AND UNION CARBIDE CORPORATION, MAY WE PLEASE HAVE APPEARANCES OF COUNSEL.
MS. LONG: GOOD AFTERNOON, YOUR HONOR, ANDREW LONG FROM LEVY
KONIGSBERG. MR. PLACITELLA: I APOLOGIZE, YOUR HONORS, GOOD
AFTERNOON, YOUR HONORS, JARED PLACITELLA FROM COHEN PLACITELLA AND ROTH TODAY ON
BEHALF OF AMICUS CURE YA, NEW JERSEY ASSOCIATION FOR JUSTICE.
MR. SCODRO: GOOD MORNING, YOUR HONORS, MIKE COMPANY SKOE DROE FROM MAYER BROWN
ON BEHALF OF THE RESPONDENT UNION CARBIDE. THE COURT: WELCOME.
MISS LONG, PLEASE GO AHEAD. MS. LONG: MAY I PLEASE RESERVE
TWO MINUTES AT THE END FOR REBUTTAL. CHIEF JUSTICE RABNER:
YES. MS. LONG: THANK YOU. MAY IT PLEASE THE COURT, THE HOLDING
OF THE APPELLATE DIVISION MUST BE REVERSED BECAUSE IT WRONGFULLY UP ENDED THE
LONGSTANDING, NONDELEGABLE DUTY OF THE MANUFACTURER TO PROVIDE AN ADEQUATE
WARNING OF THE HAZARDS OF ITS PRODUCT TO THE FORESEEABLE USERS OF THE PRODUCT.
THE PANEL DID THIS BY FINDING THAT THIS DUTY MAY NOW BE DISCHARGED BY RELYING
ON THIRD PARTIES TO RELAY WARNINGS. FUNDAMENTAL TO OUR STRICT
PRODUCTS LIABILITY JURISPRUDENCE ARE 3 LONGSTANDING RULES. ONE, THAT A
PRODUCT MAFR ERR HAS A DUTY TO THE REASONABLY FORESEEABLE USERS OF ITS PRODUCT.
2, THAT THE MANUFACTURER MAY NOT DELEGATE THIS DUTY. AND 3, THAT SPECIFICALLY
IN THE EMPLOYMENT CONTEXT, THE MANUFACTURER HAS THE DUTY NOT ONLY TO WARN THE USER
OF THE PRODUCT, BUT ALSO THEIR EMPLOYER. THAT A MANUFACTURER
HAS A DUTY TO WARN THE FORESEEABLE USERS OF ITS PRODUCT HAS BEEN THE RULE IN
THIS JURISDICTION FOR DECADES AND WAS RECENTLY REITERATED BY THIS COURT IN THE WAY
LEN MATTER IN 2020 WHEN THE COURT STATED THAT A MANUFACTURER'S DUTY TO A
FORESEEABLE USER OF ITS PRODUCT HAS LONG BEEN RECOGNIZED. JUSTICE
PATTERSON: MISS LONG, IF I CAN ASK YOU, THE APPELLATE DIVISION AGREES WITH YOU
THAT THE MANUFACTURER MAY NOT DELEGATE ITS DUTY TO WARN AND HAS A SEPARATE
CONCURRENT DUTY TO WARN BOTH THE EMPLOYEE AND EMPLOYER, AND THAT'S YOUR POINTS
ONE AND TWO, AND YOUR THIRD POINT REGARDING THE DUTY TO WARN THE USER, THE
APPELLATE DIVISION IS SETTING UP AN ESSENTIALLY -- NOT SETTING UP BUT STATING
THAT THERE ARE CIRCUMSTANCES THAT ULTIMATELY MAY OR MAY NOT PROVE THAT IT'S
REASONABLE TO WARN IN PARTICULAR WAYS. AND WHAT I'M WONDERING, AND I'M RAISING
THIS IN PART BECAUSE YOU'VE MADE SIMILAR POINTS IN YOUR BRIEF, WHY IS THE APPELLATE
DIVISION'S RULE WHICH RELIES ON A DETERMINATION OF REASONABLENESS THAT
IS VERY FACTOR SPECIFIC IN ANY WAY A DEPARTURE FROM OUR PRODUCT LIABILITY LAW AS
ITS BEEN HISTORICALLY DEVELOPED. MS. LONG: SURE, THERE ARE
SEVERAL REASONS, YOUR HONOR, WHY IT IS A DEPARTURE, THE REASONABLENESS RULE
THAT THE APPELLATE DIVISION ADOPTED IS A DEPARTURE FROM OUR JURISPRUDENCE. AS
WE DISCUSSED IN OUR PAPERS, THE FOCUS IN STRICT PRODUCTS LIABILITY IS NOT ON THE
DEFENDANT'S CONDUCT, RATHER THE SAFETY OF THE PRODUCT. THIS HAS BEEN REITERATED
BY THIS COURT SEVERAL TIMES IN THE WAIL LYNN MATTER, IN THE COUGH MAN MATTER, AND
THE COURT HAS HELD THAT UNDER STRICT LIABILITY THE MANUFACTURER OF A
DEFECTIVE PRODUCT THAT CAUSES INJURY IS HELD LIABLE EVEN IF THE MANUFACTURER ACTED
REASONABLY, AND THAT WAS THE RULING IN O'BRIEN, WHICH WAS DECIDED IN 1983
BY THIS COURT, AND IN THAT CASE THE COURT WROTE UNDER STRICT LIABILITY A MFSH
MANUFACTURER THAT PRODUCES DEFECTIVE PRODUCTS IS LIABLE EVEN IF THOSE
PRODUCTS ARE SOMETHING PRODUCED. JUSTICE PATTERSON: WE'RE TALKING
ABOUT A WARNING CASE, THE DESIGN DEFECT IS A WHOLE CATEGORY THAT AS I UNDERSTAND
IS REALLY NOT OUR ISSUE HERE, WE'RE TALKING ABOUT A FAILURE TO WARN CASE.
MS. LONG: SURE. JUSTICE PATTERSON: AND OF COURSE YOU WOULD
AGREE THAT COURTS CAN TAKE INTO ACCOUNT THE PARTICULAR CIRCUMSTANCES THAT
THE SITUATION PRESENTS, WHAT THE NATURE OF THE DANGER IS, WHAT WARNINGS ARE FEASIBLE
AND WHAT THE MANUFACTURER DID TO WARN AND JUDGEMENT THAT UNDER A STANDARD
OF REASONABLENESS. MS. LONG: I DON'T AGREE WITH THAT UNDER
STRICT LIABILITY, YOUR HONOR, I THINK THAT THE CASE LAW IS CLEAR THAT EVEN IF THE
MANUFACTURER ACTED REASONABLY, IN STRICT LIABILITY IF THEIR PRODUCT CONTAINED A
N INADEQUATE WARNING AND THEREBY INJURED SOMEONE, THEY ARE RESPONSIBLE.
AND THAT IS THE DIFFERENCE BETWEEN NEGLIGENCE AND STRICT LIABILITY THAT I THINK
IN SOME WAYS THE APPELLATE DIVISION OVERLOOKED HERE WHEN THEY FORMED A
REASONABLENESS RULE. AND THERE IS A CONNECTION BETWEEN DESIGN DEFECT CASES AND
FAILURE TO WARN CASES. IN FA SHAD TODAY THIS COURT WROTE THAT THERE ARE STRONG
CONCEPTUAL SIMILARITIES BETWEEN WARNING AND SAFETY DEVICE CASES AND THAT'S
WHAT WE HAD RELIED ON AND POINTED THE COURT TO THE SAFETY DEVICE CASES SUCH AS
VEX KA IN OUR PAPERS, I THINK VEX KA IS VERY INSTRUCTIVE TO THE COURT HERE
BECAUSE IN THAT CASE THE SUPREME COURT REJECTED THE APPELLATE DIVISION'S RELIANCE
ON THE RESTATEMENT, IT SAID THAT IF THE RESTATEMENT WOULD ALLOW A MANUFACTURER
TO RELY ON THE PURCHASER TO INSTALL A SAFETY DEVICE, THEN THE RESTATEMENT SHOULD BE
REJECTED. THAT SAME REASONING APPLIES HERE. YOU COULD TAKE THE HOLDING
FROM VEX KA AND SUBSTITUTE IN AN ADEQUATE WARNING FOR THE PHRASE SAFETY DEVICE
AND THE WHOLE THING WOULD BE EQUALLY APPLICABLE TO THE CIRCUMSTANCES HERE.
JUSTICE PATTERSON: BUT THE CALF -- WE'RE TALKING ABOUT THE FEASIBILITY
OF SAFETY DEVICES IN A DESIGN DEFECT CLAIM, AND OUR JURISPRUDENCE, WHILE THE
CONCEPTS HAVE A LOT OF COMMON GROUND, WE HAVE THE WARNING LAW HAS DEVELOPED AS
WARNING LAW AND OBVIOUSLY IN ASBESTOS CASES WE'RE NOT UNDER THE P L A SO I'M NOT
SUGGESTING IN ANY WAY THE P L A SECTION APPLIES, BUT THE WARNING LAW DOES
TAKE INTO ACCOUNT THE NATURE OF THE VARIOUS RELATIONSHIPS IN THE CASE AND THE
ABILITY TO PROVIDE A WARNING IN TERMS OF HOW TO REACH THE ULTIMATE END USER,
AND SOMETIMES AS THE APPELLATE DIVISION SEEMS TO BE SUGGESTING HERE, WE WANT
MANUFACTURERS TO THINK ABOUT REACHING THE ULTIMATE USER THROUGH THE EMPLOYER AS
WELL AS DIRECTLY, IN THIS CASE AS I UNDERSTAND IT THERE WERE TWO DIFFERENT
PATHS TO CONVEY THE INFORMATION TO THE END USER AND ONE WAS DIRECT ON THE PACKAGES
AND THE OTHER WAS THROUGH THE EMPLOYER. MS. LONG: WELL AND
I THINK -- OH -- JUSTICE PATTERSON: NO, PLEASE GHA HEAD.
MS. LONG: I THINK WHAT'S CRITICAL ABOUT WHAT YOU SAID THERE, YOUR HONOR,
IS AS WELL AS, IN THE COMPLOIMENT CONTRACT THERE ARE TWO DUTIES TO WARN, IF THE
INFORMATION CONVEYED TO THE EMPLOYER IS ALLOWED TO BE CONSIDERED IN ASSESSING THE
ADEQUACY OF THE WARNING TO THE EMPLOYEE, THEN WHAT THE COURT INTENDED TO BE AN
ADDITIONAL DUTY ON THE MANUFACTURER HAS NOW BEEN ALLOWED TO COMPLETELY SUPPLANT
OR REPLACE THE DUTY TO WARN THE EMPLOYEE. JUSTICE PATTERSON:
RESPECTFULLY I DON'T READS THE APPELLATE DIVISION AS SAYING ANYTHING SO
EXTREME. I THINK AS I READ WHAT THEY WERE DOING, LOOK AT MSDS FOR EXAMPLE, THAT'S
SOMETHING THAT HISTORICALLY HAS BEEN PROVIDED TO EMPLOYERS FOR DISTRIBUTION,
POSTING AND SO FORTH, IN AN EMPLOYMENT SETTING, BUT THAT'S ONE AREA IN WHICH
THE -- AN EFFECTIVE WARNING CAN BE DELIVERED WHEN YOU WANT TO INCENTIVIZE
MANUFACTURERS TO PROVIDE WARNINGS ANYWAY THAT THEY CAN, THAT THEY CAN DELIVER
A MS MSDS TO THE EMPLOYER AND THEREFORE HAVE IT AVAILABLE TO THE EMPLOYEES AS WELL AS
WHAT SEEMS TO HAVE OCCURRED HERE WHICH IS WARNINGS ON THE PACKAGE. SO WHAT IS
SO DIFFERENT ABOUT THIS APPELLATE DIVISION DECISION FROM THE PRIOR LAW.
MS. LONG: WELL, WHAT'S DIFFERENT ABOUT IT, YOUR HONOR, IS THAT IN THIS
INSTANCE THE JURY FOUND THAT THE WARNINGS ON THE PRODUCT ARE INADEQUATE. I DON'T
THINK THAT UNION CARBIDE ORB THE ME CHEE HAVE POINTED TO WURNL CASE WHERE
THE WARNINGS ON THE PRODUCT WERE FOUND TO BE INADEQUATE AND YET THE MANUFACTURER
WAS STILL ALLOWED TO ESCAPE RESPONSIBILITY BECAUSE THEY ACTED "RESPONSIBLY
" OR REASONABLY. THAT IS JUST NOT PART OF STRICT LIABILITY WHERE IT MAY BE PART
OF NEGLIGENCE, AND, YES, WE DO WANT MFRP HE REMEMBERS TO WARN THROUGH BOTH
METHODS OF COMMUNICATION, DIRECTLY TO THE EMPLOYEE AND TO THE EMPLOYER AND
THAT'S WHAT COUGH MAN AND FEAR HELD, BUT FOR EXAMPLE, THE MSDS'S THAT YOU RAISED,
UNION CARBIDE MADE A CHOICE NOT TO SEND THOSE TO THE EMPLOYERS, THOSE MSDS'S
COULD HAVE BEEN INCLUDED IN THE PAL LET'S OF WHAT WAS SHIPPED TO THE PRODUCT USERS,
INSTEAD THEY WERE NOT SENT TO THE PRODUCT USERS, OEBL TO THE EMPLOYER.
