*1 its discretion under the rules fied the Division will exercise wisely and in the interests of the children involved. best
V reasons, regulations foregoing we conclude that the For agency beyond authority of the are not defective as every application facially in that their will unconstitutional rights Any of the involved. due-process individuals offend in accord- subsequent of the rules should be conducted revision modified, expressed opinion. in this As principles ance with Appellate Division is affirmed. judgment WIL- For and affirmance —Chief Justice modification POLLOCK, CLIFFORD, HANDLER, ENTZ, and Justices O’HERN, and STEIN —7. GARIBALDI
Opposed —None. FISCHER, PLAINTIFFS-RESPON FISCHER AND GENEVA JAMES CORPORATION, DENTS, JOHNS-MAN v. JOHNS-MANVILLE CORPORATION, SALES JOHNS-MANVILLE VILLE PRODUCTS ASBESTOS, CORPORATION, CANADIAN JOHNS-MANVILLE CO., LTD., LTD., CANADIAN JOHNS-MANVILLE CANADIAN COMPANY, LTD., DEFENDANTS- MINING JOHNS-MANVILLE MINES, LTD., APPELLANTS, DEFEND BELL ASBESTOS AND ANT. Decided July1986.
Argued 1 984 November *4 argued David R. appellants (Budd, Gross cause for Lamer, Kent, Gross, Rosenblum, attorneys; Picillo & David Novak, counsel; Lombardi, J. brief). Sebastian P. on the argued (Ronald Karl respondents Asch the cause for S. Suss, brief). on the opinion
The of the Court by was delivered CLIFFORD, J. Fischer,
Plaintiff wife, James Fischer and Geneva his brought against multiple suit seeking defendants to recover lung diseases suffered James Fischer as a exposure result of his complaint sought to asbestos. The compensatory defendants-suppliers from negligence, of asbestos under warranty, breach of and strict products liability press theories. Plaintiffs elected to at trial only the strict compensatory cause of action for dam- ages, they sought punitive damages. while at the same time There were dismissals of numerous defendants before and trial, during leaving only at the close of trial the Johns-Manville (hereinafter defendant) defendants1 Johns-Manville or and Bell Mines, (Bell). Asbestos Ltd. trial, jury.
The case was tried to jury At the close of $86,000 compensatory damages awarded to James Fischer $5,000 jury to Geneva Fischer. The found Jоhns-Manville eighty percent twenty percent jury liable and Bell liable. $300,000 also punitive damages, awarded James Fischer $240,000 $60,- against which was assessed Johns-Manville and against appealed Appellate Bell. Both defendants and the entirety judgment Division affirmed its of the trial court. (1984). N.J.Super. Corporation; 1'Johns-Manville defendants" Johns-Manville includes Johns Corporation, Manville Sales successor to and in lieu of Johns-Manville Prod Canada, Inc., Corporation; formerly ucts Johns-Manville known Canadian Co., Ltd.; Canada, Inc., formerly Johns-Manville and Johns-Manville Amiante Asbestos, suit, known as Canadian Johns-Manville Ltd. After the start of this Canada, Canada, Johns-Manville Inc. and Johns-Manville Amiante Inc. Asbestos, Canada, Inc., changed respective their names to JM Inc. and 126692 ly, amalgamated corporation. and thereafter were with a third The resultant Asbestos, corporation now conducts business under the name of JM Inc. *5 dispute the award did not In the court below Johns-Manville “challenge either the damages, nor did it compensatory judge’s or the trial punitive allowed amount of jury was to respecting the standards which instructions damages.” 193 considering punitive apply in an award punitive Rather the contentions were that NJ.Super, at 120. product liability at all” in strict damages are “not allowable are,- actions, ibid, they proofs if were inade- and that even “outrageous conduct necessary standard of to meet the quate others,” ibid, rights disregard of the both in deliberate of. Appellate rejected. Division contentions which certification, (1984), after which granted N.J. We general appeal. In addition to its Bell withdrew its defendant great public impor- us is one of argument that the case before Appellate tance, petition urges that the Divi- Johns-Manville’s Jersey counter to decisions New determination runs sion’s As well requires and thus clarification. federal district courts below, (1) arguments made repeats on strict conceptually flow” from a claim based “cannot warn, (2) purpose” in punitive damages “serve no for failure to (3) support does not litigation, and the record asbestos mass As damages against Johns-Manville. did finding Division, therefore reject those contentions. We Appellate we affirm..
I background requires of this case understanding of the A full out in repetition pertinent facts set fairly extensive Appellate comprehensive opinion for the Divi- Judge Pressler’s sion. Millington, Limited in Fischer worked for Asbestos
James again in 1945. until and then County, Morris from 1938 bagging duties included During employment his his varied fiber, mixing fiber, into grinding asbestos ore asbestos materials for the manufacture fibers with other asbestos *6 through insulation materials. From 1942 from 1945 and worker; through 1947 Fischer toiled as farm in 1947 he took employment National Company with Starch Chemical in Plain- only exposure field. working His to asbestos was while at During cautionary Asbestos Limited. that time he received no warnings dangers asbestos, any about nor was he instructed handling by in the employer safe of asbestos either his or the materials, suppliers of asbestos identified at trial Johns-Man- ville and Bell. suspected might suffering
Fischer that he from asbestos- problems pulmonary related when in 1977 his disease first suspicions manifested itself. His in were confirmed given ultimately produced which time he was medication that diabetes, arthritis, osteopo- such side effects as rheumatoid and progress rosis. His thereafter continued downhill: 1979 he hospital entered the for treatment of bronchitis with borderline thereafter, pneumonia; although experi- he returned to work he February years enced a heart attack in he when was treating physician old. He has not worked since. His attrib- disability lung uted his total as due to chronic obstructive 30% smoking, exposure disease traceable to to asbestos and the 60% prescribed pulmonary prob- side effects of the medication lems, and to the heart condition. 10% Division, Appellate focusing
The on what Johns-Manville it, and narrowed the issue to defendant’s knew when knew knowledge.” N.J.Super. “actual at 117. It viewed the controversy” “essential as whether defendants “did in fact have knowledge during of the hazards of the time of asbestos ago” “essential,” plaintiff’s exposure years some 45 because — plaintiffs’ punitive damage hinged claim on their contention early hazards as as the 1930’s that “defendants knew these this and had made a conscious business decision to withhold public.” particular, plaintiffs information from the Ibid. defendants, risks, knowledge full contended that “with give warnings deliberately chose not to those to users of the product, might protection have them to which enabled obtain Ibid. prolonged exposure.” It was this conduct
from “outrageous flagrant,” disregard plaintiffs labelled as and subjected defendants “the substantial health risks which * * “justified imposition public *.” That conduct therefore Ibid. damages.” Appellate support Division summarized evidence allegations those as follows. interrogatories, jury, in its answers to which were read to the
Johns-Manville, admitted that became aware of the between asbestos and the [t]he corporation relationship among mining, milling disease known as asbestosis workers involved in manufacturing high levels of raw virtually 100% operations exposed long over of time 1930s. The asbestos fibers periods early corporation *7 general and become aware of the state of the medical art has followed to and its to disease if relative asbestos relationship processes, any. jury, In to also read to the admissions, response plaintiffs’ requests dangerous in admitted that 1940’s it knew that asbestos “was to the early health” of those industrial to amounts of workers who were excessive exposed the material. as a witness Dr. Daniel C. Plaintiffs, moreover, Braun, produced organization of the Industrial Health a research which Foundation, president accumulates and disseminates information about dis- develops, occupational eases. Dr. Braun testified that Johns-Manville has been a member of the Foundation since 1936. He also testified that since 1937 the Foundation has digest appearing journals sent to its a of articles in scientific members monthly digests, relate to disease. Relevant of the which which occupational portions into were admitted included references eleven scientific articles evidence, documenting grave between 1936 and 1941 hazards of published pulmonary discussing to asbestos and measures which could be taken to exposure protect being workers. Plaintiffs also that as as 1933 claims were made proved early against in workers, Johns-Manville asbestos and November of that by year authorizing Executive Committee of its Board of Directors a resolution passed of the president corрoration negotiations pending to enter into for the settlement of actions now any brought against hereafter former which bemay by employ- Corporation alleged injury resulting ees founded or disease from their upon employment in such such his to settle cases by Corporation and, discretion, any upon terms as he in his uncontrolled deem for the shall, advisable and discretion, best interest of the Corporation. high-level In December that of Johns-Manville met with year representatives major officials of another asbestos to discuss Raybestos-Manhattan, supplier, might which the as a whole take to reduce risk. It steps industry employee arrange that Johns-Manville never did for or in however, appears, participate meetings subject. meeting on the The minutes of that 1933 industry-wide any being for the time “our confirm the view that at least past also participants’ keeping this matter confidential is to be pursued.” policy damning most of all is the so-called Sumner Simpson correspondence Perhaps he 1941. was October of 1935 and Simpson president Raybestos. editor of the trade Rossiter, Asbestos, received a letter from a Miss periodical suggesting made “for certain obvious that earlier despite Simpson’s requests, relating time