

Finally, there looms the question of the quality of proof required to sustain a punitive damages award. Our dissenting colleagues urge adoption of a “clear and convincing” standard to replace New Jersey’s traditional “preponderance of the evidence” rule. The dissent makes a persuasive argument to support such a change and has cited policy considerations that deserve careful consideration.

However, the fact remains that the parties have not briefed or argued that issue, nor have the courts below addressed it. So significant a shift in our law should come, if at all, only after it has been fully litigated. Under the circumstance we are content to leave for another day the definitive resolution of so portentous a question.

Judgment affirmed.

1 'Johns-Manville defendants" includes Johns-Manville Corporation; Johns Manville Sales Corporation, successor to and in lieu of Johns-Manville Products Corporation; Johns-Manville Canada, Inc., formerly known as Canadian Johns-Manville Co., Ltd.; and Johns-Manville Amiante Canada, Inc., formerly known as Canadian Johns-Manville Asbestos, Ltd. After the start of this suit, Johns-Manville Canada, Inc. and Johns-Manville Amiante Canada, Inc. changed their names to JM Asbestos, Inc. and 126692 Canada, Inc., respectively, and thereafter were amalgamated with a third corporation. The resultant corporation now conducts business under the name of JM Asbestos, Inc.

2 Asbestosis is a progressive and incurable disease in which a scarring process initiated by the inhalation of asbestos fibers destroys air sacs in healthy lung tissue, causing a decrease in pulmonary function and lung volume. Lung cancer caused by asbestos occurs in the lower lobes of the lungs and is, like asbestosis, incurable. Mesothelioma, another of the most common asbestos-related disabilities, is a malignant tumor of the membrane lining the lungs and the chest and abdominal cavities. It also is a latent disease, and is invariably fatal. Special Project, "An Analysis of the Legal, Social, and Political Issues Raised by Asbestos Litigation," 36 Vand.L.Rev. 573, 579 & nn. 10-12 (1983).

3 The expectation is not unrealistic. Although it surely is not the province of this opinion to express any view on the merits of the phenomenon, we note the wide-scale withdrawal of invested funds from companies doing business in South Africa — an expression of public reaction to apartheid.

4 In addition, it is questionable how much punishment is effected by compensatory damages alone, which are generally covered by liability insurance. We consider our observation in that regard to be valid despite a restricted insurance market and increasing insurance costs.

5 It is also possible that the needs of future plaintiffs will be attended to, as to defendants in bankruptcy, by innovative procedures in the federal Bankruptcy Courts, such as reduced priority for punitive damages claims as a condition of a reorganization plan.