BY DOING THIS UNION CAR BIETD IS NOW TAKING THE CHOICE OF WHETHER TO WORK WITH
THIS HAZARDOUS PRODUCT OUT OF MR. EDENFIELD'S HANDS BY NOT PROCEED
ADVISING HIM WITH ALL THE INFORMATION HE NEEDS AND INSTEAD MADE IT THAT THE EMPLOYER
HAS THE CHOICE OF WHAT TO PASS ON TO MR. EDENFIELD OR NOT, AND THE COURT HAS
SAID WE DO NOT LEAVE PRODUCT SAFETY TO THE HAPHAZARD CONDUCT OF THE PURCHASER.
THE COURT HAS ACKNOWLEDGED THAT EMPLOYERS WILL SUBJECT THEIR EMPLOYEES TO DANGEROUS
CONDITIONS INCLUDING EXPOSURE TO ASBESTOS AND THIS IS PART OF WHAT HAS LED
THE COURTS TO REJECT THE IDEA OF THE SOPHISTICATED USER DEFENSE UNDER NEW JERSEY
LAW. JUSTICE PATTERSON: BUT AS I UNDERSTAND WHAT THE APPELLATE
DIVISION WANTS TO DO IS IT WANTS TO PRESENT ALL OF THAT, ALL OF THOSE FACTS, AND
HAVE THE JURY MAKE A DETERMINATION ULTIMATELY, PROPERLY CHARGED, AS TO
WHAT THE ADEQUACY OF THE WARNINGS IN EACH CASE OR POTENTIALLY FOUR OR FIVE DIFFERENT
ROUTES, AND YET THE ISSUE WITH THIS CHARGE THAT THE TRIAL COURT GAVE IS THAT THE
JURY WAS TOLD, AND THERE WAS EVEN A JURY QUESTION ABOUT IT, THE JURY WAS TOLD WHAT
HAPPENED WITH THE WARNINGS PROVIDED TO THE EMPLOYER CANNOT BE CONSIDERED, AS
I UNDERSTAND, THE DUTY TO PUT AN ADEQUATE WARNING ON THE PRODUCT CANNOT BE DISCHARGED
BY WARNINGS AND INFORMATION TO THE EMPLOYER. MS. LONG:
CORRECT. AND THAT WAS A CORRECT STATEMENT OF THE LAW. BECAUSE THE DUTY TO WARN
THE EMPLOYEE CANNOT BE DELEGATED AND THAT IS -- RELYING ON AN EMPLOYER TO
PASS ON INFORMATION IS THE DEFINITION OF DELEGATING. IN HUES THE APPELLATE DIVISION
SAID THAT THE MANUFACTURER COULD NOT RELY, USING THAT WORD SPECIFICALLY,
UPON PLAINTIFF'S EMPLOYERS TO ISSUE WARNINGS TO EMPLOYEES BECAUSE THE DUTY TO
WARN IS NONDELEGABLE. JUSTICE ALBIN: SO TELL ME IF I'M MISTAKEN,
BECAUSE I'M TRYING TO -- THIS IS A VERY COMPLICATED CASE, BUT ON THE VERDICT
SHEET, 3 A, WHEN THE JURY ASKED FOR AN EXPLANATION, THE COURT WAS LIMITING ITSELF
TO THE WARNINGS ON THE BAGS. HE WASN'T TALKING ABOUT 3 B. MS.
LONG: CORRECT. JUSTICE ALBIN: 3 B DEALT WITH THE EMPLOYER.
SO HE WAS BASICALLY SAYING THAT'S ALL YOU LOOK AT WITH RESPECT TO THE WARNINGS ON THE
BAGS, WERE THEY ADEQUATE OR WERE THEY INADEQUATE. AM I CORRECT?
MS. LONG: THAT'S CORRECT, YOUR HONOR, AND IN THIS CASE THE ONLY EVIDENCE OF
DIRECT COMMUNICATIONS WITH THE PRODUCT USERS WERE THE WARNINGS ON THE BAGS.
I'M NOT SAYING THAT THERE'S -- JUSTICE ALBIN: YES. THE SECOND PIECE,
I'M TRYING TO GET A HOLD OF THIS, SO THE ONE IS WHERE HE SAYS HAVE THE
PLAINTIFFS PROVEN BY A PREPONDERANCE OF THE EVIDENCE THAT DEFENDANT UNION CARBIDE
FAILED TO TAKE REASONABLE STEPS THAT ITS WARNINGS REACHED MR. EDENFIELD,
THAT'S A BURDEN OF PROOF, WE DON'T KNOW WHETHER THEY ACTUALLY INFORMED EDENFIELD,
ALL WE KNOW IS THAT THE PLAINTIFF DIDN'T PROVE THAT PIECE OF IT, IT DOESN'T
SHOW THAT UNION CARBIDE AFFIRMATIVELY TOLD HIM ABOUT THE DANGERS. AM I CORRECT?
MS. LONG: THAT'S CORRECT, YOUR HONOR. IN FACT --
JUSTICE FERNANDEZ-VINA: ISN'T ALWAYS THE PLAINTIFF'S BURDEN OF PROOF UNTIL
ISN'T THAT THE PLAINTIFF HAS TO PROVE WHAT THEY DID OR DID NOT DO, THE BURDEN
LIES WITH THE PLAINTIFF THAT SOMETHING A MISS, THERE WAS NEGLIGENCE, THERE WAS
FAILURE TO WARN, IT DOESN'T SHIFT AT ANY POINT AS I UNDERSTAND IT.
MS. LONG: WELL, THAT'S CORRECT, UNLESS WE GET TO THE HEATING PRESUMPTION, THEN
IT WOULD SHIFT. JUSTICE PATTERSON: THE HEATING PRESUMPTION IS
NOT IN THE CASE. JUSTICE ALBIN: YES, THE ONLY RELEVANCE OF MY
QUESTION WAS WE KNOW AFFIRMATIVELY WHAT THE JURY FOUND, THEY FOUND THAT THE WARNING
WAS INADEQUATE. MS. LONG: CORRECT. JUSTICE ALBIN:
OKAY. WE DON'T KNOW WHETHER OR NOT THE MANUFACTURER DID ANYTHING TO DISABUSE THE
EMPLOYEES OF THE INADEQUACY OF THE WARNINGS. MS. LONG:
THERE IS NO PROOF IN THIS CASE THAT MR. EDENFIELD RECEIVED ANY OF THE INFORMATION
THAT UNION CARBIDE PURPORTEDLY GAVE TO THE EMPLOYER. JUSTICE
PATTERSON: RIGHT, BUT IN TERMS OF WHAT PROOFS THERE WERE, THE GENTLEMAN IS DECEASED,
REALLY ALL OF THE EVIDENCE CAME THROUGH HIS CO-WORKER. MS. LONG:
THAT'S CORRECT, MR. DOVER. JUSTICE PATTERSON: SO IN TERMS OF ANYONE
TESTIFYING, HIM TESTIFYING, UNFORTUNATELY HE HAD DIED BEFORE TRIAL, HE DIDN'T
TESTIFY WHETHER HE DID OR DIDN'T GET WARNINGS, BUT THERE WAS QUITE A BIT OF
EVIDENCE, TELL ME IF I'M WRONG, ABOUT WHAT THE MANUFACTURER SENT TO THE EMPLOYER
AND WHAT THEY REQUESTED BE DISSEMINATED TO THE EMPLOYEES. AM I CORRECT ABOUT THAT?
MS. LONG: THERE WAS QUITE A BIT OF CONFLICTING EVIDENCE ON THAT,
YOUR HONOR. JUSTICE PATTERSON: OKAY. MS.
LONG: BACK AND FORTH. JUSTICE PATTERSON: AND I'M SURE YOU DID AN
AD ADD MA RABL JOB OF PRESENTING THE OTHER SIDE OF THAT BUT THERE WAS EVIDENCE
FROM WHICH THE JURY COULD MAKE A DETERMINATION THAT THE MANUFACTURE EARLY SENT
DETAILED INFORMATION TO THE EMPLOYER WITH THE REQUEST THAT THAT BE PASSED
ALONG TO THE EMPLOYEE, RIGHT? MS. LONG: THERE IS A VERSION OF THE
FACTS FROM WHICH YOU COULD INFER THAT. JUSTICE PATTERSON:
I'M JUST SAYING A REASONABLE JURY COULD INFER. MS. LONG:
CORRECT. JUSTICE PATTERSON: I'M NOT SAYING WHAT EVIDENCE
WAS STRONGER, BUT THE EVIDENCE WAS THERE. AND THEN YOU HAVE THE JURY FINDING WHAT
IT DID ON THAT SECOND QUESTION, RIGHT, WHICH IS THE PLAINTIFF DID NOT MEET
HER BURDEN OF PROOF WITH RESPECT TO THAT ISSUE. MS. LONG: CORRECT.
IF THERE HAD BEEN AN ADEQUATE WARNING ON THE PRODUCT, THEN WE WOULD HAVE LOST,
BECAUSE THEY ALSO TOOK THE SECOND STEP THAT'S REQUIRED BY COFFMAN TO MAKE SURE
THAT -- TO ALSO WARN THE EMPLOYER. BUT THEY NEVER -- P BUT.
JUSTICE PATTERSON: BUT THE JURY FINDING IS, AND I UNDERSTAND JUSTICE ALBIN SAYING
WE DON'T KNOW FOR SURE BECAUSE WRE DON'T HAVE THE PLAINTIFF SAYING IT, BUT THE
JURY FINDING IS THAT THAT ASPECT OF THE CASE WAS NOT PROVEN BY PLAINTIFF.
MS. LONG: RIGHT, TO THE EXTENT -- THE PLAINTIFF DID NOT PROVE THAT THEY
DID NOT TAKE REASONABLE STEPS TO GET THE INFORMATION TO THE EMPLOYER.
JUSTICE PATTERSON: RIGHT. JUSTICE ALBIN: BUT LET ME ASK YOU
A QUESTION ABOUT PROXIMATE CAUSE, IF THE JURY DETERMINED THAT THE EMPLOYER
ACTUALLY TOLD THE EMPLOYEE ABOUT THE DANGERS, WOULDN'T THAT HAVE INTERFERED WITH
THE PROXIMATE CAUSE, THEN THE JURY WOULD NOT HAVE FOUND THAT THE INADEQUATE
WARNINGS WAS THE PROXIMATE CAUSE OF THE INJURIES. AM I MISTAKEN?
MS. LONG: I THINK YOU ARE RIGHT, JUSTICE, THAT IF THERE WAS EVIDENCE THAT MR.
EDENFIELD WAS WARNED AND IGNORED THOSE WARNINGS THAT WOULD REBUT THE HEATING
PRESUMPTION AND GO TO CAUSATION. JUSTICE PATTERSON: BUT THAT'S NOT
IN THIS CASE AND THE JURY WAS NEVER ASKED SPECIFICALLY DID HE RECEIVE THOSE
WARNINGS, RIGHT, THAT WOULDN'T BE AN APPROPRIATE THINK TO ASK A JURY IN THIS KIND
OF CASE, THE JURY FOUND THAT THE PLAINTIFF DID NOT PROVE THAT THE MANUFACTURER
DIDN'T TAKE REASONABLE STEPS IN ORDER TO SEE THAT THE, I'M PARAPHRASING, SEE THAT
THE EMPLOYEE GOT THE WARNINGS, THAT'S WHAT THE JURY WAS ASKED TO DETERMINE
AND THAT'S WHAT IT DID DETERMINE. MS. LONG: I DISAGREE THE EXACT
WORDING OF THAT, YOUR HONOR. JUSTICE PATTERSON: I WASN'T
READING FROM -- I WAS ONLY PARAPHRASING, BUT THE JURY -- I'M SORRY, GO AHEAD,
PLEASE. MS. LONG: WHAT I THINK THE IMPORTANT DISTINCTION
IS IS THAT THE JURY FOUND IN QUESTION -- IN ANSWERING QUESTION 3 B THAT THE MANUFACTURER
TOOK ADEQUATE STEPS TO WARN THE EMPLOYER. JUSTICE PATTERSON:
YOU MENTIONED EARLIER THAT REASONABLENESS DOESN'T BELONG IN THE CASE.
MS. LONG: CORRECT. JUSTICE PATTERSON: ARE YOU SAYING THAT
ASKING THE JURY IF THEY TOOK REASONABLE STEPS AS THIS TRIAL COURT DID WHICH CERTAINLY
YOU DIDN'T OBJECT TO WAS NOT AN APPROPRIATE WAY TO PUT THAT BEFORE THE JURY.
MS. LONG: FOR THAT QUESTION I THINK IT WAS APPROPRIATE BECAUSE
THAT'S THE SPECIFIC LANGUAGE FROM COFFMAN. JUSTICE PATTERSON:
RIGHT, SO GOING BACK TO THE BEGINNING OF YOUR PRESENTATION, REASONABLENESS IS
THE TEST AS TO THAT ASPECT, IS IT NOT? AND IF IT'S NOT, WHAT --
MS. LONG: ONLY AS TO WARNING THE -- AS TO TAKING THOSE STEPS TO GET THE WARNING
TO THE EMPLOYER, THE TEST FOR THE ADEQUACY OF THE PRODUCT WARNING IS NOT THE
NEGLIGENCE OR A REASONABLENESS STANDARD, BUT IS THE PRODUCT SAFE.