not be that articles to asbestosis reasons,” published, perhaps efforts to reduce the risk in had come to article about industry print positive given to it “to some of the rather undesirable [asbesto- order combat publicity sent a of the letter in current Simpson thereupon copy sis] newspapers.” expressing his that “the Johns-Manville’s Vandiver Brown, opinion secretary, stated in about the bеtter off we are.” Brown’s asbestos, reply part: less said agree having that our interests are best served asbestosis I with you quite if we should decide to receive the minimum of Even eventually publicity. objection on in the no to the of an article asbestosis raise publication magazine use American in I think we should warn the editors to question, subject English. Dr. Lanza has remarked, data on the rather than frequently the clinical to me and in some of his picture presented personally papers, dust hazard is American localities where there is an asbestos in North ' England and South Africa. milder than that considerably reported regarding Miss Brown wrote to later, Simpson Some seven years forthcoming a review of a include in a issue of Asbestos Rossiter’s proposal Noting linking asbestos with book exposure pneumoconiosis. apparently subject on this in the “a of her subscribers would dislike an article number magazine as a Brown the view that trade of the Asbestos Industry,” expressed she Miss “I am inclined to believe Rossiter, result of his communications with the book in will omit review of question.” any into evidence deposition read attorney excerpts Finally, plaintiffs’ to work for Johns- Kenneth who started Smith, W. physician testimony Director of its Canadian became Medical Manville 1944 and eventually beginning he that from the of his employment Dr. Smith testified corporation. regular and basis” and saw with asbestosis “on a frequent frequently persons *8 job receive reclassifications which recommendations that such made employees to asbestos dust. [193 N.J.Super. would remove them from continued exposure at 117-20.] respect in of the The court held that below claim, supported plaintiffs’ factu- proofs fully recited above Í93 jury’s acceptance of them. N.J.Su- al contentions and the position, succinctly appeal per. at 117. On this Johns-Manville’s legally stated, against it is punitive damages award is that policy litiga- public of impermissible, ill-advised as a matter nature, factually and unwarranted. tion of this
II “legally impermissible” argument The rests on an as inconsistency liability serted theoretical between pu strict and damages, preclude punitive damage nitive which would claims liability compensatory damages when for is founded on strict products liability doctrine, if not in all situations least in asbestos, liability per strict lawsuits. We hold there is no legal to pursuing liability, se bar a strict failure-to-warn claim punitive damage and the same case. For this claim purpose distinguish is no litigation there reason to asbestos products liability from other strict actions. A brief examination development of the purposes products liability and of strict and punitive damages may illuminate the nature of their differences clarify holding our that those not differences do create a failure-to-warn, bar to an award of in a strict products liability case. products
We trace current liability notions of strict both to principles warranty, hybrid of “freak born of illicit inter- contract,” Prosser, course of Upon tort “The Assault The Citadel,” (1960), 69 Yale L.J. and to tort strict-liabili- ty theory, primarily trespass involving found in cases or nui- personal injuries arising sance. For from a breach warran- ty, liability imposed upon “strict the maker seller or product. Recovery upon depend proof does not negligence knowledge or Henningsen defect.” Motors, Inc., (1960). For pаrt, N.J. its Bloomfield liability strict in tort rests on the notion that certain activities danger must, regardless reasonableness, create of their “pay own way in [they] actually the event [their] cause[ ] damagef Div., to others.” Berg v. Reaction Motors ] N.J. (1962).
From beginnings these there evolved the doctrine strict products liability as it today. we know doctrine strict liability imposes injury person tort to another’s property any without consideration the defendant’s intent to
653 of his moral blameworthi- injury, the act or cause commit sometimes been liability in tort has Although strict ness. “liability fault,” expression “liability without referred to as The “moral blame” is more accurate. moral blame” without applica- has little in the criminal law given to fault connotation sense in which “There is a broader law of torts. tion a standard of departure from nothing more than ‘fault’ means protection of his by society for the required person of a conduct Keeton, 535 The Law Torts Prosser and W. neighbors.” W. 1984), Angelo Foundry & (5th quoted in v. San ed. Suter (1979). 150, Co., 162 81 Mach. N.J. a defend- consideration of in strict tort contention that liability precludes [The] dispensing highly rather than fact, fault dubious. ant manufacturer’s strict tort law, theory expands from
with the notion of fault products extending legal manufacture of of fault to the “innocent” consequences analogous negligence se. in a manner per defective products Litigation,” 74 Mich.L.Rev. Damages in Products Liability “Punitive [Owen, /).] omitted) (hereinafter Owen (1976) (footnotes found liable under held that a defendant previously We have for considered at fault liability theory will be products strict Law, Tortfeasors Contribution purposes applying the Joint 162-63; Suter, see supra, N.J. 2A:53A-1 to -5. N.J.S.A. Jersey, N.J. Corp. v. Fireco New Capital also Cartel (total of two defend- 566-67, (1980) fault was that relevant of a defective ants, and distribution production one liable servicing product negligent for its product, one liable distribution). in the chain of its role liability cases is on emphasis products in strict Although the on the manufacturer’s product rather than safety of the (1984), Labs., 97 conduct, Lederle N.J. e.g., Feldman v. failure to here, product consists of a when, in the the defect plaintiff to warn James failure (specifically, defendant’s warn working ore and dangers with the asbestos Fischer of employer), “rea- supplied to Fischer’s that Johns-Manville fiber in determin- conduct is a factor the defendant’s sonableness appraisal of that reasonable- But the ing liability.” Id. at 451. *10 made, case, in ness is a failure-to-warn on the of basis a element, hypothetical explains, assumed As an fact. Feldman design-defect warning in strict cases is [t]he question liability whether, assuming that the knew the in the he acted product, defect manufacturer marketing providing in a manner in the or in the reasonably prudent product knowledge warnings given. the once is Thus, defendant’s defect negligence strict becomes almost identical to imputed, liability analysis analysis N.J. at 450 in on its focus the reasonableness of the defendant’s conduct. [97 added).] (emphasis quoted passage both The demonstrates limited extent to negligence failure-to-warn, analysis creeps which into our strict law, products liability contrasting ap illuminates the proaches of strict and negligence trench theories. As Inc., antly Properties, observed Freund v. 87 N.J. Cellofilm (1981), in the exegesis course Justice Handler’s on the approaches, difference between the two liability, “under strict knowledge the seller’s product’s propensity injure to [of * * presumed cases, is *. In negligence knowledge such did] proved; must be the standard is what the manufacturer ‘knew ” or should have (quoting Phillips known.’ Id. at 239 v. Kim Co., (1974)). wood Mach. 2d 1033 269 Or. 525 P. See also Corp., 169, 181-84 O’Brien v. Muskin (1983)-(risk-utility N.J. analysis to product’s safety evaluate is phrased sometimes to manufacturer, inquire whether fully reasonable aware dan gers posed product, would have manufactured and marketed did). it as he
As is from foregoing, although obvious juries are asked in cases failure-to-warn to assess the reasonableness a conduct, prove defendant’s a prima of strict case facie products liability plaintiff a need not introduce relat evidence ing conduct, or except manufacturer’s distributor’s offending establish that the defendant did in put fact article into stream of commerce. This quality is contrast to the required proofs punitive damages, to establish a claim for great which a deal must shown about defendant’s conduct. or exemplary damages “Punitive apart are sums awarded from compensatory damages and wrongdoer’s are when assessed Leimgruber Claridge v. especially egregious.” As conduct Ltd., (1977); Nappe socs., see v. Ansche 73 N.J. also (1984) Bonello, (quoting lewitz, Barr, 97 N.J. Ansell & (Sec Assocs., supra); Restatement Leimgruber Claridge 908(1) (1979) ond) (punitive awarded Torts § conduct). outrageous award of type of conduct that will warrant an ways. in various The conduct has been described “wantonly or There must be an reckless malicious. must be wrongdoing in the sense of an ‘evil-mindedact’ an intentional *11 rights disregard of the accompanied by a and willful act wanton (citаtions omitted). Nappe, at 49 supra, of another.” 97 N.J. upon showing that there requirement may be satisfied a “[T]he high knowledge a a or omission with of deliberate act has been reckless indifference to probability of of harm and degree Motors, supra, Berg 37 N.J. consequences.” v. Reaction puni- justify will one the conduct that 414. However describes key right “The to damages, thing is the one clear: tive wrongfulness of the intentional act.” punitive damages is the supra, 49. Nappe, 97 N.J. at a apparent, proofs needed establish should now be the
