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ElizabethNew Jersey – Asbestos Company – $30.3 Million Mesothelioma Verdict
N.J. Court Affirms Record $30.3 Million Award in Asbestos Exposure Case
New Jersey Law Journal
April 06, 2010
ANew Jersey appeals court on Monday upheld a$30.3 million verdict in anasbestos-exposure mesothelioma case, the largest known award in the state.
The defendants lost on every issue, including the standard of causation to be applied in light of the plaintiff's short history of working withasbestos-laden materials.
The suit, Buttitta v. Allied Signal, A-5263-07, was brought by Susan Buttitta whose husband, Mark, a 50-year-old advertising executive fromGlenRidge, died from mesothelioma in 2002, a year after he was diagnosed.
In February 2008, aBergenCounty jury awarded damages of $8 million for pain and suffering; $2 million for loss of consortium; $9,281,660 for lost earnings; $2,030,544 for loss of services; and $3 million to each of Buttitta's three daughters for loss of parental care.
Dozens of companies were sued but only two -- Borg-Warner Corp. and Asbestos Corp. Ltd. -- were the left by the time of the verdict. Two others, C.L. Zimmerman Co. and Honeywell International, settled during trial, while General Motors Corp. settled beforehand, all three on confidential terms.
The suit combined direct exposure claims characteristic of traditional asbestos litigation with indirect or "take home" exposure, as recognized by the state Supreme Court in Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006).
Buttitta was allegedly exposed as a child to asbestos by his father, who handled brakes and clutches containing asbestos working at a GM warehouse inBloomfield and carried the fibers home on his work clothes.
Buttitta also encountered asbestos directly in the early 1970s, when he was in college and spent summers and winter breaks working at a GM warehouse inEnglewood handling auto parts.
On appeal, Borg-Warner and Asbestos Corp. raised such issues as what standard of causation applies in a mesothelioma case; whether a preliminary hearing was needed to admit testimony of the plaintiff's expert; whether liability should be allocated against the settling defendants; and whether remittitur should have been granted.
On causation, the appeals judges agreed with Superior Court Judge Brian Martinotti that the "frequency, regularity and proximity" test for asbestosis cases should be viewed differently in the context of a claim involving mesothelioma which, unlike asbestosis, can develop from infrequent exposure to a relatively small amount of asbestos.
Thus, Buttitta's "rather brief work history" with asbestos was sufficient to establish medical causation of mesothelioma 30 years later, Judges Francine Axelrad, Clarkson Fisher and Paulette Sapp-Peterson held in a per curiam unpublished opinion.
Another causation-related issue was Martinotti's decision to allow deposition testimony from an unrelated case inTexas to be read to the jury.
Part of Borg-Warner's defense was that its asbestos-related products were not present in the GM warehouse when Buttitta worked there. It was tough to prove because Borg-Warner had destroyed its records of sales to GM facilities inNew Jersey when it got out of the clutch business.
The disputed testimony was from John Froning, former manager of GM's clutch and manual transmission group, who testified in theTexas case that from the early 1960s to the mid-1980s Borg-Warner was GM's "prime" supplier of clutches.
Borg-Warner tried to keep out Froning's testimony as irrelevant, but the appeals court agreed with Martinotti that the real question was whether the testimony was too circumstantial, which was for the jury to decide.
The panel also saw no merit in Borg-Warner's argument that Martinotti should have held a hearing on whether to admit the testimony of plaintiff's experts. The company called "novel and unsupported" their opinions that asbestos fibers in Buttitta's biopsied lung tissue were consistent with occupational rather than background exposure, that there was no safe level of exposure and that Buttitta's exposure caused his mesothelioma.
The appeals court said it didn't matter that no expert could identify the specific asbestos-containing product causing the mesothelioma, given Buttitta's testimony about having handled dust-covered boxes and automobile parts.
The judges also rejected the argument that part of the verdict should be allocated against settling defendants GM, Honeywell and Zimmerman, finding no error in Martinotti's denial of a request to include them on the verdict sheet. There was insufficient evidence to allocate liability, the court said, despite evidence that Buttitta was exposed to asbestos-containing parts made by all three and the fact that a reasonable jury could conclude that those other parts were concurrent causes of his death.
Borg-Warner also lost its argument that the $11,030,544 awarded for loss of spousal and parental services was excessive and should have been remitted to $1,088,754, the amount set by the plaintiff's expert.
The appeals judges deferred to Martinotti's "feel of the case" in denying remittitur, saying the award "may have been generous, as recognized by the judge, but it was based on the undisputed evidence that Mark was an active and engaged father, and would have been expected to provide significant intangible services to his children such as guidance, training and counseling."
Asbestos Corp., a Quebec, Canada, company that supplied asbestos to GM and Zimmerman, unsuccessfully appealed rulings that found New Jersey courts had personal jurisdiction over the company and imposed sanctions -- striking its answer and defenses and limiting its role at trial -- for its failure to comply with discovery rulings that allegedly clashed with Quebec law.
Arnold Lakind, of Szaferman, Lakind, Blumstein & Blader in Lawrenceville who argued the appeal for the plaintiff, says he is not aware of a larger mesothelioma verdict in the state.
The second largest one he knows of is also one of his cases, a $7.8 million verdict against ExxonMobil in May 2008. Plaintiff Bonnie Anderson claimed she contracted mesothelioma from laundering clothing worn by her husband to his job at the Exxon Bayway Refinery inElizabeth. Oral argument of ExxonMobil's appeal is set for April 26.
Borg-Warner's attorney, Paul Zidlicky of Sidley Austin inWashington,D.C., declines comment. The company, now known as Burns International Services Corp., was also represented by Norah Grimbergen of Hoagland Longo Moran Dunst & Doukas inNew Brunswick.
Deborah Knight, of Goldfein & Joseph inPhiladelphia, the lawyer for Asbestos Corp., did not return a call.