JUSTICE PATTERSON: I UNDERSTAND, BUT WHEN YOU STARTED OUT YOU SAID THIS IS ALL
WRONG, REASONABLENESS DOESN'T BELONG, THAT'S NOT NEGLIGENCE, THAT'S NOT
IN HERE AND THE REASON I WAS CONFUSED, MY FIRST QUESTION, REASONABLENESS AS TO
WHAT STEPS THE MANUFACTURER TAKES TO REACH AN END USER IN AN INDUSTRIAL SETTING
AND A WORK PLACE SETTING HAS ALWAYS BEEN PART OF OUR LAW, RIGHT.
MS. LONG: AGAIN, I THINK COFFMAN WAS TALKING ABOUT REASONABLENESS IN THE STEPS
TO REACH THE EMPLOYER. THE QUESTION ABOUT A WARNING ON THE --
JUSTICE PATTERSON: NO, NO, I'M NOT TALKING ABOUT THE CONTENT. I WASN'T TALKING ABOUT THE CONTENT OF THE WARNINGS, THAT'S NOT A REASONABLENESS TEST, BUT WHEN
REASONABLENESS AND WE'RE GETTING STRICT LIABILITY ALL MIXED UP WITH NEGLIGENCE
AND THIS IS REALLY CONTRARY TO OUR LAW, THE REASON I SAY THIS IS BECAUSE
THAT ASPECT OF A FAILURE TO WARN IN A WORK PLACE CASE HAS ALWAYS BEEN A REASONABLENESS
TEST, HASN'T IT? MS. LONG: I DON'T AGREE, NO, YOUR HONOR,
I THINK YOU GET TO THE REASONABLENESS STEP AFTER THE FIRST QUESTION. THE
FIRST QUESTION HAS TO BE WAS THERE AN ADEQUATE WARNING AND I DON'T THINK YOU REALLY
GET TO THE REASONABLENESS UNLESS THERE'S AN ADEQUATE WARNING, BECAUSE TSD
IS THERE AN ADEQUATE WARNING, AND THEN SECOND, DID THE MANUFACTURER TAKE REASONABLE
STEPS TO MAKE SURE THAT ADEQUATE WARNING GOT TO THE EMPLOYER. BUT YOU HAVE
TO HAVE THAT THIRD STEP WHICH IS NOT A REASONABLENESS INQUIRY.
JUSTICE PATTERSON: BUT HERE WHAT THE TRIAL COURT DID WAS TO SAY THAT THE ADEQUACY
OF THE WARNING HAD TO EXCLUDE EVERYTHING THAT WAS DONE BY THE MANUFACTURER.
MS. LONG: EVERYTHING THAT WASN'T COMMUNICATED TO -- THAT WASN'T
DIRECTED FROM THE MANUFACTURER TO THE END USER, YES, THAT SHOULD BE EXCLUDED
IN ADDRESSING OR ASSESSING THE ADEQUACY OF THE WARNING ON THE PRODUCT TO THE END
USER, YOU CANNOT LOOK AT COMMUNICATION OUTSIDE OF THAT. JUSTICE
ALBIN: BUT TELL ME IF I'M -- THE TRIAL COURT BASICALLY FOLLOWED COFFMAN, AND COFFMAN
SAID YOU'VE GOT TO GIVE WARNINGS TO THE EMPLOYEE AND YOU'VE GOT TO GIVE
WARNINGS TO THE EMPLOYER AND THEY SAID THOSE ARE CONCURRENT RESPONSIBILITIES, BECAUSE
COFFMAN UNDERSTOOD THAT CERTAIN EMPLOYERS ARE NOT GOING TO ADEQUATELY TELL
THE EMPLOYEES AND THAT'S THE REASON WHY THERE'S A NONDELEGABLE DUTY ON THE PART
OF THE MANUFACTURER TO SPEAK DIRECTLY TO THE EMPLOYEE. MS. LONG:
THAT'S EXACTLY RIGHT. JUSTICE PATTERSON: BUT COFFMAN ALSO SAID
THAT THE MANUFACTURER MAY SOMETIMES, NOT ALWAYS, RELY ON SUPERVISORS AND
MANAGERS TO BECOME APPRISED OF SAFETY HAZARDS AND RE TRANSMIT THOSE WARNINGS TO
WORKERS RATHER THAN HAVE THE WORKERS INDIVIDUALLY READ PRODUCT WARNINGS AND
ALSO NOTE THAT THAT'S A TYPICAL MATTER BY WHICH INFORMATION IS DISSEMINATED IN
THE WORK PLACE. JUSTICE FERNANDEZ-VINA: ISN'T THAT FIRST OF
ALL THE REASON THAT A MANUFACTURER WARNS EMPLOYERS SO THAT THEY WILL IN TURN WARN
THEIR EMPLOYEES, ISN'T THAT PART AND PARCEL OF THE REASON FOR HAVING MANUFACTURERS
WARN EMPLOYERS. MS. LONG: IT IS, BUT AGAIN IT NEEDS TO BE
AN ADDITIONAL DUTY BECAUSE AS JUSTICE ALBIN SAID WE CAN'T COUNT ON THE
EMPLOYER TO PASS THOSE WARNINGS ON. IN FACT THE LAW SAYS THAT A MFSH ERR, THE
KNOWLEDGE THAT AN EMPLOYER WON'T PASS THOSE WARNINGS ARE IS IMPUTED TO THE
MR. ERR, AND SO THAT'S WHY THERE NEEDS TO BE AN ADDITIONAL DUTY AND YES THE REASON
FOR THE ADDITIONAL DUTY IS SO THE EMPLOYER WILL ALLOW THE EMPLOYEE TO ACT MORE
SAFELY AND SO THAT IF THEY FOR SOME REASON DON'T GET THE WARNING ON THE PRODUCT
THERE'S OTHER WAYS FOR THE WARNING TO GET TO THEM. BUT ALL THE COUGH MAN
PRESUMES, IT STARTS WITH THE ADEQUATE WARNING TO THE EMPLOYEE, TO THE PRODUCT USER.
THE ADDITION -- JUSTICE FERNANDEZ-VINA: THEY WORK HAND IN
HAND. MS. LONG: EXACTLY, BUT THEY CAN'T -- THE INTERPRETATION
THAT THE APPELLATE DIVISION PUT ON IT BELOW -- JUSTICE
FERNANDEZ-VINA: IN THIS CASE. MS. LONG: DOESN'T ALLOW THEM TO WORK
HAND -- IT WOULD ALLOW NO WARNING ON THE PRODUCT, OR AS IN THIS CASE AN
INADEQUATE WARNING ON THE PRODUCT, AND THEN ADDITIONAL INFORMATION TO THE EMPLOYER
TO SOMEHOW SATISFY THE ADEQUACY OF THE WARNING ON THE PRODUCT. AND THAT'S
WHAT WE'RE SAYING CANNOT BE ALLOWED. JUSTICE FERNANDEZ-VINA: THAT'S
YOUR READING OF THE OPINION, YOUR ANALYSIS OF THE OPINION IN THIS CASE.
MS. LONG: OF THE APPELLATE DIVISION BELOW, YES.
JUSTICE FERNANDEZ-VINA: OKAY. MS. LONG: I MEAN THEY SAID OUTRIGHT
THAT ESSENTIALLY ADEQUACY OF THE PRODUCT WARNING WOULD ONLY BE ONE FACTOR
IN A REASONABLENESS TEST, SO THEY'VE TAKEN WHAT SHOULD BE THE KEY INQUIRY IS THERE
AN ADEQUATE WARNING ON THE PRODUCT AND MADE IT JUST A FACTOR IN THE RANLNESS
INQUIRY WHICH AGAIN STRIPS AWAY STRICT LIABILITY AND ESSENTIALLY MAKES IT A
NEGLIGENCE INQUIRY. JUSTICE ALBIN: AND ONE OF THE REASONS THAT
COFFMAN REQUIRED THIS TWO PRONG APPROACH AND I'M QUOTING, UNFORTUNATELY THERE ARE
EXAMPLES OF EMPLOYERS WHO FAIL TO TAKE REASONABLE MEASURES TO INSURE THE
SAFETY AND HEALTH OF THEIR EMPLOYEES, IN THE FACE OF WARNINGS, SOME DON'T, MANY
RESPONSIBLE ONES DO DO IT, BUT THE COURT WAS FOCUSING ON DIRECT COMMUNICATION WITH
THE EMPLOYEE AND THEN HOPEFULLY THIS SECOND PRONG WITH THE EMPLOYERS AND
AN EXTRA LEVEL OF COVERAGE AND PROTECTION, AM I CORRECT ABOUT COFFMAN.
MS. LONG: CORRECT. AND THAT IS THE SOLUTION THAT THE COURT CAME UP WITH IN
COFFMAN TO THE ISSUE OF WORK PLACE WARNINGS AND HOW BEST TO PROTECT
WORKER'S SAFETY, AND THE RULE THAT THE APPELLATE DIVISION ADOPTED VIOLATES OUR PUBLIC
POLICY IN SEVERAL WAYS BECAUSE FOR INSTANCE RISK SPREADING IS A MAJOR GOAL
OF OUR STRICT PRODUCTS LIABILITY, IN BA SHOT AT THAT THE COURT SAID THAT MANUFACTURERS
ARE BEST PLACED TO SPREAD THE RISKS, THEY CAN FACTOR THE COSTS OF THE INJURIES
INTO THE PRICE OF THE PRODUCT, INSURE AGAINST IT AND PASS THAT ON, AND THAT
IS FAR MORE DESIRABLE UNDER OUR LAW THAN THE INNOCENT VICTIM, THE WORKER, SUFFERING
THE RISKS AND THE COSTS ON THEIR OWN. JUSTICE PATTERSON:
BUT COUNSEL THAT'S A VERY GENERAL STATEMENT, IF THAT WERE THE OVERRIDING
PRINCIPAL IN EVERY PRODUCT LIABILITY CASE, THERE WOULD BE NO INCENTIVE FOR THE
EMPLOYERS TO DO THE RIGHT THING AND WARN BECAUSE THE ADEQUATE WARNINGS AND THE
MEASURES THEY MAY OR MAY NOT TAKE, BUT IF THEY DO, TAKE TO GET THE EMPLOYER
THE INFORMATION THEY NEED WOULD DO THEM NO GOOD BECAUSE THE OVERRIDING ISSUE WOULD BE
WE'RE JUST GOING TO SPREAD THE RISK TO THE MANUFACTURERS. THAT'S A GENERAL
PRINCIPLE THAT GUIDED THE DEVELOPMENT OF OUR PRODUCT LIABILITY TO REALLY IN AS
BESTOS CASES EARLY ON, BUT THAT SDVENT ANALYSIS THE QUESTION AS TO HOW BEST TO
APPROACH A PARTICULAR FACTUAL SCENARIO, WOULD YOU AGREE WITH THAT.
MS. LONG: WELL I THINK IT'S IMPORTANT TO CONSIDER HERE, YOUR HONOR, BECAUSE
THE RESULT OF THE APPELLATE DIVISION RULE IS THAT MR. EDENFIELD AND OTHER
WORKERS LIKE HIM WILL BE THE ONES TO BEAR THE RIVENGS, BECAUSE THE MANUFACTURER
WILL BE ABLE TO AVOID LIABILITY BY SAYING IT REASONABLY PROCEED RELIED ON THE EMPLOYER,
THE EMPLOYER IS NOT SUBJECT TO SUIT IN TORT, SO THERE IS NO REMEDY IN THE
TORT SYSTEM FOR THE INNOCENT INJURED WORKERS WHO NEVER RECEIVED ADEQUATE WARNINGS.
PRODUCTS THAT THEY WERE WORKING ON. JUSTICE PATTERSON: BUT
YOU'RE ASSUMING THEY'RE NOT TAKING REASONABLE STEPS, I MEAN I DON'T THINK
THERE'S ANYTHING IN THE APPELLATE DIVISION'S DECISION THAT OB YATS THE NEED OR
AND LIGHTENS THE BURDEN ON MANUFACTURERS TO TAKE THOSE REASONABLE STEPS AS
YOUR JURY INSTRUCTIONS REFLECTED, WHICH IS THE PART OF THE TEST HERE.
MS. LONG: BUT EVEN IF THEY TAKE THOSE REASONABLE STEPS, YOUR HONOR, THERE'S
NO GUARANTEE THAT THE EMPLOYER WILL PASS THOSE WARNINGS ON. AND SO BY PUTTING
THIS EMPLOYER IN THE MIDDLE AND SUBJECTING THE COMMUNICATION OF WARNINGS TO THEIR
HAPHAZARD CONDUCT, WE ARE CREATING SITUATIONS WHERE INNOCENT VICTIMS ARE GOING
TO BE THE ONES TO BEAR THE RESPONSIBILITY BECAUSE THE MANUFACTURER ACTED
REASONABLE IN RELYING ON THE EMPLOYER, THE EMPLOYER -- MAYBE THEY ACTED BADLY BY
NOT PASSING THOSE WARNINGS ON, BUT THERE IS NO WAY TO HOLD THEM RESPONSIBLE
IN TORT. SO THE WORKERS ARE THE ONES WHO END UP LEFT HOLDING THE BAG SO TO SPEAK.