As failure-to-warn, products liability of strict prima case facie support will an award of markedly proofs from differ the going to the their punitive damages. Despite differences—one bearing form and extent of liability, on the theory of the other incompatible. mutually even they not exclusive nor are relief— agree litigated together. they no cannot be We There is reason liability proofs cen- premises: products strict with defendant’s punitive damages proofs center on a defend- product; ter on the conclusion wholly unwarranted the reject conduct. We ant’s punitive dam- preclude these differences draws—that defendant failure-to-warn, product liability cases. strict ages claims in on our decision Beshada places special reliance Defendant (1982). In Corp., 90 N.J. Prods. v. Johns-Manville failure-to-warn, case, this held asbestos Court strict-liability, that the was “state-of-the-art” defense unavailable to the de- permit fendants. That defense would a defendant to demon- given scientific, technological, strate that the and other infor- distribution, mation available at the time of manufacture it or dangers not the of product. could have known of Feldman Labs., supra, v. Lederle at 452. N.J. Thus the effect of permit' “state-of-the-art” defense is to defendant rebut the presumption knowledge product’s its harmful propensi- ties, by showing merely not knowledge its own lack of but by impossibility proving knowledge, rather even experts in the field. Ibid. holding
Under the precluded Beshada defendant is relieved, plaintiff asbestos, and a on aspect of an strict-liability, case, introducing failure-to-warn from evidence relating to a knowledge defendant’s actual or state knowledge in the asbestos field at time distribution. principle, however, That does not render the evidence inadmissi purposes. strict-liability, ble all Hence we hold that in a involving exposure failure-to-warn case to asbestos or asbestos products, plaintiffs precluded introducing are not from evidence relating knowledge to defendants’ as may conduct case, aspects relevant to other including dam *12 ages. differences, to addition those evidential products strict and purpose are different in and policies promote. each to “All seeks are civil doctrines shaped setting with a enforcing view toward and rules * * * ‘reparative’ [providing
behavior. law has both [C]ivil money for ‘admonitory’ [discouraging substitutes and losses] repetition wrongful warning conduct and others who are engage inclined to in similar functions.” Mallor and conduct] Roberts, Damages: “Punitive a Principled Approach,” Toward 645, 639, Hastings (1980)(hereinafter 31 L.J. 647 & n. 56 Mallor Roberts). and
657 protect overriding products liability is to goal strict Manufacturers, by product safety. promote and consumers marketing products, responsible made to the are act of their by products “reparative” those public injuries caused —the Corp., supra, 94 at 180. v. Muskin N.J. function. See O’Brien legal theory. Manufacturers are policies Economic underlie cost-avoiders,” Angelo v. San usually “cheapest Suter 173-74, Co., supra, at and have the Foundry 81 N.J. & Mach. dangerous prod- ability the cost of losses caused spread policies plaintiffs’ It is in furtherance of these ucts. relieved, are in strict reduced. Plaintiffs burdens have been cases, establishing defend- products liability of the burden knowledge dangers. negligence awareness ants’ hand, express damages, on the other serve Punitive outrageous conduct—the “admon- community’s disapproval determined “from the itory” Punitive are function. plaintiff.” than of the defendant rather perspective of the Inc., 523, Indus., N.J.Super. 192 Cappiello Ragen v. Precision Regency v. Boardwalk (App.Div.1984) (quoting Bartolo 532 (1982)). (Law Div. Inc., N.J.Super. Casino Hotel between a hybrid “a They sort have been described imposition of a criminal indignation and the of ethical display (App.Div. Thatcher, N.J.Super. fine.” Cabakov v. Schultz, (Sup.Ct. 1955) v. 50 N.J.L. (quoting Haines wrongdoer, punish the and to 1888)). They are awarded from similar conduct wrongdoer and others deter both the 48-49; Leimgruber Nappe, supra, N.J. E.g., future. “The doctrine of Assocs., supra, at 454. 73 N.J. Claridge to serve the it continues punitive damages survives because intol- disapproval of expressing society’s purposes of useful no other deterring conduct where such conduct and erable Roberts, supra, 31 Has- remedy suffice.” Mallor would at 641. tings L.J. liability and proofs required for strict differing with the
As them, although differing policies damages, the behind disagree with anоther, incompatible. not We one are from *13 Justice O’Hern’s assertion strong “that there is a doctrinal inconsistency permitting in punitive a damages claim in an action based on products strict liability. fact, Post at 677. In products in liability punitive cases we damages believe can complement liability. strict One court has punitive defined damages aas “sword” to be used with the “shield” compen- provided sation by liability. Thiry strict Armstrong v. World Indus., (Okla.1983). 661 P.2d some cases provide the will necessary encourage incentive plaintiffs pursue engages manufacturer who in a “deliber- ate act or omission knowledge high degree with of a proba- bility of harm and consequences,” reckless indifference to Berg, supra, 37 N.J. at compensatory when the award for those consequences harmful outweighed by would prohibitive litigation. costs of Keeton, See also W. Prosser and W. Law of Torts, supra, (punitive damages 2 at 12 remedy can § denial compensation expenses for litigation actual and serve as an incentive to seek long array redress for “a petty cases outrage oppression”). support allowing punitive
Additional damages in strict liability products may actions be found in availability liability products alternative theories of in cases. Plaintiffs may products pursue only claims not principles under of strict liability but also negligence under theories of or intentional tort. argue No one would that in either of the latter instances plaintiff seeking punitive would be barred from damages. products Hence to allow cases on based these theories but disallow them under strict would unnecessary create an anomaly and unwelcome our law. The right sensibly, recover day cannot this age, pleading be made to turn on the form of truism —a by recognized judicial our colleagues learned on the federal Jersey, by trial bench in New albeit later some than others. Compare Corp., Gold Johns-Manville F.Supp. Sales (D.N.J.1982)(punitive damages products not allowed in a liabili- ty resting failure-to-warn, action on products liability, strict but
659 case), negligence in allowed on counts same and Wolf Wolf (D.N.J.1982) (puni- Co., F.Supp. 555 613 v. Proctor & Gamble damages only negligence on and intentional mis- tive allowed claims), representation Gogol with v. Johns-Manville Sales (New (D.N.J.1984) Jersey does not Corp., F.Supp. law 595 971 seeking in plaintiffs failure-to- preclude from warn, cases), liability products strict and Cinnaminson Town- (D.N.J. 855 ship Gypsum, F.Supp. Educ. 552 Bd. v. U.S. 1982) punitive (New Jersey clearly recovery of law allows cases). products we liability in strict Nor will dictate plaintiff in plaintiffs’ for the bar. A who succeeds trial tactics willful, egregious support that will proving the conduct surely proved negligent, or is one who could have intentional, rely only A to on tortious decision strict conduct. liability liability of defendant is a matter of to establish a counsel. strategy within the discretion of well of a mis- argues allowing proofs defendant’s Defendant that confusing liability in a strict case invites risk conduct Presumably jurors is unable in juries. the fear will be disregard to whatev- liability their of the strict claim evaluation misconduct, and hence may er there of defendant’s evidence a fair verdict. fear is unfounded. will be return unable argument system greater jury Our faith in the than alternative suggests. Juries are often called on consider given stages, as when theories and conduct deliberations 4:39-2, interrоgatories special verdict sheet. See Rule charge, clearly We are confident that careful Rule 4:39-1. finding, each can assist explaining necessary elements and, liability phase reaching on juries in fair verdicts both damages in a question, punitive reach failure- they should to-warn, products liability strict case. today’s puts Jersey in line note decision New
Finally, we many jurisdictions that have considered the other with damages: they “incompatibility” strict sup- finding compatible. them We virtually are unanimous by Judge impressive list of authorities marshalled plement the 660 N.J.Super. following:
Pressler
with
Jack
at 122-23
Corp.,
son v. Johns-Manville Sales
(5th Cir.),
cert.
Ill Having determined that theory no forecloses law failure-to-warn, award in a products strict liability action, we turn to policy concerns that defendant poses as obstacles our to decision. applies Our discussion to asbestos litigation, mass-tort inasmuch as it is in that context present defendant to chooses the issue. litigation
One characteristic of this kind of is that it occurs years exposure asbestos, after to long and hence after the underlying tortious liability. conduct that creates Asbestos-re- generally long lated diseases latency periods. have For exam- ple, forty asbestosis manifests itself ten years expo- after sure, pulmonary bronchogenic and and cancer) (lung carcinoma typically thirty-five years occurs fifteen to exposure.2 after progressive scarring 2Asbestosis is a and incurable disease in which process initiated lung inhalation of asbestos fibers sacs air destroys healthy arguments spawns conduct of the tortious remoteness punitive damages in impose inequitable it would place years the offend- litigation that does not take until after changing argument posits that social ing event. One such have punishable that would never been conduct values render time occurred. Professor David Owen cau- punished at the prevailing against overlooking the moral and business tions Owen, Assessing the time involved. “Problems standards of Damages of Defective Prod- Against Manufacturers Punitive 1,13-14 (1982)(Owen II). In an ucts,” earlier 49 U.Chi.L.Rev. grouped “manufacturer misconduct” Professor Owen article (1) categories: fraudulent-type, affirmative conduct into five (2) knowing safety designed public, violations to mislead the standards, (3) testing inadequate quality-control, manufac- and (5) (4) dangers, turing procedures, of known failure warn I, dangers. post-marketing remedy failures to known Owen supra, L. at 1329-61. 74 Mich. Rev. any “changing values” are perceive that social
We do not
case,
falling
within Profes-
implicated in this
which we view
categories
Punitive
were
sor Owen’s
one
four.