JUSTICE ALBIN: WHAT PRIME 2 DOESN'T DO YOU KNOW THE REASON
WHY IT DOESN'T NECESSARILY COVER ONE, PRONG 2 IS THAT THE MANUFACTURER DOES
REASONABLY ADVISE THE EMPLOYER, IT'S NOT REASONABLY ADVISE THE EMPLOYER AND
ENSURE THAT THE EMPLOYER TOLD THE EMPLOYEE, THAT'S NOT PART OF OUR JURISPRUDENCE.
MS. LONG: CORRECT. JUSTICE ALBIN: AND THAT'S
THE REASON WHY THE FIRST PART, THE COMMUNICATION WITH THE EMPLOYEE HAS
BEEN ALWAYS CRITICAL TO OUR JURISPRUDENCE. MS. LONG: ABSOLUTELY CORRECT,
YOUR HONOR. JUSTICE PATTERSON: BUT THAT'S NOT ABANDONED
BY THE APPELLATE DIVISION AT ALL. I MEAN THE APPELLATE DIVISION TALKS ABOUT THAT.
AND LET ME ASK YOU THIS, IF YOU PUT A MSDS IN A PALLET, IS THERE ANY GUARANTEE
THAT THE EMPLOYEES WHO ARE BUSY AND UNDER PRESSURE IN THE WORK PLACE ARE
GOING TO STOP AND READ A MSDS. MS. LONG: THERE IS NO GUARANTEE,
YOUR HONOR, BUT PUTTING IT IN THERE IS NO BURDEN ON THE MANUFACTURER AS
OUR COURTS HAVE REPEATEDLY SAID, ADEQUATE WARNINGS ARE A MINIMAL IF ANY BURDEN
ON THE MANUFACTURER AND IF INCLUDING THAT INCREASES THE LIKELIHOOD, IF IT
AT ALL INCREASES THE LIKELIHOOD THAT MR. EDENFIELD OR HIS CO-WORKERS WOULD SEE
IT AND BE SAVR, THEN THAT'S WHAT THE LAW REQUIRES. JUSTICE
PATTERSON: JUST OUT OF CURIOSITY, WAS PUTTING A MSDS IN A PALLET SOMETHING THAT
HAPPENED IN THESE ASBESTOS SITUATIONS DURING THIS TIME PERIOD.
MS. LONG: I BELIEVE THERE ARE MANUFACTURERS WHO INCLUDE MSDS SHEETS DIRECTLY WITH
THE PRODUCTS. JUSTICE PATTERSON: THAT'S DELIVERED TO THE
EMPLOYER. MS. LONG: WELL THE PRODUCT IS DELIVERED TO THE PRODUCT
AS WELL, BUT THEY PUTTER IT WITH THE PRODUCT. JUSTICE
PATTERSON: BUT IT ULTIMATELY GOES TO THE EMPLOYER AND THE EMPLOYER COULD BE UNPACKING
THESE THINGS AND THROWING THE MSDS IN THE TRASH. MS. LONG:
THEY COULD, YOUR HONOR, IT'S POSSIBLE, AND BECAUSE WE CAN'T RELY ON EMPLOYERS NOT
TO DO THAT IS WHY THE PRODUCT SHOULD HAVE AN ADEQUATE WARNING ON IT ITSELF.
JUSTICE ALBIN: IN THIS CASE WERE THERE INADEQUATE WARNINGS
ON THE BAGS THEMSELVES? MS. LONG: THERE WERE, YOUR HONOR, THERE
WERE TWO WARNINGS THAT UNION CARBIDE PLACED ON THE PRODUCT, THE JURY FOUND
THE FIRST WARNING THAT IT PUT ON IN 1969 UNION CARBIDE ITSELF DESCRIBED AS THE
MOST INNOCUOUS WARNING THAT IT COULD DEVICE, IN 1962 THEY PUT THE OSHA
MINIMAL REQUIREMENT ON THE PRODUCT, BUT WE ALSO HAD ARE DOCUMENTS FROM UNION CARBIDE
SHOWING THAT THEY CONSIDERED OTHER WARNINGS, BETTER WARNINGS THAN THE ONES
THEY PUT ON THERE, THEY SPECIFICALLY SAID INTERNALLY THE OSHA WARNING IS
INADEQUATE, WE COULD PUT ANOTHER WARNING ON AND THEN THEY DIDN'T. AND THIS IS THE
EVIDENCE THAT LED THE JURY TO FIND THAT THOSE WARNINGS ON THE PRODUCT WERE
INADEQUATE. JUSTICE ALBIN: THE REASON I'M ASKING THIS QUESTION,
THIS ISN'T A QUESTION OF LEAVING A PAMPHLET ON A PALLET, UNION CARBIDE FAILED TO
PUT WARNINGS ON THE BAGS THAT WERE BEING OPENED UP BY THE CORK WERS.
MS. LONG: THAT'S CORRECT, AND THE INADEQUATE WARNINGS THEY PUT ON THERE COULD
LULL THE PRODUCT USERS INTO THINKING THAT'S ALL THE INFORMATION, CERTAINLY
THERE WAS NOTHING ON THE BAGS THAT WOULD HAVE ALERTED MR. EDENFIELD AND HIS CO-WORKERS
THAT THEIR EMPLOYER HAD ANY ADDITIONAL INFORMATION AND THAT THEY SHOULD
SEEK THAT INFORMATION FROM THEM. SO WHAT APPEARED TO BE A WHOLE COMPLETE WARNING
WAS ON THE BAG, BUT THAT WARNING WAS INADEQUATE AND DIDN'T CONTAIN THE
INFORMATION THAT THE EMPLOYEES NEEDED TO KNOW HOW TO WORK SAFELY WITH THE PRODUCT
OR TO DECIDE WHETHER THEY WANTED TO WORK WITH IT AT ALL, AND SO BY PROVIDING THAT
INADEQUATE WARNING AND THEN ALLOWING THEM TO DELEGATE THEIR DUTY TO PROVIDE
ALL OF THE NECESSARY SAFETY INFORMATION TO THE EMPLOYER, LEAVING THAT UP TO THE
EMPLOYER'S CHOICE, THEY HAVE PUT THE EMPLOYEES AND THE PRODUCT USERS IN A
POSITION TO BE INJURED AND TO NOT HAVE THAT MEANINGFUL CHOICE ABOUT HOW TO WORK
WITH THE PRODUCT. JUSTICE SOLOMON: LET ME ASK YOU TWO NARROW
QUESTIONS, AND THEY'RE VERY NARROW. MY UNDERSTANDING IS THAT THE JURY
CONCLUDED AS TO QUESTION 3 A THAT THE WARNINGS ON THE BAGS WERE INADEQUATE.
PERIOD. MS. LONG: CORRECT. JUSTICE SOLOMON:
IS IT YOUR KENS, I THINK IT IS YOUR CONTENTION, THAT ESSENTIALLY THE ANSWER TO
3 B THEN IS IRRELEVANT, SUPERFLUOUS. MS. LONG: YES. YES.
JUSTICE SOLOMON: BUT THE JUDGE DID NOT IN THE JURY VERDICT
SHEET SAY IF YOU ANSWER YES TO QUESTION 3 A, YOU DON'T NEED TO GO TO 3 B, GO DIRECTLY
TO THE NEXT ONE. CORRECT SFL. MS. LONG: CORRECT.
JUSTICE SOLOMON: NOW I JUST HAVE A COUPLE OF QUESTIONS P-AND I ASSUME THAT
YOUR CONTENTION IS NO MATTER WHAT EFFORTS THE MANUFACTURER HERE DID, GAVE,
WHATEVER EFFORTS THEY ENGAGED IN TO GET ADDITIONAL INFORMATION, BECAUSE APPARENTLY
THERE WAS ADDITIONAL INFORMATION THAT WAS SENT TO THE EMPLOYER AND YOU DON'T
DISPUTE THAT, WHATEVER EFFORTS THEY MADE TO GET THE INFORMATION TO THE EMPLOYER
AND HAVE IT PASSED ALONG TO THE EMPLOYEE IS ESSENTIALLY IRRELEVANT BECAUSE IT WAS
NOT DELIVERED DIRECTLY TO THE EMPLOYEE ON THE BAG. ONCE YOU GET TO THE
WARNING ON THE BAG BEING INADEQUATE, THAT'S THE EBDZ OF THE STORY.
MS. LONG: THAT'S CORRECT, YOUR HONOR, AND JUST ONE CAVEAT, THAT IS FACT SPECIFIC,
IF THERE HAD BEEN ANY OTHER EVIDENCE OF UNION CARBIDE TRYING TO DIRECTLY
AS IN SOME OF THE EVIDENCE -- JUSTICE SOLOMON: LET ME STOP YOU THERE,
I JUST WANTED TO UNDERSTAND THAT, THERE WERE OTHER PAMPHLETS, THERE WERE
OTHER LETTERS, THERE WERE OTHER THINGS CENTS TO THE EMPLOYER WITH INSTRUCTIONS
TO PROVIDE IT TO THE EMPLOYEE. YOUR CONTENTION IS THAT DOESN'T MATTER AT
THAT POINT. MS. LONG: THAT'S CORRECT. CORRECT, YOUR HONOR.
JUSTICE SOLOMON: AND MY LAST QUESTION, I MAY BE WRONG BUT
MY RECOLLECTION OF THE RECORD WAS THAT THIS EMPLOYEE, THE DECEDENT, THE PLAINTIFF
'S DECEDENT, DID NOT EVER HANDLE THE BAGS, THAT THE ASBESTOS WAS IN SOME
KIND OF A VAT OR A BIN OR WHATEVER, IT WAS POURED IN BY OTHERS AND HE EXTRACTED
IT FROM THAT, PUT IT IN HIS CONTAINER AND TRANSPORTED IT TO WHEREVER HE WAS
APPLYING IT. THAT HE NEVER ACTUALLY HANDLED THE BAGS, IS THAT RIGHT OR IS THAT
WRONG. MS. LONG: THAT IS WRONG, YOUR HONOR, IN THAT AGAIN
WE DIDN'T HAVE NR EDENFIELD'S TESTIMONY BUT CERTAINLY BASED ON MR. DOVER'S TESTIMONY,
THE BADGE CHERS, WHICH IS WHAT MR. EDENFIELD WAS, WOULD GO TO THE
WAREHOUSE AND GET THE BAGS OF ASBESTOS, TAKE THEM TO THE BATCHING ROOM OR THE MILLION
ROOM, OPEN THEM, WEIGHING THEM, POOR THEM. JUSTICE SOLOMON:
MY RECOLLECTION IS, BECAUSE IT'S A VOLUMINOUS RECORDS, THAT HE ACTUALLY
HANDLED THE BAGS. MS. LONG: YES, YOUR HONOR. JUSTICE
SOLOMON: IF THE EVIDENCE IS HE HANDLED THEM, IT DOESN'T MATTER.
MS. LONG: BUT EVEN IF HE DBTS, HE WAS IN THE SAME 20 BY 20 FOOT ROOM WITH OTHER
PEOPLE HANDLING THEM AND THE COURT HAS TALKED ABOUT THAT INDEED IN THE QUOTE
THAT JUSTICE PATTERSON QUOTED FROM COFFMAN ABOUT RELYING ON PEOPLE THAT PASS ON
WARNINGS WAS A CITING TO THE FER BEE CASE, AND IN THE FER BEE CASE WHAT THE COURT
WAS DISCUSSING IS WHEN THERE ARE ADEQUATE WARNINGS ON THE PRODUCT, WE CAN
ASSUME THAT CO-WORKERS OR EMPLOYERS MAY ORDERLY TRANSMIT THOSE WARNINGS TO THE
INJURED WORKER, SO EVEN IF THE INJURED WORKER DIDN'T READ THINGS HIMSELF,
THAT DOESN'T DEFEAT THE PLAINTIFF'S CAUSATION PROOFS, AND SO THAT IS WHAT THE COUGH
MAN COURT WAS KWEET GO WHEN THEY TALKED ABOUT RELYING ON ORALLY TRANSMITTED
WARNINGS. SO EVEN IF THERE HAD BEEN AN ADEQUATE WARNING ON THE PRODUCT, THE HEATING
PRESUMPTION WOULD APPLY AND WE COULD PRESUME THAT MR. EDENFIELD WOULD HAVE
FOLLOWED IT, WHETHER HE SAW IT OR NOT. BUT IN THIS CASE THERE IS EVIDENCE THAT
MR. EDENFIELD WAS ACTUALLY THE ONE OPENING IT'S TEN OR 40 POUND BAGS OF UNION
CARBIDE ASBESTOS, WEIGHING OUT AMOUNTS FROM THEM FOR THEN OTHER PEOPLE TO USE IN
OTHER PARTS OF THE PLANT. SO HE WAS THE ONE, THERE'S CERTAINLY THE JURY COULD
INFER HE WAS THE ONE HANDLING THE BAGS. JUSTICE PATTERSON: DID HE
HANDLE PALLETS. MS. LONG: THE PROOFS WERE THAT BECAUSE HE WORKED
WITH THE SMALLER BAGS, SO WHAT MR. DOVER SAID WAS THE PALLETS WOULD BE PICKED UP
BY FORKLIFT AND MOVED. JUSTICE PATTERSON: RIGHT.
MS. LONG: BUT THOSE PALLETS WERE -- HE SAID THE SMALLER BAGS, THE ONES THEY COULD
CAR, THE 10 AND 40 POUND BAGS, THEY WOULD JUST GRAB BAGS AND CARRY THEM IN, BUT
THOSE WOULD COME OUT OF THE PALLETS BUT THE PALLETS THEMSELVES WITH THE BIG BAGS
WOULD BE MOVED BY FORKLIFTS BUT CERTAINLY HE WAS IN THE WAREHOUSE GOING TO GET
THE BAGS AND WE HAD EVIDENCE FROM UNION CARBIDE THAT THEY SHIPPED THE AS
BESTOS IN SHRINK WRAPPED PALLETS SO THERE WAS EVIDENCE THAT HE WOULD HAVE BEEN IN
CONTACT WITH THOSE PALLETS GOING INTO THE WAREHOUSE AND GETTING THE BAGS
FROM THERE. JUSTICE PATTERSON: WERE THERE MSDS'S POSTED
IN THE PLANT. MS. LONG: MR. DOVER WAS ASKED -- I DON'T KNOW
IF WAS SPECIFICALLY ASKED IF HE SAW THE MSDS, HE WAS ASKED IF HE SAW ANYTHING POSTED
AND I THINK HE SAID HE DID NOT. JUSTICE PATTERSON: AND DID YOU
HAVE ANY EVIDENCE FROM THE EMPLOYER AS TO WHAT THEIR PRACTICES WERE WITH
REGARD TO MSDS. MS. LONG: NO, WE HAD SOME EVIDENCE THAT THEY
DID DO AIR SAMPLING, THAT WAS IN DOCUMENTS SHOWING THE AIR SAMPLING FOR ASBESTOS
WAS DONE, THERE WAS EVIDENCE FROM MR. DOVER THAT WHEN HE REQUESTED A
RESPIRATOR THE EMPLOYER PROVIDED ONE AND HE ALSO INDICATED THAT THEY PROVIDED
VENTILATION, BUT HE DIDN'T RECALL SEEING ANY POSTERS OR THINGS OF THAT NATURE ON
THE WALLS. JUSTICE ALBIN: HOW ABOUT CLOTHING, WHAT DID
THEY DO WITH RESPECT TO HIS CLOTHING. MS. LONG: MR. DOVER TESTIFIED
THAT THEY WERE GIVEN PROTECTIVE CLOTHING OR SOMETHING TO WEAR OVER THEIR
STREET CLOTHES, SO THAT THEY WOULD PUT IT ON WHEN THEY GOT THERE, TAKE IT OFF BEFORE
THEY LEFT. THEY HAD BEGUN TO DISCUSS THE POLICY CONSIDERATIONS,
IN ADDITION TO RISK SPREADING, THE RULE OF THE PANEL HAS ADOPTED WILL DECREASE
PRODUCT SAFETY WHICH IS ANOTHER GOAL OF OUR PRODUCTS LIABILITY, IN WAIL LYNN
THIS COURT RECENTLY SAID THAT THE RISK INHERENT IN A PRODUCT CONTAINING ASBESTOS
COMPONENTS CAN BE REDUCED TO THE GREATEST EXTENT POSSIBLE WITHOUT HINDERING ITS
UTILITY WITH ATTACHMENT OF THE PROPER WARNING. AND I THINK IT'S IMPORTANT
TO REMEMBER THAT ATTACHING A WARNING TO A PRODUCT IMENT POSSESS NO HARDSHIP ON A
MANUFACTURER, IT IS THE EASIEST THING IN THE WORLD FOR THEM TO DO TO MAKE
A PRODUCT SAFER. FINALLY. THE COURT: THE COURT:
I LIKE THAT FIRST WORD, THAT WAS TAKING US WHERE HE WANTED TO GO BECAUSE I WANTED
YOU TO DISCUSS MEDICAL CAUSATION. MS. LONG: I THINK I CAN
ACTUALLY TURN TO YOUR KNOWLEDGE, YOUR HONOR, ALL OF THIS IS IN OUR PAPERS
AND THE PAPERS TO THE APPELLATE DIVISION SO I DON'T WANT TO SET US BACK ANY FURTHER
AND I'LL TURN TO THE SECOND ISSUE OF THE TRIAL COURT'S JURY INSTRUCTION ON MEDICAL
APPROXIMATE MILLION R ADMIT CAUSATION. THE INN INSTRUCTION GIVEN BY THE
TRIAL COURT WAS CONSISTENT WITH THE PRACTICE IN ALL MESOTHELIOMA CASES IN NEW
JERSEY, THE SCIENTIFIC PROOFS AT TRIAL AS WELL AS THE SPLIFT DICTATES OF
AT LEAST ONE APPELLATE DIVISION PANEL, IT IS ENTIRELY PROPER AND CERTAINLY NOT
ERROR. JUSTICE PATTERSON: LET ME JUST ASK YOU JUST AS A GENERAL
MATTER ARE YOU SAYING THAT THE SHUL TIS CHARGE HAS NEVER BEEN GIVEN IN NEW JERSEY
ON MESOTHELIOMA CASES. MS. LONG: AS FAR AS I'M AWARE, YOUR HONOR,
UNION CARBIDE HAS NOT POINTED TO ANY INSTANCE AND IN MY EXPERIENCE IT HAS
NOT BEEN GIVEN AND I KNOW THAT THE M C L ASBESTOS JUDGE HERE, SHE SAID IN THE CHARGE
CONFERENCE THAT SHE HAS NEVER GIVEN THE SHUL TIS LANGUAGE IN A MESOTHELIOMA
TRIAL. JUSTICE PATTERSON: IS THERE A PUBLISHED APPELLATE
DIVISION CASE THAT PROVIDES EXCEPTION FROM THE SHOLTIS CHARGE FOR MESOTHELIOMA.
MS. LONG: I DON'T THINK THERE'S ANY CASE THAT TALKS ABOUT
SHOLTIS AS A JURY CHARGE, YOUR HONOR. JUSTICE PATTERSON: NO, BUT
SHOLTIS IS ESSENTIALLY DEFINING WHAT THE APPROXIMATE CAUSE DETERMINATION
IS FOR A WORK PLACE EXPOSURE, WOULD YOU AGREE WITH ME? MS.
LONG: IT DOES PROVIDE A FRAMEWORK FOR THE COURTS TO ANALYZE WHETHER AN EXPOSURE RISES
TO A LEVEL THAT IT SHOULD BE ALLUDE TOGETHER TO A JURY OR WHETHER THE JURY
COULD REASONABLY FIND, THAT IS THE STANDARD, IT HAS BEEN APPLIED BY COURTS IN ME
SOTHELIOMA CASES, BUT WHEN IT HAS BEEN DONE SO IT HAS BEEN DONE WITH THE
WRECK NICHL OF THE NATURE OF MESOTHELIOMA BEEN A THE EASE WITH WHICH IT CAN BE
CONTRACTED, IF THERE IS EVIDENCE THAT ONE OR A DE MINIMUS NUMBER OF FIBERS CAN
CAUSE MEES THEME YOEL MA, THE JURY COULD CONCLUDE THAT THE FIBERS WERE A
SUBSTANTIAL FACTOR IN CAUSING PLAINTIFF'S INJURY. JUSTICE
PATTERSON: LET ME JUST ASK, DOES SHOLTIS APPLY TO ASBESTOS MESOTHELIOMA CASES IN
NEW JERSEY, AND I SAY SHOLTIS -- MS. LONG: AS MODIFIED BY
KURAK, IT APPLIES BIAS MODIFIED BY KURAK. JUSTICE ALBIN:
WE MENTIONED IT IN WELL LANE, SO WHAT I'M TRYING TO UNDERSTAND AS I'M LOOKING
OVER THE CASES AND READING THE BRIEFS IS WHETHER OR NOT SHOLTIS IS EVEN
CURRENTLY R CURRENT WITH CURRENT SCIENCE OF THE AND THE REASON WHY I'M SAYING THAT,
I DON'T HAVE THE LANGUAGE OF SHOLTIS BEFORE ME RIGHT NOW BUT IT DEALS WITH
EXPOSURE BASED ON FREQUENCY AND PROXIMITY, AND THEN YOU'RE SAYING, AND THERE'S
SCIENCE BEHIND THIS, THAT EVEN A SMALL AMOUNT OF EXPOSURE CAN RESULT IN
MESOTHELIOMA. NOW, CLEARLY THE SUBSTANTIAL FACTOR TEST WHICH WAS WHAT WAS GIVEN
IN THIS CASE, IS GOING TO COVER THAT, EVEN A SMALL EXPOSURE, BUT EVEN THOUGH WE
USED IT IN WE'LL LYNN I'M TRYING TO DETERMINE WHETHER OR NOT SHOLTIS IS
AN APPROPRIATE STANDARD GIVEN WHAT WE KNOW ABOUT MESOTHELIOMA AND HOW ITS CONTRACTED
TODAY. WHY DON'T YOU JUST EXPLAIN THAT, IF YOU CAN. MS. LONG:
IT IS A VERY AWKWARD STANDARD FOR MESOTHELIOMA BECAUSE OF WHAT YOU'VE
ARTICULATED, YOUR HONOR. AND I THINK THAT'S WHY THE COURT HAD TO MODIFY IT
IN KURAK, BECAUSE THERE WAS SOME UNPUBLISHED -- JUSTICE FERNANDEZ-VINA:
HAS SHOLTIS BEEN MODIFIED BY OUR COURTS, OR REVERSED, HAS SHOLTIS BEEN
DISAPPROVED OF IN OUR COURTS OR MODIFIED IN ANY WAY, I WAS JUST LOOKING AT THE
TRANSCRIPTS, DID YOU HAVE EXPERTS TESTIFYING THAT THE SCIENCE, THE CAUSATION
HAS CHANGED, BECAUSE I DIDN'T SEE THAT. DID I MISS THAT, DID YOU HAVE EXPERTS
TO SUGGEST THAT THE SCIENCES HAS CHANGED AND THAT'S WHY SHOLTIS IS NO LONGER
APPLICABLE, PERHAPS I MISSED IT. MS. LONG: WELL, IT'S A DIFFERENT
DISEASE, YOUR HONOR. JUSTICE FERNANDEZ-VINA: I KNOW WHAT
MEZ IS AND I KNOW ALL THE EFFECTS OF ASBESTOS, HOWEVER, I DIDN'T SEE
ANYTHING IN THE TESTIMONY THAT WOULD SUGGEST TO THE JUDGE THAT HE OR SHE COULD IGNORE
SHOL TILS, FROM YOUR EXPERTS. MS. LONG: SURE, WELL OUR EXPERT
IN OCCUPATIONAL MEDICINE DID TESTIFY THAT PEOPLE WITH VERY SHORT EXPOSURES
TO ASBESTOS CAN DEVELOP MESOTHELIOMA AND AGAIN THAT WAS RECOGNIZED BY THE APPELLATE
DIVISION IN THE KURAK CASE WHICH I DO THINK MODIFIES SHOLTIS TO ACCOUNT FOR
THE DIFFERENCE BETWEEN ASBESTOSIS, WHERE FREQUENCY, REGULARITY, ARE RELEVANT, AND
MESOTHELIOMA WHERE AS THE COURT NOTED, IF A FEW FIBERS CAN CAUSE IT, THEN
THE JURY CAN FIND THAT THAT WAS THE CAUSE. SO KURAK IS AN IMPORTANT MODIFICATION
OF SHOLTIS. JUSTICE PATTERSON: FREQUENCY AND REGULARITY,
YOU CAN HAVE A DIFFERENT GRADATIONS OF FREQUENCY, REGULARITY AND PROXIMITY THAT CAN
MEET THE SUBSTANTIAL FACTOR TEST, BUT TELL ME IF I'M WRONG, I THOUGHT THAT
OUR LAW WAS AFTER SHOLTIS AND JAMES THAT IN ALL OCCUPATIONAL EXPOSURE CASES, THE
JURY SIMPLY WAS NOT THROWN IN THERE WITH SUBSTANTIAL FACT BUT WAS GUIDED TO
THINK ABOUT THE FREQUENCY AND THE REGULARITY OF EXPOSURE AND THE PROXIMITY OF THE
PERSON TO THE EXPOSURE BASED ON THE RECOGNITION IN THE SHOLTIS BY THE APPELLATE
DIVISION AND ULTIMATELY THIS COURT IN JAMES, THAT THOSE FACTORS IN A WORK
PLACE SETTING MATTER. NOW, THEY MAY MATTER IN A DIFFERENT WAY IN DIFFERENT WORK
PLACES, BUT THEY STILL ARE RELEVANT, AND THAT'S WHY I WAS REALLY SURPRISED TO
SEE AN ARGUMENT THAT SHOLTIS DOESN'T APPLY IF THE DISEASE IS MESOTHELIOMA
WHEN THAT'S SUCH A -- IT'S A VERY COMMON TRAGIC DISEASE, IT'S VERY COMMON IN THESE
CASES AND THE IDEA THAT SHOLTIS GOES AWAY BECAUSE OF THIS MESOTHELIOMA WAS
JUST NEWS TO ME AND OBVIOUSLY YOUR ADVERSARY SAYS IT DOESN'T AND THE APPELLATE
DIVISION SAYS IT DOESN'T. MS. LONG: WELL IT WAS IMPLIED AS
A SUMMARY JUDGMENT STANDARD IN THIS CASE BY THE APPELLATE DIVISION IN 2017,
I JUST THERE IS NO WAY TO TAKE THAT STANDARD AND TRANSLATE IT TO JURY INSTRUCTIONS
IN A WAY THAT WILL BE MEANINGFUL AND NOT INVITE ERROR. JUSTICE
PATTERSON: WHEN THE APPELLATE DIVISION APPLIED SHOLTIS TO YOUR CASE, DID YOU SAY
WAIT A MINUTE, SHOLTIS IS OUT OF THIS? MS. LONG: WE ARGUED
THAT IT WAS MODIFIED BY KURAK BECAUSE OF THE MEDS MESOTHELIOMA CASE. BUT WHEN
YOU GET TO THE QUESTION OF CRAFTING JURY INSTRUCTIONS AND WHETHER THE TRIAL
COURT ERRED IN GIVING THE MODEL JURY INSTRUCTION INSTEAD OF THE FREQUENCY,
REGULARITY, PROXIMITY, IT'S A DIFFERENT QUESTION. AND WHEN WE'RE TALKING
ABOUT MESOTHELIOMA THAT CAN BE CAUSED BY ONLY A FEW FIBERS, SHORT MINIMAL EXPOSURES,
HOW CAN KORTS DO THIS ANALYSIS, ANY OPINION YOU READ THAT'S DOING THIS
ANALYSIS CITES TO VARIOUS OPINIONS OF THE APPELLATE DIVISION, THIS COURT, MRIT A
MRIT COURTS FROM OTHER JURISDICTIONS WHERE THEY LOOK AT VERY FACTUAL
DETERMINATION, THIS PERSON WORKED HERE FOR THIS AMOUNT OF TIME, HE WAS IN THIS ROOM
FOR THIS AMOUNT OF TIME, AND IS IT NUFR EXPOSURE, AND THAT TYPE OF ANALYSIS DOES
NOT LEND ITSELF TO INSTRUCTIONS AND DEFINITIONS THAT CAN BE INCLUDED IN
JURY INSTRUCTIONS. JUSTICE PATTERSON: WHY IS THAT? BECAUSE YOUR
EXPERT I'M SURE WAS VERY EFFECTIVE SAID THAT ONLY A MINIMAL AMOUNT OF EXPOSURE
IN THIS PARTICULAR SETTING WOULD BE APPROPRIATE AND OBVIOUSLY THERE'S DONE FLIKTS
OF EXPERTS IN THIS TYPE OF CASE, RIGHT, PRESUMABLY AN EXPERT ON THE OTHER
SIDE WOULD SAY IT TAKES LONGER AND CONSISTENT AND SO FORTH, WHAT IS SO WRONG
WITH A JURY BEING ASKED TO CONSIDER THOSE 3 FEATURES OF THE EXPOSURE WHICH
SHOLTIS AND JAMES SAID WERE THE GUIDING LAW WHEN THE JURY IS ASKED TO DEAL WITH
SCOMPLEKS QUESTIONS OF MEDICAL CAUSATION ALL THE TIME. WHY SHOULD THE JURY
JUST HAVE SUBSTANTIAL FACTOR THROWN AT IT WHEN OUR LAW IS THESE 3 CONSIDERATIONS
HAVE TO FRAME THE ISSUE? MS. LONG: WELL, BECAUSE YOUR HONOR, I DON'T
KNOW HOW A JURY -- HOW YOU COULD CRAFT INSTRUCTIONS, BECAUSE JUST SAYING
TO A JURY YOU HAVE TO FIND THAT THE PLAINTIFF WHO WAS EXPOSED WITH SUFFICIENT
REGULARITY, PROXIMITY AND FREQUENCY, HOW DOES A JURY KNOW KWA SUFFICIENT
REGULARITY IS. IF THE COURT JUST LEAVES IT THERE -- JUSTICE
PATTERSON: YOUR EXPERTS, YOUR EXPERTS INFORM THE JURY. MS.