*16
exposed to
Fischer was
available in this state well before James
(Sup.Ct.1833).
See, e.g.,
662 disregard of his safety well-being.” less and N.J.Super. at 131. appalling is It indeed us that Johns-Manville had so much on information hazards to asbestos workers as as the mid-1930’s that it not early and only egregiously, failed to use that information to these workers protect more but, it that also to withhold this information from the is attempted It also public. though that clear even Johns-Manville have taken some remedial may steps ago nothing decades its own it protect did to warn employees, apparently those like who, were Johns
protect
plaintiff,
employed
Manville customers
by
engaged in the manufacture
and fabrication of asbestos products.
[Ibid.]
Another concern
gap
exposure
created
the time
between
litigation
corporate personnel
is that the
who made the
exposure
decisions at the time of the
longer
are no
with the
company, possibly
longer
defendant
no
alive. From
fact
this
argued
punitive damages
is
that
inappropriate
they
are
because
punish
wrongdoers.
will not
the true
But as many cоurts have
observed,
ignores
this contention
corporation
the nature of a
separate
See,
legal entity.
e.g.,
Corp.
Johns-Manville Sales
Janssens,
252;
supra,
v.
Gogol
So.2d at
v. Johns-Manville
Corp., supra,
Sales
F.Supp.
Although
respon
971.
management
sible
personnel may escape punishment,
corpo
ration itself will
agency
not. “It is
at the time of the tortious
act, not
litigation,
time
the corpora
determines
liability.”
tion’s
Corp.,
Moran v. Johns-Manville Sales
691 F.
811,
(6th Cir.1982).
2d
We
primary
are reminded
goal
punitive damages
general
is,
deterrence —that
engaging
deterrence
others from
in similar conduct. See
Roberts, supra,
Mallor and
A
similarly ignores
related
which
legal
nature
corporations,
is that
unfairly punish inno
argument
cent shareholders. This
rejected
has been
repeated
ly. E.g.,
Co.,
Wangen
Ford Motor
97 Wis.2d
(1980);
N.
W.2d
Corp.,
Martin v.
Sales
Johns-Manville
*17
348, 365-69,
322 Pa.Super.
(1983),
469 .2dA
664-65
rev’d
grounds,
on other
(1985).
508 Pa.
Another characteristic of asbestos litigation startling reflect the massive amount numbers that Although exposure we are mindful generated by to asbestos. worker, involves one whose fact that case before us compensable injury to him exposure legally caused to asbestos action, his is class not “mass” case—never- and wife—it not a society-wide ignore were to theless we would remiss we Recognizing the problem. mass-tort nature of asbestos that that litigation, nature we address concerns of asbestos to litigation brings to decision allow characteristic of the damages. million and thirteen million show eleven Studies between Special Project, “An exposed have been asbestos. workers Social, Analysis Political Issues Raised Legal, of the (1983). Litigation,” More Asbestos 36 Vand.L.Rev. already 30,000 have been filed than lawsuits surely province Although expectation not the 3The is not unrealistic. phenomenon, opinion express any we note the view on merits this companies doing invested funds from business wide-scale withdrawal of apartheid. expression public South Africa —an reaction *18 by exposure, caused that with no indication are that there no victims more who will seek Of redress. the multitude of lawsuits that are faced a group, asbestos defendants as 11,000 has Johns-Manville alone been named in more than stayed cases. New claims are because Johns-Manville is at- tempting reorganization under bankruptcy federal law. In re (Bankr.S.D.N.Y.1983). Corp., 26 Johns-Manville B.R. 420 argues Defendant of compensatory damages amount great assessed and to be is effectively assessed so that it will punitive damages is, serve functions of defendants —that sufficiently punished are more than and are deterred. We not satisfied, however, at all that compensatory damages effective- ly serve same functions damages, as even when they staggering amount to Compensatory damages sums. are amount, often foreseeable as to within certain limits difficult to a reduce formula but nonetheless familiar to the industry. Anticipation insurance these damages will allow potential defendants, dangers product, aware of of a to factor anticipated damages those analysis into a cost-benefit and to particular product. decide whether to a market risk damages can, will, amount such some cases be product, reflected the cost a product in which event the dangerous will be marketed in its condition.
Without a manufacturer who is aware of a dangerous product feature of its knowingly but nevertheless condition, chooses to market it in that willfully concealing from public regarding dangers information product, be far would better off than an innocent manufacturer who product markets dangerous this, later discovered be- — subjected cause both will be compensatory to the same dam- ages, manufacturer, but innocent unable to anticipate those damages, incorporated will not have the cost damages of those into product. the cost of the being All else equal, the law place should not the innocent рosition manufacturer in a worse knowing tend to wrongdoer. Punitive than this need.4 meet puni effect of argues further that the cumulative
Defendant catastroph “potentially is litigation in mass-tort tive proof of this bankruptcy offered The Johns-Manville *19 ic.” distinction, in of Johns-Man- the the case We fail to see effect. damages of ville, compensatory and that between the effect punitive The damages. amount punitive they insolvency that could be would cause determination that any speculative to are so foreclose avoided their absence judicial See Jackson v. Johns- basis for decision. also sound * * * (“defendants Manville, 403 n. 11 do supra, 781 F.2d at damage pay will why ability their to future awards not indicate damage by than by punitive awards more affected awards.”). damage multiplicity compensatory damage has setting for claims typical Heretofore the not, which, a two-party more often than lawsuit been showing supported by a of some damages award was by a wrongdoing, directed of malice or intentional element object actual specific plaintiff. Even if the to the defendant defendant, the conduct conduct was unknown the malicious single person very a limited nevertheless was directed at a potential plaintiffs. group of action, on other liability in a products
Punishable conduct hand, potential plaintiffs whose will often affect countless culpable time of the to defendant identities are unknown fact Illinois that mere agree We with the court conduct. * * * misconduct, defendant, outrageous “through a large seriously persons” number of managefs] injure a punitive damages. liability Froud not rеlieve it should 264, 261, 437 658, Corp., Ill.App.3d Celotex Ill.Dec. effected addition, much compen- 4In it is how punishment by questionable We generally covered insurance. alone, which are satory regard insur- to be valid restricted our observation despite consider increasing costs. market insurance ance (1982), grounds, on N.E.2d rev’d other 98 Ill.2d (1983). 629, N.E.2d 131 Ill.Dec. greater
Of possibility concern to us is the that asbestos may defendants’ assets depleted by early become so awards longer that the defendants nowill be in existence and able to pay compensatory damages to plaintiffs. Again, later it is impossible if difficult not to ascertain impact additional punitive damages as compared impact to the compensa- mass tory damages alone.
Many policy arguments against punitive damages in litigation mass tort cases can be traced to Roginsky v. Richard Inc., son-Merrell, (2d Cir.1967). 2d 378 A! 832 Roginsky punitive damages court denied plaintiff who suffered by MER/29, cataracts caused drug. an anti-cholesterol Al though the denial of rested on a determina tion that the evidence was insufficient to send the matter to the jury, expressed the court allowing puni several concerns over *20 damages injuries tive for to multiple plaintiffs. The fear that punitive damages would lead to “overkill” turned out to be unfounded in litigation. the MER/29 Approximately 1500 made, claims were only of which jury eleven were tried a verdict. damages Punitive were only awarded in three of those cases, one of appeal. which was reversed (Roginsky, supra, on 832.) I, 378 F.2d supra, Owen 74 at Mich.L.Rev. 1330 n. 339. do While we not entirely discount the possibility of punitive damage “overkill” in litigation, recog asbestos we do nize majority that the vast of cases settle without trial.
Accepting possibility punitive “overkill,” the of damage we turn to addressing means of problem. that prob- Because the nationwide, lem is possible steps several remedial can be effec- only tive on a basis, nationwide beyond and hence are our reach. One such solution is setting the of a cap on total punitive damages against each E.g., II, defendant. 49 Owen U. cap Chi.L.Rev. at 48-49 & n. 227. a Such would be ineffec- applied tive unless uniformly. adopt cap To such a in New
667 Jersey deprive our citizens of would be assuring availability the of the of without concomitant benefit plaintiffs. for later This we decline to compensatory do. problem the of
Perhaps
likely
most
solution to
cumulative
the
action for those
punitive damages lies in the use of
class
supra,
Ill.App.3d
107
damages.