LONG: SURE, BUT IF YOU'RE GOING TO GIVE THE SHOLTIS LANGUAGE THEN I THINK YOU AT THE
VERY LEAST HAVE TO INCLUDE THE LANGUAGE FROM KURAK WHICH SAYS IF THE EVIDENCE
PROVES THAT ONE FIBER CAN CAUSE THE DISEASE, THEN YOU MAY FIND CAUSATION, SO IF
YOU'RE GOING TO INCLUDE CASE LAW AND LANGUAGE FROM ONE CASE AND THAT CASE
HAS BEEN MODIFIED IN THE INSTANCE OF MESOTHELIOMA BY ANOTHER CASE, THEN YOU CAN'T
INCLUDE ONLY THE FIRST CASE LANGUAGE, YOU HAVE TO INCLUDE LANGUAGE FROM KURAK
AND OTHER CASES. JUSTICE ALBIN: TELL ME IF I'M MISTAKEN, IN
THE CHARGE TO THE JURY THE JUDGE WAS VERY CAREFUL TO INSURE THAT THE JURY
KNEW THAT UNLESS THE EXPOSURE WAS A SUBSTANTIAL FACTOR, THAT WAS THE END OF THE
STORY, AND IT GAVE LANGUAGE ABOUT LIKE WHAT WOULDN'T BE A SUBSTANTIAL FACTOR,
SO LIKE MINIMAL OR WHATEVER. I DON'T HAVE A CHARGE DIRECTLY IN FRONT OF ME, BUT
IT ACTUALLY WHEN YOU LOOK AT THE CHARGE, IT DOESN'T LOOK ALL THAT MUCH
DIFFERENT FROM SHOLTIS, QUITE FRANKLY, PARTS OF IT. AM I OFF? I DON'T KNOW IF
YOU HAVE IT IN FRONT OF YOU. MS. LONG: NO, THAT'S RIGHT,
YOUR HONOR, THE JURY IN ADDITION TO THE MODEL CIVIL JURY CHARGE 6.12 THE COURT
INCLUDED AT UNION CARBIDE'S REQUEST LANGUAGE FROM KURAK THAT SAID LIABILITY SHOULD
NOT ATTACHED BASED ON CASUAL OR MINIMAL CONTACT WITH THE PRODUCT, LIABILITY
SHOULD NOT BE IMPOSED ON MERE GUESS WORK. SO THE COURT DID TAKE ADDITIONAL LANGUAGE
TO LET THE JURY KNOW THAT IN ORDER TO BE A SUBSTANTIAL FACTOR IT CANNOT BE CASUAL
OR MINIMAL CONTACT AND THAT THAT THE LIABILITY CANNOT BE IMPOSED ON MERE
GUESS WORK. SO THERE WAS ADDITIONAL LANGUAGE TO PROTECT UNION CARBIDE FROM A JURY
ASSIGNING LIABILITY BASED ON CASUAL OR MINIMAL CONDUCT TO THEIR ASBESTOS.
AND I NOTE THAT IN THIS CASE TO THE EXTENTS THAT THE COURT IS LOOKING AT THE SPECIFICS
OF THIS CASE AND THE CHARGE IN THIS CASE, WE DON'T THINK IT'S APPROPRIATE
FOR A JURY CHARGE FOR MESOTHELIOMA AT ALL BUT IN THIS CASE THIS WAS NOT A CLOSE
CASE ON THE SHOLTIS FACTORS, THIS IS NOT AN INSTANT, EVEN IN 2017 WHEN THE
APPELLATE DIVISION ADDRESSED THE GRAVENT OF SUMMARY JUDGMENT AND REVERSED IT, THE
APPELLATE DIVISION COMPARED MR. EDENFIELD'S EXPOSURES TO WHAT WAS PRESENT
IN KURAK AND THE GOSS CASE WHICH WAS CITED BY UNION CARBIDE AND NOTED THAT HERE,
THE PLAINTIFF DECEDENT REGULARLY SCOOPED, WEIGHED AND MIXED INGREDIENTS
INCLUDING ASBESTOS. JUSTICE PATTERSON: SO YOU'RE SAYING FACTUALLY
YOU WOULD WITHIN UNDER SHOLTIS IF THE JURY WAS INSTRUCTED A PLAINTIFF MAY DEMONSTRATE
MEDICAL CAUSATION BY ESTABLISHING THE DEFENDANT'S FREEKTD AND APPROXIMATE
EXPOSURE TO DEFENDANT'S PRODUCTS, YOU'RE SAYING YOU WOULD WIN THAT.
MS. LONG: I'M SAYING EVEN IF THERE WAS ERROR IN THE CHARGE IT WAS HARMLESS IN THIS
CASE BECAUSE OF THE FACTS OF THE CASE, BUT AGAIN I DON'T THINK THE JURY CHARGE
IS APPROPRIATE IN THE FIRST CASE. JUSTICE ALBIN: IT SEEMS TO ME
THAT SHOLTIS, ONE OF ITS PURPOSES WAS TO INSURE THAT CASUAL MINIMAL CONTACT
DID NOT RESULT IN A FINDING OF PROXIMATE CAUSE. MS. LONG: KRKTS.
JUSTICE PATTERSON: BUT YOU'RE SAYING THAT CASUAL MINIMAL
CONTACT COULD SATISFY THE PROXIMATE CAUSE. MS. LONG: WELL
AGAIN IN KURAK THE COURT SAID DE MINIMUS EXPOSURE CAN CAUSE MESOTHELIOMA. NOW,
THERE'S A DIFFERENCE BETWEEN DIMINUMOUS EXPOSURE AND CASUAL CONTACT BUT
AGAIN THAT LANGUAGE WAS IN THERE FOR THE BEB FIT OF UNION CARBIDE AND SO THEY DID HAVE
LANGUAGE THAT LET THE JURY KNOW THAT THERE HAD TO BE A CERTAIN LEVEL BEYOND
CASUAL MINIMAL CONTACT IN ORDER FOR THEM TO FIND PROXIMATE CAUSE, BUT THE SUFFICIENCY
REGULARITY PROXIMITY WOULD NOT HAVE ADDED ANYTHING TO THE CHARGE, IT ONLY
WOULD HAVE CONFUSED THE JURY. JUSTICE PATTERSON: ARE JURY'S CHARGED
AS TO SHOLTIS IN A NON ASBESTOS, NON MESOTHELIOMA CASES THAT DON'T INVOLVE
ASBESTOS. MS. LONG: IN DOING THE RESEARCH FOR THIS CASE,
YOUR HONOR, I FOUND NO CASES WHERE THE SHOLTIS LANGUAGE WAS USED AS A JURY CHARGE
AND THEN HAD BECOME AN ISSUE IN THE CASE, SO I CAN'T PROFESS FAMILIARITY WITH
THE JURY CHARGES IN NON ASBESTOS TOXIC TORT CASES IN NEW JERSEY, BUT IT CERTAINLY
HAS NOT RAISED TO EITHER A PUBLISHED OPINION FROM A TRIAL COURT OR THE APPELLATE
LEVEL, AND UNION CARBIDE. JUSTICE PATTERSON:
JUSTICE PATTERSON: SO THE WHOLE THING IS BEING USED AS A SUMMARY JUDGMENT STANDARD.
MS. LONG: IT'S BEING USED AS A SUMMARY JUDGMENT STANDARD AND A
STANDARD TO REVIEW VERDICTS TO SEE IF THEY ARE AGAINST THE WEIGHT OF THE EVIDENCE,
SO IT'S USED BOTH IN THE BEGINNING AND THE END STAGE, YOU KNOW, TO REVIEW
VERDICTS, WHICH PROTECTS DEFENDANTS FROM PREJUDICE IF THEY FEEM THAT A JURY -- THAT
THE EVIDENCE DOESN'T RISE TO THE LEVEL OF SIGNIFICANT FREQUENCY, PROXIMITY,
REGULARITY, BASED ON COMPARING THE EXPOSURE IN THE CASE TO PRIOR CASES, THEY CANNOT
LET IT GO TO THE JURY. BUT AGAIN I HAVE NOT SEEN ANY CASE WHERE IT DISCUSSED
THE SHOLTIS LANGUAGE WHICH WAS ADOPTED IN 1989 BEING USED IN A JURY CHARGE, AND
OF COURSE THERE ARE METHODS FOR CHANGING AND ADOPTING NEW JURY CHARGES. AGAIN,
SHOLTIS HAS BEEN IN FORCE SINCE 1993 AND THE PROXIMATE CAUSE JURY CHARGE NEEDED
TO BE AMENDED IN TOXIC COURTS TO INCLUDE THAT LANGUAGE, THERE IS A PROCESS
FOR DOING THAT AND THAT HAS NOT BEEN DONE, AND AT THE TIME THAT THIS TRIAL JUDGE
GAVE THIS JURY INSTRUCTION SHE FOLLOWED THE MODEL JURY CHARGES, SHE FOLLOWED
THE PANEL OF RICHTER IN 1995 WHICH SAID THAT IT WOULD BE ERROR IN A MZ CASE TO
GIVE THE FREQUENCY REGULARITY PROXIMITY LANGUAGE. JUSTICE
PATTERSON: SO THE CASES THAT ARE CITED BY THE DEFENDANT AGAIN IN MESOTHELIOMA CASES
IN WHICH SHOLTIS IS BEING USED AS THE STANDARD, RIGHT? THERE ARE A NUMBER
OF APPELLATE DIVISION CASES, NOTHING FROM THIS COURT. MS. LONG:
CORRECT, THERE WOULD BE CASES WHERE IT'S BEING USED TO EITHER JUDGE THE SUMMARY
JUDGMENT GRANTS OR DENIAL OR TO REVIEW A VERDICT, AND AGAIN ANYTHING DECIDED
SINCE KURAK WHICH WAS DECIDED JUST THE YEAR AFTER SHOLTIS, GENERALLY ANY
MESOTHELIOMA CASE THAT DISCUSSES SHOLTIS ALSO DISCUSSES KURAK BECAUSE OF
ITS RECOGNITION THAT MESOTHELIOMA IS DIFFERENT THAN ASBESTOSIS OR LUNG CANCER.