Corp.,
v.
at
Froud
Celotex
at 913-14.
264-65,
N.E. 2d
Several
657-60, 63 Ill.Dec.
and
recognized the need to streamline
consolidate
courts have
up
litigation.
For
repeatedly
that
asbestos
issues
come
instance,
of
was
non-availability
the
the state-of-the-art defense
cases in
governing
case
all asbestos
decided in a consolidated
Jersey.
Litigation,
In re
district New
Asbestos
federal
(D.N.J.1986).
F.Supp.
Another federal district court
plaintiffs
personal injury
asbestos
a class of all
certified
Texas,
purposes
pending in the Eastern District
cases
defense
determining
availability
state-of-the-art
both
Indus.,
damages.
Raymark
Jenkins
and
(5th Cir.1986),
(E.D.Tex.1985), aff’d,
782 F.2d
F.R.D.
Cir.1986)
denied,
(5th
reh’g
there are
law or
questions
or defenses of
are
of the claims
defenses of the
parties
typical
representative
(4)
and
protect
will
parties
fairly
adequately
the class,
representative
class.
the interest
finding
include a
requirements
Additional
members of the class predominate
law or fact common to the
questions
affecting
and that a class action
individual members,
over
only
any questions
adjudication of
for the fair
efficient
to other available methods
superior
23(b)(3).]
controversy.
\Fed.R.Civ.P.
*21
if
mandatory
may
certified
A
class
against
(1)
of
individual members
the
actions
or
the
separate
prosecution
risk
create a
class would
adjudications
(A)
varying
individual members of
with
respect
inconsistent or
conduct for the
standards of
party
class which would establish incompatible
the
opposing
or
the class,
(B) adjudications with
to individual
members of
class which would
respect
as a
matter be
practical
dispositive
interests of
other members not
adjudications
or
their
parties
substantially
impair
impede
ability
23(b)(1).]
Civ.P.
their interest.
[Fed.R.
protect
recognized
Several courts have
the usefulness of
certifi
class
cation in mass tort
E.g.,
Raymark Indus.,
cases.
Jenkins v.
supra,
269;
109F.R.D.
In re “Agent Orange"Product Liabili
(E.D.N.Y.)
ty Litigation,
den.,
F.R.D.
certif.
100F.R.D.
(D.N.Y.1983)(class
for
certified
affirmative defenses and
issues, mandatory
causation
punitive damages).
certification on
Although
appellate
some
courts have decertified classes in
products
actions,
mass
those same courts have none
recognized
validity
theless
of the class action mechanism.
The federal district
for
Pennsylva
court
the Eastern District of
plaintiff
nia certified a nationwide class of
school authorities in
property damage
asbestos
cases.
re Asbestos School Liti
(1984),rev’d,
gation,
(3d
669 plaintiffs Defendants as well as can class certification. seek addition, Shield, supra, 2. In 693 A.2d 849 n. See Daikon begun industry itself free has to—devel- the asbestos is to—and supplements step op and to federal class action. A alternatives in this direction is the Asbestos establishment Claims Facility pursuant Agreement, organization the Wellington an expeditious is to uniform purpose whose establish and settle- ment, payment, or defense of asbestos-related claims.5 powerless implement
At the state court we are level problems by expo solutions to the nationwide created asbestos litigation arising That not exposure. sure and from that does mean, however, that we cannot institute some controls over damages. runaway punitive a manufacturer When defendant punitive engages warranting imposition dam in conduct plaintiffs. Each ages, may the harm caused run to countless fairly charge can the manufacturer’s plaintiff individual egregious as to him and that conduct was by the in his “Each tort committed should be assessed lawsuit. particular plaintiff peculiar individual to that defendant Mines, brought Carey suit.” 548 has Neal v. Canadian who (E.D.Pa.1982), F.Supp. aff’d sub nom. Van Buskirk (3d Cir.1985). Ltd., Mines, F.2d Carey Canadian on total Nonetheless, placed limits there should be some We culpable defendant. conclude punishment exacted from a permit a imposition those limits would reasonable damage introduce other defendant evidence it, paid by as well already against assessed awards a punitive effect status and the of its own financial evidence approach this approval that We note with award would have. trial courts. See by favor our looked on with already has been as to to, will be attended that the needs of future plaintiffs 5It is also possible in the federal Bankruptcy defendants in innovative procedures bankruptcy, as a claims condition Courts, such as reduced priority reorganization plan. Corp., N.J.Super. (Law Brotherton v. Celotex Div.1985). *23 realize may
We that defendants juries reluctant to alert the fact that other juries punitive courts or have assessed damages being for conduct similar to that by considered jury given in a Although case. may evidence a convince jury punished, that a defendant has been sufficiently the same nudge jury evidence could a closer to a determination that punishment jury is warranted. That is a risk trial. The willingness accept that risk is a strategy matter of for counsel, defendant and its no different from other strategy facing lawyers every day. choices trial punitive When evidence of introduced, other is awards trial juries courts should instruct to consider whether the defendant has sufficiently punished, been keeping punitive in mind that punish are meant to and deter defendants for the society, compensate plaintiffs. benefit not to individual protection A may further be afforded defendants judicious exercise of remittitur. Should a trial court determine “manifestly outrageous” that an is “grossly award or exces sive,” Thatcher, supra, Cabakov N.J.Super. may reduce that award order new trial on dam ages. In evaluating the challenged punitive excessiveness of awards, damage trial expressly courts are authorized to consid prior punitive er damage awards.
IV argues punitive damages Defendant that even if are allowed products liability, actions, in strict they mass tort should not against have been assessed Johns-Manville this action. We disagree.
We hold that are available failure- to-warn, products liability strict actions when a manufacturer (1) culpably aware of or unnecessary indifferent to an risk of danger steps to an (2) to take to reduce refuses injury, showing “a bymet This standard can be acceptable level. knowledge high degree of of a act or omission with deliberate consequences.” indifference to and reckless probability of harm Motors, Judge Brody’s supra, 37 at 414. N.J. Berg v. Reaction necessary to incorporated the elements charge at the trial level thе conduct The trial court described satisfy this standard. imposition necessary to warrant gross, inflicting acting in such a wanton “intentionally harm or disregard way, recklessly what way, such a terrible so * * language amply con- happen *.” This might to someone conduct, and, purposes of this requisite level of veyed the Berg case’s formula- case, may equivalent be deemed tion, adopted above. very outset of the
Judge Brody jury, alerted the at the *24 punitive damages “involve plaintiffs’ claims for charge, that from respects quite are different which some considerations damages.” This respect compensatory your concern with to throughout charge. the The approach careful was adhered purposes compensatory dam jury of the court informed the punitive damages to jurors not to use ages and admonished the jury the on more than compensate plaintiffs. It reminded the purposes conduct for defendant’s one occasion not to consider damages. charge The was more assessing compensatory of the defend protect legitimate interests sufficient to than ant. the evidence in considerable detail have set forth
We claim, damages punitive jury support of the presented to the exhibits, The voluminous answers to supra at 648-651. correspon admissions, interrogatories, answers to requests for justify Appel dence, depositions fully testimony on oral “proofs respecting Johns-Man- appraisal of the Division’s late overwhelming.” N.J.Super. at 117. as “indeed ville” [ ] reasonably have concluded jury could are satisfied that We acts or omissions “with guilty of deliberate that defendant was knowledge high of a degree of рrobability of harm and reckless consequences.” indifference to the Berg Motors, v. Reaction supra, particular, N.J. 414. supports the evidence finding that dangers Johns-Manville knew of the created its product. only Not did it fail to warn users of the serious health hazards exposure associated with asbestos, actually took steps affirmative to conceal this public. information from the fully These actions jury’s imposition warranted the punitive damages.
V though Even challenged defendant neither the trial court’s charge jury to the nor the amount of awarded case, in this we consider those issues of importance sufficient following warrant guide comments as a in future cases. product Because safety paramount is the products concern of law, liability it is disregard indifference to or dangers posed by product in its defective state that should be the key justifying factor in an award of damages in a failure-to-warn, products strict liability action. When sought are part claim, of a failure-to-warn court must especially be cautious in instructing jury regard- ing the elements that define each and the may evidence that of, support considered in hand, on the one products strict and, liability other, on the can support by way punishment of the defendant manufacturer or distributor of product. the defective jury must not be misled believing into that the distinct elements of either are a *25 requirement of necessarily or relevant to the other. purpose
The
and nature of
damages must be
carefully explained to the jury.
In determining whether a
defendant’s conduct
sufficiently
was
egregious
justify puni
damages,
tive
fact-finders should consider the seriousness of
the hazard
public;
to the
degree
the
of the defendant’s aware
ness of the hazard
excessiveness;
and of its
the cost of correct-
risk;
improper
both the
reducing
the duration of
ing or
marketing
cover-up;
its
the attitude and conduct
behavior and
misconduct;
upon discovery
enterprise
of the
I, supra, 74
failing
reasons for
to act. See Owen
defendant’s
at-;
at
Thiry Armstrong, supra,
v.
P.2d
Mich.L.Rev.
(Minn.),
519;
Gryc Dayton-Hudson,
N.W.2d
(1980).
denied,
101 S.Ct.
66 L.Ed.2d
cert.
449 U.S.
punitive damages,
If
decides to award
a fact-finder
ap
guide a determination of the
considerations can
additional
some reason
Punitive
should bear
propriate amount.
consistently
injury, but we have
relationship to actual
able
punitive and
require a set numerical ratio between
declined to
50;
damages. Nappe, supra, 97 N.J.
Leim
compensatory
The reasonableness
supra,
Finally, there looms dissenting damages award. Our required to sustain convincing” standard colleаgues urge adoption of a “clear the evi- “preponderance of replace Jersey’s traditional New persuasive argument makes a rule. The dissent dence” policy considerations that change and has cited support such a deserve careful consideration.
However, parties have not briefed that the the fact remains issue, addressed it. have the courts below argued nor *26 come, all, significant our only
So a shift in law should if at after fully litigated. it has been the Under circumstance we are day content leave for another the definitive resolution of so portentous question.
Judgment affirmed.
O’HERN, J., dissenting. jury But for its decision not to have the this case consider punitive damages the light principles sug- claims in gests today, I join opinion would of the Court. With the exception that I jury clearly believe that the should be con- proofs standard, vinced that up measure to the I find myself in basic emphasis accord with the Court’s on the need to juries purposes instruct on the of damages, the consid- of proportion award, eration in an the nature of conduct to be sanctioned, prior and the effect in their awards deliberations. agree I recognition also with the Court’s importance possible disposition. class I am also in accord with the Court’s view that the manufacturer’s here would conduct meet its test “of ‘utter and disregard safety reckless [the user’s] ” well-being,’ ante at 661 (quoting 193 N.J.Super. (App.Div.1984)), my involving or own view of test as “a outrageous conscious and indifference the risks market- manufacturing, producing product.” ing, its at 679. Infra I find in the conduct a conscious indifference to the worker’s well-being.
Still, may involved, whatever our views of conduct parties should have the issues resolved accordance with principles of application. broad I express Hence choose my disagreement modest with comprehensive and instructive guidance provided majority will, in the opinion, guidance which itself, do much to advance the future resolution these issues. I expressed my
On another occasion have views about the relationship to modern tort law. See *27 Bonello, Anschelewitz, Barr, 37, 97 Nappe v. Ansell & N.J. J., (1984) (O’Hern, concurring). I to am occasioned 54-64 repeat many of those concerns here. early premise punitive damages of was that “one
Since an
Note,
large
prevent dueling,”
purpose of
awards was to
Exem-
Torts,
517,
70
522
plary Damages in the Law
Harv.L.Rev.
(1957) (footnote omitted),
scrutiny.
this doctrine bears careful
products liability, I
In this context of
would root an award of
damages
remaining
purpose: respecting
in
punitive
its
valid
insuring
dignity
shape
Failure to
and
the individual.
disrepute
modern tort law has caused it to fall into
doctrine to
punitive damages, partic-
prompted the call for abolition of
and
I
ularly
products-liability
in the
context.1
continue to believe
correctly
punitive damages
doctrine of
can
that a
structured
society.
express
interests of
I
here the standards and
serve the
effectively
guidelines
necessary
that I believe
to deal
with
products-lia-
damages
mass-exposure,
in
punitive
the context of
purposes of
bility litigation. To do so I must first review the
liability.
products
its
to our doctrine of
the doctrine and
relation
to
damages are said to
assessed
addition
Punitive
damages
punish
for the commis-
compensatory
a defendant
2401,
Jersey Assembly
measures introduced
Bill No.
as well as other
1New
rule,
5, 1986,
May
changes
source
on
concerns
in the collateral
awards,
actions,
liability.
damages
product liability
joint
several
On
and
and
side,
1999,
by Providing
Regulate
Commerce
federal
S.
A Bill to
Interstate
Liability
Purposes,
the Senate
Product
Law and For Other
is in
for a Uniform
Commerce, Science,
Transportation. California’s voters
on
Committee
punitive-damages
against
adopted Proposition
munici
to curtail
claims
have
51
3, 1986,
1431,
(adopted
palities.
in June
§§
See Cal.Civ.Code
1431.1-1431.5
1125,
Court,
Cal.App.
Superior
1144
election) (cited
3d
primary
Brown v.
5,
768,
(1986)).
Rehnquist
Cal.Rptr.
"a
Justice
has noted that
n.
780 n. 5
significant
jurisdictions refuse to condone
dam
number of American
1625, 1642,
Wade,
30, 59,
ages
75 L.Ed.2d
Smith v.
461 U.S.
103 S.Ct.
awards.’’
J.,
632,
(1983)
Liability
(Rehnquist,
dissenting);
Product
Act:
see also
Hearing
Consumer
the Committee on
the Subcommittee on the
Before
(1985)
Science,
Commerce,
Cong.,
Transportation,
1st Sess. 27-29
99th
(increased
punitive damages);
(availability
As
the classic
claim arises from a
single
involving
parties, making
possible
incident
two
for a
single jury
appropriate punishment
to determine an
without
considering
possibility
of additional sanctions
other
Furthermore,
juries.
always
ap-
have
been
recognized
propriately
when
adequate recovery
there was no
Money,
Huckle v.
legal wrong.
(1763)
Eng.Rep.
for a
768
(exemplary damages
appropriate
King’s
where
constable
wrongfully
plaintiff).
detained
outrage
The “sense of
encompassed
injuries inflicting
insult”
in
emotional distress has
driving
one of the
in
development
been
forces
Symposium
History
Discussion—The
awards.
Damages,
Punitive
155,
(1982).
56 S.Cal.L.Rev.
Our law
may provide recompense
injury
for such
in the form of emotion-
nexus
suffering, provided that there is a sufficient
between
al
Jaffee, 84
injured
individual. Portee v.
N.J.
the actor and
(1980).
background,
approach
we
With this as
98-99
mass-exposure, products-liability case.
modem
IN OR-
DAMAGESARE INAPPROPRIATE
A. PUNITIVE
CASES
DINARY STRICT PRODUCTS-LIABILITY
that there is a
history
demonstrates
punitive-damages
inconsistency
permitting
strong doctrinal
products liability.
upon strict
See
claim in an action based
Liability, 39 Ins.
Tozer,
Damages and Products.
Punitive
cases,
(1972).
long
summarized
series
CounsJ.
(1983), this Court
Corp., 94
v. Muskin
N.J.
O’Brien
products-liability law.'
purposes
of the
of strict
outlined its view
concern about the
First,
underlying purpose is a shared
upon
parties in the
of loss
all
proрer allocation of the risk
second,
commerce,
181-84;
liability is
at
strict
id.
stream
overwhelming
plaintiffs sometimes
imposed
part
to relieve
179;
third,
analysis
central to our
proof,
at
burdens
id.
condition of
premise that it is the
liability
tort
is the
of strict
of the
liability, not the conduct
determines
product
Labora-
manufacturer,
180;
v. Lederle
see also Feldman
id.
(1984)(“[Ejmphasis of the strict
tories, 97
N.J.
than the
safety
product,
rather
upon
doctrine
product-
is a
conduct. It
of the manufacturer’s
reasonableness
In Freund v.
approach
responsibility”).
oriented
Cellofilm
*29
(1981),
emphasized that
Inc.,
the Court
Properties,
87 N.J.
cases,
liability is
manufacturer’s
the
in failure-to-warn
even
safety
the
conduct but on
the manufacturer’s
predicated not on
product:
the
being one whose
marketed —a safe product
should be
safe products
[O]nly
to the
outweighs
risk has been reduced
inherent
that
risk,
its
provided
utility
greatest
the
continued utility.
[M
consistent with
product’s
extent possible
238 n. 1.]
simplifica-
liability is the
of strict
judicial
benefits
One
See,
Beshada v.
litigation.
e.g.,
complex
tort
proof
tion of
(1982)
Corp.,
(“salutary
Prods.