CHIEF JUSTICE RABNER: WE'RE COMING UP ON AN HOUR, I WANDERED
TO GIVE YOU A FEW MINUTES IF YOU WANTED TO WRAP UP OR ANYBODY ELSE HAS ANY QUESTIONS.
JUSTICE PATTERSON: MY DOING, CHIEF. CHIEF JUSTICE
RABNER: ALL GOOD. MS. LONG: SURE. JUST ON A FINAL POINT ON THE
MEDICAL CAUSATION CHARGE. THIS COURT HAS HELD THAT IT IS DIFFICULT TO FINDS THAT
A CHARGE THAT FOLLOWS THE MODEL CHARGE CLOSELY CONSTITUTES PLAIN ERROR AND IT HAS
DISCUSSED THAT THE PROCESS THAT LEADS TO THE MODEL JURY CHARGES IN THOROUGH
AND COMPREHENSIVE AND THAT THE CHARGES ARE REVIEWED AND REFINED BY EXPERIENCED
JURISTS AND LAWYERS. AND THAT COMES FROM STATE V. R B AND THE QUO ABOUT
IT BEING THAT THE CHARGE TO FOLLOW CLOSELY THAT IT CONSTITUTES PLAIN ERROR IS FROM
THE MOW GUL CASE. THE PURPOSE OF THESE MODEL JURY CHARGES IS TO PROVIDE
TRIAL COURTS WITH GUY DANCES AND CONSISTENCY WHEN INSTRUCTING JURY'S, AND THE TRIAL
COURT HERE FOLLOWED HER PRACTICE SINCE SHE'S BEEN THE M C L ASBESTOS CASE,
HER EXPERIENCE OVERSEEING SEVERAL OF THESE TRIALS, THAT THIS LANGUAGE IS NOT NECESSARY
AND WOULD CONFUSE THE JURY AND IN A PRIOR APPELLATE DIVISION DECISION GOING
BACK TO 1993 THAT SHE WROTE, OR 1995, THAT HER INSTRUCTION WAS IN ACCORDANCE WITH.
JUSTICE PATTERSON: THIS IS NOT A PLAIN ERROR CASE, IS THERE?
I THOUGHT THERE WAS QUITE A BIT IN THE TRANSCRIPT WHERE THE DEFENDANT WAS DISPUTING
THE JURY CHARGE. MS. LONG: THEY DID. JUSTICE
PATTERSON: IT'S NOT PLAIN ERROR, PLAIN ERROR WOULD BE IF THE DEFENDANT DIDN'T
OBJECT, IF THE DEFENDANT DIDN'T SEEK ANOTHER JURY TRIAL, ET CETERA.
MS. LONG: NO, CORRECT, SHE HAD TO GIVE A CORRECT STATEMENT OF THE LAW.
THE COURT: JUSTICE PATTERSON: JUST TO BE CLEAR, THE
STANDARDS OF REVIEW ON THIS ISSUE IS NOT PLAIN ERROR, IS IT. MS.
LONG: NO, NOT TO THE EXTENT THAT UNION CARBIDE DID CHALLENGE THE INSTRUCTION AT THE
TIME, THEY PRESERVED THE ISSUE. JUSTICE PATTERSON: OKAY, THANK YOU.
MS. LONG: BUT I WOULD STATE THAT THE JUDGE FOLLOWED THE LAW,
SHE FOLLOWED THE PRECEDENT IN THE -- IN MESOTHELIOMA TRIALS THAT IN HER CONSIDERED
JUDGEMENT AND THE JUDGEMENT OF PRIOR ASBESTOS M C L JUDGES THAT THIS
INSTRUCTION WAS UNNECESSARY AND WOULD HAVE CONFUSED THE JURY AND THE COURT SHOULD
FIND THAT SHE WAS CORRECT IN GIVING THAT INSTRUCTION AND REVERSE THE APPELLATE
DIVISION VACATION OF THE VERDICT. THANK YOU. CHIEF JUSTICE
RABNER: THANK YOU MISS LONG. MR. PLACITELLA. JARED M.
PLACITELLA: GOOD AFTERNOON JUSTICES. THANK YOU FOR SPIRITING ME TO APPEAR AND
ARGUE AS A FRIEND OF THE COURT. FIRST, WHY A MANUFACTURER CANNOT
LIE ON AN EMPLOYER TO ACT AS AN I'D FER IMMEDIATE YEAH AND SECOND WHY THE
SHULT THIS FREK QUEEN AND REGULARITY AND PROXIMITY TEST BY THE TRIAL COURT TO
DETERMINE WHETHER THERE IS SUFFICIENT EVIDENCE FOR THE JURY TO CONSIDER
MEDICAL CAUSATION RATHER THAN AN INSTRUCTION TO THE JURY TO EVALUATE PROXIMATE CAUSE.
THERE ARE ALSO THREE BASIC RULES THAT APPLY TO STRICT PRODUCTS
LIABILITY FOR FAILURE TO WARN. THE FIRST IF A PRODUCT IS NOT REASONABLY SAFE FOR
ITS INTENDED PURPOSE THEN THE MANUFACTURER MUST WARN OF THE PRODUCT'S DANGERS
AND INFORM HOW TO USE THE PRODUCT SAFELY. SECOND, FOR THAT WARNING
TO BE ADEQUATE IT MUST BE COMMUNICATED BY THE MANUFACTURER TO THE END USER
AND THIRD IF THE MANUFACTURER FAILS TO COMMUNICATE THE PRODUCT DAPGS AND SAFE
USE TO THE END USER THAN ITS PRODUCT IS DEFECTIVE. THOSE PRINCIPLES APPLY WHETHER
THE MANUFACTURER CHOOSES TO SELL ITS PRODUCT TO BE USED BY CONSUMERS OR
THE WORKPLACE. INDEED DECADES OF THIS COURT'S PRECEDENCE HAS ESTABLISHED THAT
IF A MANUFACTURER CHOOSES TO SELL A DANGEROUS PRODUCT TO BE USED IN THE
WORKPLACE THEN IT HAS A NON-DELLA ABOUT DOUBT TO WARN THE END USER EMPLOYEE AND
BY DEFINITION, NONE DELLA ABOUT MEANS AN OBLIGATION THAT CANNOT BE HANDED
OVER TO ANOTHER PERSON TO BE PERFORMED. WE SUBMIT JUSTICES THAT THE
APPELLATE DIVISION HERE ERRED BECAUSE IT DETERMINED THAT THE JURY SHOULD
HAVE CONSIDERED UNION CARBIDE'S COMMUNICATIONS WITH THE PLAINTIFF'S EMPLOYER, EVEN
THOUGH THE JURY FOUND THAT THE WARNING IT DID COMMUNICATE TO THE PLAINTIFF
DID NOT ADEQUATELY INFORMED HIM OF THE DANGERS AND SAFE USE OF THE PRODUCT. UNION
CARBIDE'S COMMUNICATIONS WITH THE EMPLOYER ARE IRRELEVANT TO WHETHER THE
PRODUCT AT ISSUE, BAGS OF RAW ASBESTOS WERE NOT REASONABLY SAFE AND THEY ARE IMMATERIAL
TO WHETHER UNION CARBIDE FULFILLED ITS DUTY TO WARN BECAUSE THOSE
COMMUNICATIONS WERE NOT PROVIDED TO THE END USER. JUSTICE PATTERSON:
HOW CAN YOU SAY IT'S IRRELEVANT TO WHAT INFORMATION WAS GIVEN TO THE EMPLOYER
WERE THERE'S COFFMAN AND NOW THERE'S A RESTATEMENT WHICH ALL MAKE THE INFORMATION
GIVEN TO THE EMPLOYER RELEVANT. NOW WHERE IT FITS INTO THE TOTAL PICTURE
HERE IS A SEPARATE QUESTION. BUT YOU'RE MAKING I THINK YOU'RE EVEN GOING BEYOND
WHAT YOUR CO-COUNSEL IS SAYING BY SAYING THAT THE EMPLOYER, WARNINGS -- THAT
THE MANUFACTURER'S WARNINGS TO THE EMPLOYER ARE IRRELEVANT. JARED M.
PLACITELLA: YOUR HONOR THEY'RE IRRELEVANT TO THE EXTENT THAT THEY DO NOT REACH
THE END USER. SO WHETHER COMMUNICATIONS FROM THE MANUFACTURER TO THE EMPLOYER
ARE ADMISSIBLE OR IRRELEVANT DEPENDS UPON ANY GIVEN CASE. JUSTICE
PATTERSON: THAT SEEMS TO BE WHAT THE APPELLATE DIVISION IS SAYING. WE DON'T KNOW
IN CASES ESPECIALLY WHERE SADLY THE PERSON IS DECEASED OR THE TIME PERIOD
IS MANY DECADES AGO WE MAY NOT KNOW ALL THE FACT. BUT OUR LAW VERY SOLIDLY SAYS
THAT THIS IS RELEVANT. THAT THESE WARNINGS ARE POTENTIALLY RELEVANT. IF
YOU FIND OUT IN A PARTICULAR FACTS THEY DIDN'T REALLY SEND THEM OR WHATEVER I'M
NOT SUGGESTING IT WOULD BE THERE. BUT THAT ISSUE IS RELEVANT. IT'S IN
COFFMAN, IT'S IN THEATER, THERE'S JUST BEEN CONSISTENT LAW ON THAT AND IT SEEMS
TO ME THE PURPOSE OF THAT IS TO IN SENSE THINK ADVISE MANUFACTURERS TO GO
THROUGH TWO TRACKS, YOU KNOW ONE, THE PACKAGE WARNINGS AND THE OTHER ONE THROUGH THE
EMPLOYER TO SEE IF IT'S MORE DETAILED INFORMATION TO BE PROVIDED. SO YOU DO
NEED TO TELL US WE SHOULD SAY MANUFACTURER JUST SKIP IT. IT'S IRRELEVANT WHAT YOU
TELL THE EMPLOYER. JARED M. PLACITELLA: NOT AT ALL YOUR HONOR.
WHAT HAPPENED IN THIS CASE WAS THE JURY FOUND THAT THE WARNING THAT WAS GIVEN TO THE
WORKER WAS INADEQUATE AND THAT DID NOT ADEQUATELY INFORM HIM OF THE DANGERS
OF THE PRODUCT AND ITS SAFE USE. THE MANUFACTURER CANNOT BE ABSOLVED OF LIABILITY
BECAUSE IT TOOK SOME STEPS TO WARN THE EMPLOYER. NOW, THE DUTY TO WARN
THE EMPLOYER IS IN SERVICE OF THE DUTY TO WARN THE EMPLOYEE. IF THE MANUFACTURER
CANNOT ASSURE THAT THE DANGERS OF ITS PRODUCT ARE TRANSMITTED TO THE ONE WHO
IS ACTUALLY USING IT, THEN IT'S NOT RELEVANT TO WHETHER THE PRODUCT ITSELF OR THE
WARNING ON THE PRODUCT IS SUFFICIENT OR ADEQUATE. JUSTICE
PATTERSON: BUT IF YOU'RE SAYING AND UNLESS THE MANUFACTURER IS ESSENTIALLY IN THE
PLANTS AND CAN KNOW, SUBJECTIVELY KNOW THAT THE WARNINGS ARE BEING DELIVERED
IT'S NOT GOING TO HELP IT IN A PRODUCT LIABILITY CASE. IT SEEMS TO ME YOU ARE
DISCOURSE RAVING AND OBVIOUSLY ASBESTOS ARE FROM A TIME MANY MANY YEARS
AGO, BUT IF THAT'S THE STATEMENT OF THE LAW YOU WANT US TO GIVE, I WOULD SUBJECT
THAT THE POLICY CONSIDERATION OF INCENTIVIZING CAREFUL WARNINGS IS NOT
BEING SERVED. JARED M. PLACITELLA: YOUR HONOR, I'M GOING TO
FLIP THAT AROUND. I THINK THE PRINCIPLE THAT WE'RE ADVANCE SG SUPPORTED BY THE
CASE LAW AND WOULD IN SENSE THINK ADVISE GOOD POLICY. AS THIS COURT HAS SAID AT
FIRST AND HAS FOLLOWED WITH MA CHAL CO, STEVENSON, A MANUFACTURER HAS A
DUTY TO EMPLOYEES OF THE PURCHASER TO CORRECT A PRODUCT DEFECT AND MAY NOT RELY
ON THE PURCHASER EMPLOYER IT MAKE THE NECESSARY CORRECTION. AND
THIS COURT SAID IN COFFMAN A MANUFACTURER CANNOT ESCAPE ITS DUTIES TO EMPLOYERS
BY MERELY SENDS AGO WARNING INTLER A NEW SAFETY DEVICE TO BE INSTALLED ON THE
MACHINE. JUSTICE PATTERSON: WE'RE TALKING ABOUT SAFETY DEVICES
RESPECTFULLY I THINK SAFETY DEVICES WERE THE FOCUS OF SO MUCH DEVELOPMENT OF THE
LAW, ESPECIALLY IN THE 1970'S PRESENT A SPECIAL SET OF FACTS WHERE YOU HAVE
EMPLOYERS WHO WERE REMOVING SAFETY DEVICES, A LOT OF CONCERNS HERE MA I THINK WHEN
YOU'RE DEALING WITH AN OCCUPATIONAL, WITH A, WITH AN OCCUPATIONAL DETAIN LIKE
THIS SO SAFETY DEVICE CASES ARE NOT THE MOST RELEVANT. OBVIOUSLY COFFMAN
AND THEER RECOGNIZED THAT INFORMATION PROVIDED TO THE EMPLOYERS IS IMPORTANT.