90 N.J.
Johns-Manville
goals
[imposing
liability
increasing product
strict
include]
simplifying
trials”). Hence,
safety research and
tort
in the
goal
context a central
if
asbestos
Beshada is undermined not
entirely
lost
when each trial invites reexamination of what the
when,
industry
product
asbestos
knew about the
rather
Brodeur,
safety
product.
the
the
than
See
Annals
Law—of
Trial,
(June 10,
Industry
the Asbestos
on
The New Yorker
1, 1985).
noted,
1985-July
goals
adopting
As
one of
our
liability
changing
society
strict
was to meet the
needs of
and to
proof
plaintiff injured by
burden
for a
a defective
“eas[e]
product,
policy
by eliminating
require-
that is achieved
plaintiff prove
negligence.”
ment
that
the manufacturer’s
Keeton,
Corp., supra,
(citing
O’Brien v. Muskin
B. PUNITIVE DAMAGES ARE APPROPRIATE IN CER-
TAIN CASES INVOLVING MASS EXPOSURE TO MATERI- HIGHLY DANGEROUS SUBSTANCES OR ALS
Notwithstanding inappropriate are cases, products-liability may involving strict there be cases exposure products incidents of mass to unsafe that are so outrageous they imposition call for a societal of sanctions just I that do more than make the victims whole. would *30 circumstances, such as damages in certain recognize punitive cases, where the conduct mass-exposure, hazardous-substance outrageous an affront constitutes such of the manufacturer so, doing necessary. punishment is the individual to its damages be conformed punitive use of would modern relationship dignatory torts. ancient develop analytical framework to ruling, a court must an In so punitive dam- cases in which the assessment identify those and provide guidance for trial appropriate and to ages is (1) damages punitive that: I would hold appellate courts. manufac- finding that the actions of a upon a should be based outrageous indifference to a conscious and turer exhibit excessively dangerous to consum- may be product that its risk clear on ers; (2) must base this determination the factfinder indifference; (3)juries must be convincing of such evidence specific with carefully of the measure instructed profit real- the unconscionable that should relate to standards (4) manufacturers; and outrageous acts of the ized question common should, possible, whenever resolve courts stage early punitive damages at an liability for litigation as a class action. Damages Punitive
(1) Imposition The Standard for individ a rule embodies concept of “The conduct toward wrongdoer whose punishment of a ualized Co., Lilly outrageous.” v. Eli Collins plaintiff particularly 37, 54, nom. 166, 202, denied sub cert. 342 N.W.2d 116 Wis.2d — U.S.-, Collins, 105 S.Ct. Sons, Squibb & Inc. E.R. displays such (1984). If manufacturer 83 L.Ed. 2d market the risks of indifference to outrageous conscious then product, its manufacturing, producing ing, equate should This indifference damages should be awarded. and wanton” than “willful something significant more with sharply defined. See not conduct, concept our law has *31 Geller, 270, (1960).2 recognize Krauth v. Israel 31 277 I N.J. any the use of convey verbal formula does not with unerring accuracy concept impart. the that we wish to To this extent, trapped language are we the of the law. Commenta pessimistically tors have characterized such verbal variations as ” “negligence Ellis, the vituperative epithet,’ ‘with addition of a Efficiency Fairness and in the Law Punitive Damages, 56 1, (1982) (quoting Brett, 36 S.Cal.L.Rev. v. 152 Eng. Wilson 737, (Ex.Ch.1842)). Rep. try give phrase
Still we must content to the that we choose impart degree the of failure of conduct that will warrant imposition punitive of the sanction of damages. phrase
I that the believe conscious indifference to the risks of marketing product convey requirement the will the that the manufacturer aware of product was the risk at the time the concept conveys was marketed. This an indifference to human regard imposition values that I as essential to the damages. thing outrages juries the in those cases “[T]he precisely is the notion of suppos- the defendant manufacturer edly using consumers in the instrumentalist fashion for dol- Discussion, Symposium lars.” supra, 56 at 158. S.Cal.L.Rev. personal well-being Such conduct is an insult to the of the equivalent prompted early development victim to that which Punitive-damages of the doctrine. acceptable awards are when disregard manufacturer, indifference and exhibited sees the laboratory, who consumer as a human test constitute dignity See, an affront to the of the individual. e.g., Grimshaw Co., Cal.App.3d v. Ford Motor Cal.Rptr. (1981) ($3,500,000 award, punitive-damages which had been million, upheld reduced from marketing Ford $125 Pinto contexts, 2In some we have this but have limited it employed concept sharply jury dealing average to situations in which a with human behavior and canvassing conduct that is well within the norm of ordinary everyday experi (1986) (firemen’s rule); ence. v. Carus Chem. Co., N.J. 564 see Mahoney (1983) (parental immunity). also Foldi 93 N.J. 549-50 Jeffries, dangerous gas would have inherently tank when avoidance with costs). minimal involved agree majority products-liability that in a action
I with preclude does not concept of election remedies action, damages. plaintiff imposition such an danger- proving knowledge of the is relieved of the burden propensity product, Properties, Freund ous v. Cellofilm Inc., precluded frоm demon- supra, 87 N.J. at but is not made strating risk-utility analysis in the that the manufacturer expose to an unreasonable risk of a conscious choice to users slight minimized harm that could have been avoided or with *32 utility product. of the to the burden jury a presenting differing standards of conduct to a In difficulties, such difficulties will court will confront some but insurmountable. not be
(2) Required Quality The Proof case awarding punitive damages products-liability in a Since must re consequences, proof has such serious burden proof are gravity decision. Standards of flect the public have guarantee that the will devices of the law that integrity Santosky the decision. v. Kram confidence in the 599, 1388, 1396, er, 745, 757, 609 102 71 L.Ed.2d 455 US. S.Ct. damages, juries common-law (1982). assessing exemplary society, that fulfill one of the most solemn roles of are asked to scrutiny” “[Pjarticularly careful is punishing its members. Roginsky are punitive allowed. warranted when Cir.1967). 832, (2d Richardson-Merrell, Inc., 378 F. 2d 852 punitive dam recently modified their jurisdictions have “Three damages may awarded punitive ages provide laws to convincing evi proved by ‘clear and plaintiff if has only culpability. requisite defendant acted with dence’ that the * * * prove puni requires plaintiffs their state] [Another Wheeler, doubt.” beyond claims a reasonable tive Damages Reforming Punitive Case The Constitutional for Procedures, (1983) (footnotes Va.L.Rev. 296-97 omit ted). I believe party seeking punitive that a damages in this “ prove context should requisite ‘outrageous’ conduct convincing proof.” clear and Co., Acosta v. Honda Motor (3d Cir.1983) 2d (interpreting F. Virgin Islands law any existing absence of precedent); Wangen accord v. Ford Co., 260, 297, Motor (1980); Wis.2d 294 N.W.2d Model 120(A), Prod. Liab. Act discussed in 44 § Uniform 62,748 (1979). Fed.Reg. society If is to have confidence that under the warranted, circumstances the sanction is this stan proof dard of necessary in awarding punitive damages. (3) Standards and Measures the Award Punitive Damages Historically, courts have inquire been loath to into the jury amount of verdicts for damages. inability unwillingness of courts to deal with standards for damages is a early history residue of the of common law. It was “at comparatively period a recent jury that the has relin- quished its contract, control over actions even of any and that approach has been made to a fixed legal measure of damages.” Sedgwick, T. A Treatise on the Measure Dam- (1847), ages 214 quoted Horwitz, in M. The Transformation of Law, 1780-1860, (1977). American Only at 83 by degrees was “ principle recognized ‘that compensation the amount of *33 regulated to court, be the direction of the and that [was] the jury vague cannot substitute their arbitrary and discretion for ” the rules lays Horwitz, which the law down.’ supra, at 83 (quoting Sedgwick, supra, 214). at “The doctrine of exemplary damages is thus seen originated to have in a survival in this limited class of cases of arbitrary power the old jury.” of the 1 Sedgwick, T. A Treatise on the Damages Measure § of (9th 1912). Appellate ed. replete records are with evidence judges that desperately guidance seek on this issue in instruct- Note, ing juries. Exemplary Damages Torts, in The Law of supra, 529-30; Note, Harv.L.Rev. at see also Expand- The Actions, Damages Availability Punitive in Contract ing of (1975) (lack of standards ascertainable Ind.L.Rev. punitive to responsible for reluctance of courts interfere with awards). guidance given can to damages I believe that be identifica in their Instructions can include juries instructiоns. marketing of recurring forms tion and examination pun deserving of been considered most misbehavior have misconduct, knowing of ishment, violations such fraudulent standards, manufacturing proce safety inadequate testing and dures, dangers marketing of before failure to warn known dangers. remedy post-marketing failure known as well as Owen, Liability Litiga Damages In See Punitive Products tion, 1329-52, 1369-70. supra, Mich.L.Rev. at marketing misbehavior, juries balance should addition society’s against the defendant’s interests. Factors to interests harm, severity degree of threatened the consider include the of conduct, of profitability the the reprehensibility of defendant’s conduct, enterprise, the the amount the financial condition of assessed, damages litigation, the compensatory cost sanctions, against actions potential criminal and other civil based on the same conduct. defendant way, give greater content In this trial courts could damages. jury should within which assess framework purposes the doc- jury instructed about the should be windfall; trine, plaintiffs a that in giving do include which not recovery should be products-liability cases marketing to which the manufacturer’s upon extent based the risk reckless indifference to conduct exhibits a conscious or consumers; may excessively dangerous to product its shape the imposition of sanctions should serve to jury’s that the values to reflect its concern human manufacturer’s conduct mass-produced merchan- diminishing utility without Furthermore, premises underlying, unwritten dise. one plaintiffs are under- awarding punitive is that often litiga- damages. Expenses of compensated by compensatory tion, fees, extremely high and expert fees are counsel *34 plaintiffs. recognition
burden
A candid
of this issue would be
reality. Finally,
consistent with
some consideration of the
relationship
of an award of
an
award
compensatory damages
appropriate
brought
be
should
jury’s
Nappe, supra,
(O’Hern,
attention.
(4) Management Punitive Damages in Multi-Party Liti-
gation issue, remaining although below, not raised concerns problem how to resolve the multiple-law- suit, multi-party litigation. principles justice The basic —that fairly, litigation end, claimants treated be must come to an party and that a repeatedly cannot be sued on the same cause of action—are by punishments. violated multiple excessive damages may
Punitive inappropriate be in situations where plaintiffs against numerous file suit the same defendant for damages arising single out Long, “mass disaster.” Puni- Doctrine, Damages: tive An Unsettled 25 Drake L.Rev. (1976). First, plaintiff award, one can collect a substantial thereby affecting may equally another who deserving Second, punitive damages such an award. are to “reflect penalty imposed punish total which must be and deter the Casino, defendant.” Regency Bartolo Boardwalk Hotel Inc., (Law N.J.Super. Div.1982)(citing Leimgru- Assocs., Claridge ber v. supra, 454). Third, N.J. courts relitigate should not repeated identical issues or inflict punish- ment for the same Finally, determining offense. basis, case-by-case on a consuming courts are their judicial resources.
In order to problems, avoid such possible, whenever puni- all tive-damages pursued together claims should be in one class Astiz, action. See Putz Damage & Punitive Claims Class Opt Members Survive?, Who Out: Should They 16 U.S.F.L. (1981); Rev. Morris, 29-31 see also Damages Punitive
685 Cases, 1173, (1931) (“When a defend- 44 Harv.L.Rev. 1194 Tort plaintiff in more one there results harm to than ant’s cоnduct suit”); Roginsky v. if there is one no difficulties but are Inc., Richardson-Merrell, supra, 378 F.2d 839-40 n. 11. way in all be assembled (“If any were which cases could there * * * a single might possible jury for to court it before among appropriate held distribution one award to be for make plaintiffs”).3 successful all play a court a more active a resolution would call for to
Such
litigation
complex multi-party
of
of this
management
in the
role
legal
impossible
system
approach
for a
type.
simply
It is
way
previously
in
considered
problems in the
which
these
See,
Rosenberg, The
e.g.,
Causal
between individuals.
lawsuits
A
Law”
Exposure
“Public
Vision
in Mass
Cases:
Connection
(if
849,
(1984)
“complex
Tort
97 Harv.L.Rev.
System,
852
of
agents
are tried
damage
against
actions
manufacturers
toxic
case-by-ease adjudication, they will
methods of
under traditional
public
of millions of dollars’ worth
likely consume hundreds
Alternatives
resources”);
Joinder
Trangsrud,
private
and
779,
(1985)
Litigation,
L.Rev.
70
781-82
Mass Tort
Cornell
inefficiencies, costs,
(“The
delays
associated with
perceived
* *
*
”).
provoked
for reform
litigation
tort
have
calls
mass
many
rights
parties
Traditionally,
adjudicate
courts
basically
have
been
class-action remedies
3Those courts that have resisted
present problems
not
of different laws
resolvable
with cases that
involved
may
rights
differ
victim in California
The
of Dalkon-Shield-IUD
one forum.
Calif.,
rights
Daikon Shield
in Iowa.
re Northern Dist.
of one
from
Cir.1982),
847,
(9th
Litig.
sub
F.2d
cert. denied
693
852-54
IUD Prods. Liab.
817,
Abed,
1171,
Unlimited for a act “determined in a succession of individual bearing lawsuits and no relation to culpability the defendants’ injuries or the actual suffered ** * victims would violate sense of ‘fundamental fairness’ that is process.” essential to constitutional due Re In Federal Skywalk Cases, 1175, (8th 680 Cir.1982) F. 2d 1188 (citing Ro ginsky Richardson-Merrell, Inc., supra, 838-41, 378 F.2d at Astiz, supra, Putz & 29-31). By U.S.F.L.Rev. at settling the punitive-damages proceeding, issue in one de determined, fendant’s entire would be individual class claimants sanction, would receive a fair share of the and no litigation further of the issue would be needed. promote
Class actions legal would system’s productivity dealing in mass-exposure with litigation. The purpose of class treatment of mass-exposure viable claims would not be to resources, reallocate but rather to conserve them for more productive reducing use by litigation costs, and administration thus awarding more benefits Rosenberg, victim. See supra, 97 Harv.L.Rev. at 910. majority cites studies that “show that between eleven
million and thirteen exposed million workers have been asbestos.” that in the Ante 663. Other studies indicate years, forty last over 21 million signifi- Americans have been cantly exposed to asbestos. See Jackson v. Johns-Manville (5th Cir.1985). unex Corp., F. Not 2d Sales litigation money expenses pectedly, more is channelled to recovery. expenses the victims for Costs than to every provid litigation adjudication $1.59 in asbestos total $1 Newman, Perspectives Rethinking Fairness: ed to a victim. (1984) N. (Thirty-ninth Benjamin 7-8 Litigation Process on the Kakalik, Ebener, Felstiner, Lecture) Haggstrom (citing Cardozo Compensation Litigation, Shanley, in Asbestos & Variation (Institute Justice, Rand Expenses Table 9.3 Civil 1984)). Corp. approximately pending January there were
As of in the States District mass-exposure-asbestos claims United Superior Jersey. New Court for the District of Court 1,316 approximately personal-injury Jersey there were New represented in docketed asbestos cases venued claims Obviously, of these docketed County alone. some Middlesex would others. The class action adjudicated will be before cases awarded to all victims. Since be fairer determining the prior to be considered suits are factor damages, Regency Hotel v. Boardwalk amount of such Bartolo *37 (citing Casino, Inc., at 545 4 Restate supra, N.J.Super. (e) (1979)),early litiga (Second) 908 comment Torts ment § the fixing money awards at setting be the trend tors will allowing class By recover less later.4 risk of victims who promoting judicial Jersey, Court would be in this action New in court that will by centralizing litigation the the economy Re case. In primary issues related to the adjudicate those I not Cases, 1186. would supra, 680 F.2d at Skywalk Federal prob national can to resolve the that we undertake represent Litig., litigation. re Asbestos See In School lems of asbestos to introduce evidence would want is naive to assume that manufacturers 4It can be considered trial. the issue Perhaps of this nature in judicial evaluation of the award. in separately Cir.1986) (certification (3d 2d F. of nationwide punitive-damages class of claims property related to losses overruled). I recognize also that individual claimants an have important separate personal interest trial of claims.
Still, recognized this duty Court has mass-expo- to deal with litigation. sure Beshada v. Corp., Johns-Manville Prods. su- 191; pra, 90 N.J. Corp., Gold Johns-Manville Sales (D.N.J.1982). F.Supp. 482 mass-exposure litiga- Resolution of tion by narrowing can best be achieved issues must be litigated. justifications imposing for de- include
terring outrageous future, punishing conduct in the con- such duct, expressing society’s disapproval outrageous of such con- duct, providing private and incentives for civil enforcement. Roberts, Mallor & Damages: Punitive Principled Toward a Approach, (1980). 31 Hastings L.J. 647-50 Class certifica- addition, tion goals. will achieve these class-action certifica- tion time money parties will save public for and for the help multiple will courts to manage resolve lawsuits and to multi-party litigation punitive-damages setting. case,
In this charge jury because trial court’s to the was preponderance proof terms a mere that the conduct of test, met Johns-Manville its and did not contain Iwhat believe necessary be the appropriate further definition of the stan- imposition for damages, dards judgment for should reversed and remanded for further proceedings. I would invite certifying consideration of punitive-damages disposition. claims class CLIFFORD,
For HANDLER and POL- affirmance —Justices LOCK—3.
For reversal—Justices O’HERN GARIBALDI—2.