BUT I JUST REALLY WANT TO REITERATE IF YOU'RE TELLING US THAT IT'S
IRRELEVANT, THAT TO ME IS JUST INCONSISTENT WITH THE WAY THAT ISSUE HAS BEEN HANDLED.
JARED M. PLACITELLA: IT'S ONLY IRRELEVANT IF THE WARNING DOES
NOT REACH THE END USER. FIRST AND FOREMOST THE WORKER NEEDS TO BE WARNED.
MERELY WARNING THE EMPLOYER WITHOUT ANY PROOF OR ASSURANCE BY THE MANUFACTURER
THAT THAT WARNING ACTUALLY REACHES THE EMPLOYEE IS IRRELEVANT. OH THE STEPS THAT
A MANUFACTURER BUST TAKE TO COMMUNICATE THE WARNING TO THE EMPLOYEE WILL BE
COMMENSURATE WITH THE FORESEEABLE RISK AND THE USE OF THE PRODUCT.
JUSTICE PATTERSON: AND THAT'S WHAT THIS JURY INSTRUCTION WAS, RIGHT, IT WAS ABOUT
WHETHER THE MANUFACTURER TOOK REASONABLE STEPS TO ENSURE THAT'S INFORMATION
WENT TO THE EMPLOYEES. JARED M. PLACITELLA: WELL, THE WAY THE
REASONABLENESS IN DISCUSSION WITH THE PETITIONER'S COUNSEL WAS FRAMED, I'M NOT SURE
IS CORRECT. WHETHER A MANUFACTURER'S CONDUCT IS REASONABLE IS IRRELEVANT
WHETHER THE WARNING ADEQUATELY INFORMED THE END USER OF THE DANGEROUS AND UNSAFE
USE. SO THE FOCUS OF STRICT LIABILITY LAW HAS ALWAYS BEEN ON THE SAFETY OF THE
PRODUCT RATHER THAN THE REASONABLENESS OF A MANUFACTURER'S CONDUCT. AND TO THE
EXTENT THAT THAT REASONABLENESS IS TO BE CONSIDERED IN A FAILURE TO WARN CASE,
IT'S TO USE TO ASSESS THE ADEQUACY OF THE WARNING. DOES THE WARNING EFFECTIVELY
COMMUNICATE THE DANGEROUSNESS,. JUSTICE ALBIN: I'M LOOKING
AT THE VERDICT SHEET WHICH SEEMS TO REFLECT OUR CASE LAW. COFFMAN, HAD
THE PLAINTIFF FAILED TO SHOW THAT THE WARNINGS WERE INADEQUATE AND ALSO FAILED
TO SHOW THAT UNION CARBIDE FAILED TO TAKE REASONABLE STEPS, THAT WOULD HAVE BEEN
THE END OF THE GAME. JARED M. PLACITELLA: CORRECT, YOUR HONOR.
JUSTICE ALBIN: BUT EVEN IF THE WARNINGS WERE ADEQUATE, THE
FAILURE TO PROPERLY ADVISE THE, THE FAILURE OF UNION CARBIDE TO TAKE REASONABLE
STEPS TO ENSURE THAT ITS WARNINGS REACHED EDENFIELD THAT WOULD STILL MAKE
POTENTIALLY UNION CARBIDE LIABLE. AND THAT'S PRECISELY WHAT COFFMAN WANTED. THEY
WANTED THE WARNINGS TO GO TO THE EMPLOYEE AND TO THE EMPLOYER. NO SKIPPING.
IF YOU FAIL ON ONE, YOU STILL MAY BE LIABLE. AM I MISTAKEN IN TERMS OF THE WAY
I'M READING COFFMAN AND OUR JURISPRUDENCE. JARED M. PLACITELLA:
YOU'RE NOT MISTAKEN, YOUR HONOR, BECAUSE THE LAW WANTS TO IN SENSE THINK ADVISE
TO JUSTICE PATTERSON'S POINT AS MANY AVENUES OF WARNING THE END USER AS POSSIBLE.
BUT WHEN YOU EVALUATE THE ADEQUACY OF THE WARNING AND WHETHER IT IN FORMS
A PERSON WHO IS HANDLING THE PRODUCTS OF THE RISKS AND DANGERS,.
JUSTICE PATTERSON: WAS IT PLAINTIFF'S BURDEN, WAS IT PLAINTIFF'S BURDEN TO SHOW,
TO PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT THE DEFENDANT DID NOT
USE REASONABLE STEPS? JARED M. PLACITELLA: NO, YOUR HONOR. I
THINK THE, THE BURDEN ON THE PLAINTIFF WOULD BE TO SHOW THAT THE WARNING TO MR. EDENFIELD
WAS, WAS NOT THERE OR INADEQUATE. JUSTICE PATTERSON: SO YOU'RE
SAYING THAT IT'S A TWO-PRONG TEST. THERE'S A PLAINTIFF'S BURDEN ON THE
FIRST PRONG AND IT'S THE DEFENDANT BURDEN ON THE SECOND. JARED M.
PLACITELLA: NO, YOUR HONOR. I THINK THE PLAINTIFF HAS TO SHOW THAT THE WARNING
GOES TO THE EMPLOYER AND THE EMPLOYEE. I DON'T THINK THERE'S A SHIFTING
BURDEN THAT GOES TO THE DEFENDANT. BUT WHAT THE LAW DID NOT CONTEMPLATE IS THAT
AN EMPLOYER'S -- WHAT HAPPENED HERE IN THE APPELLATE DIVISION AND WHY IT'S
TROUBLING AND COULD HAVE A VERY SLIPPERY SLOPE CONSEQUENCES IS THAT IN FINDING
THAT THE JURY, THAT THE WARNING, THE JURY FOUND THAT THE WARNING TO THE
PLAINTIFF WAS INADEQUATE. THE APPELLATE DIVISION SAID THAT DOESN'T MATTER, THE
JURY SHOULD HAVE CONSIDERED COMMUNICATIONS TO UNION CARBIDE WHEN THERE IS
NO PROOF THAT THOSE WARNINGS TO UNION CARBIDE EVER WENT TO THE PLAINTIFF. SO IF
THAT WERE THE CASE AND A MANUFACTURER COULD SUPPLY NO WARNING OR AN INADEQUATE
WARNING TO THE PLAINTIFF AND STILL BE ABSOLVED OF LIABILITY BY COMMUNICATING
WARNINGS ONLY TO THE EMPLOYER, THEN THERE WOULD BE NO ASSURANCE THAT THE END
USER WOULD ACTUALLY RECEIVE THE WARNING. JUSTICE PATTERSON: YOU'RE
SAYING THAT THE DEFENDANT MUST PROVE THAT THE EMPLOYER PROVIDED THE WARNINGS
TO THE PLAINTIFF? JARED M. PLACITELLA: THE DEFENDANT HAS TO
DEFEND THE CASE. THE PLAINTIFF HAS TO SHOW THAT THE WARNING WAS INADEQUATE AND
WAS NOT RECEIVED BY THE PLAINTIFF. DOES THAT ADDRESS YOUR QUESTION?
JUSTICE PATTERSON: AND WHEN YOU HAVE A CASE LIKE THIS WHICH IS A COMMON SCENARIO
WHERE NO ONE REALLY KNOWS WHAT THE PLAINTIFF RECEIVED OR DIDN'T RECEIVE,
THE DECEDENT, IS IT THE PLAINTIFF'S BURDEN TO PROVE THAT THE WARNINGS DID NOT,
THE EMPLOYER WARNINGS DID NOT REACH THE PLAINTIFF? JARED M.
PLACITELLA: WELL -- JUSTICE PATTERSON: I MEAN WERE I'M GETTING AT
HERE IS YOU EVER A JURY INSTRUCTION THAT GOES IN KIND OF TWO DIFFERENT DREBSZ IN
TERMS OF HOW IT'S PHRASED. WHAT IS THIS THING ABOUT REASONABLE STEPS IF IT
ISN'T THE BURDEN ON THE PLAINTIFF TO PROVE THAT THE STEPS TAKEN WERE UNREASONABLE
AND THAT THAT UNREASONABLENESS CAUSED THE EXPOSURE LEAVING ALL THE BURDEN
ON THE PLAINTIFF THE WHOLE TIME. IT SEEMS LIKE WHAT YOU'RE SAYING IS THERE'S SOME
ASPECT OF THIS THAT IS THE DEFENDANT'S BURDEN AND I THINK IT'S CONFUSING
SCENARIO. JARED M. PLACITELLA: WHAT WE'RE ADVOCATING IS
MERELY THAT THE WARNING NEEDS TO BE RECEIVED BY THE PLAINTIFF. SO IN THIS CASE.
JUSTICE FERNANDEZ-VINA: WHOSE BURDEN IS IT TO PROVE THAT?
THE DEFENDANT OR THE PLAINTIFF'S? JARED M. PLACITELLA: THERE HAS
TO BE A DUTY TO WARN. JUSTICE FERNANDEZ-VINA: MY QUESTION
VERY SIMPLE, COUNSEL. WHOSE BURDEN IS IT TO PROVE WHAT YOU JUST SAID?
IS IT THE DEFENDANT'S OR THE PLAINTIFF'S. JARED M. PLACITELLA: IT'S
THE PLAINTIFF'S BURDEN TO PROVE THAT THERE WAS NO WARNING TO THE PLAINTIFF
AND THE EMPLOYER. BUT, YOUR HONOR, WHAT HAPPENED IN THIS CASE.
CHIEF JUSTICE RABNER: COUNSEL BEFORE YOU JUMP INTO THAT. WE APPRECIATE YOUR HELP
AS AMICUS HERE. I'M MINDFUL OF THE HOUR AND WANT TO GIVE MR. ESCROW DRO
TO SPEAK AS WELL. JARED M. PLACITELLA: YOUR HONOR, I'LL MOVE TO
MEDICAL CAUSATION. THE SHOLTIS FREQUENCY REGULARITY AND
PROXIMITY TEST IS BEST APPLIED BY THE TRIAL COURT IN ITS GATEKEEPING FUNCTION. TRIAL
COURTS ASK AS GATEKEEPERS TO DETERMINE WHETHER THERE'S SUFFICIENT EVIDENCE
FOR JURORS TO EVALUATE CERTAIN ISSUES. TRIAL COURTS DECIDE WHETHER THERE ARE GENUINE
ISSUE OF MATERIAL FACT FOR A JURY TO DETERMINE. THEY DETERMINE WHETHER THE
PLAINTIFF HAD PRESENTED SUFFICIENT EVIDENCE TO SUSTAIN A VERDICT. THEY DETERMINE
WHETHER THE EXPERT'S METHODOLOGY IS SUFFICIENT RELIABLE. AND IF COUNSEL
FOR PLAINTIFF PETITIONER ALLUDED TO, JUDGES IN THE ASBESTOS MCL HAVE USED THE SHOT
PETITION TEST TO DETERMINE WHETHER THERE IS SUFFICIENT EVIDENCE OF ASBESTOS
EXPOSURE TO A DEFENDANT'S PRODUCT FOR THE JURY TO CONSIDER MEDICAL CAUSATION. AND
BASED ON THE EARLIER COLLOQUY IT WAS UNDER THE IMPRESSION THAT JUDGES ARE
IGNORING THE SHOLTIS TEST. THEY ARE NOT. AS IT SHOWN EVEN IN THE PROCEDURAL HISTORY
OF THIS CASE JUDGES APPLY THE SHOLTIS TEST TO DETERMINE WHETHER THERE IS
SUFFICIENT EVIDENCE OF EXPOSURE AND THEN IF THE, PASSES THE GATEKEEPING IT IS THE
JURY'S DETERMINATION TO FIGURE OUT WHETHER THAT EXPOSURE WAS A SUBSTANTIAL
FACTOR IN CAUSING. JUSTICE PATTERSON: SO IS IT THE N.J. AA'S
POSITION THAT SHOLTD THIS IS THE GOVERNING TEST IN THE MESOTHELIOMA CASE.
JARED M. PLACITELLA: SHOT THIS AS MODIFIED BY KERR RACK WHICH COUNSEL FOR
PETITIONER HAD SAID THERE'S A DIFFERENT FOR MESOTHELIOMA CASES BECAUSE OF THE
SCIENTIFIC EVIDENCE SHOWING THE LESSER EXPOSURE TO EXPOSURE THAT IS NEEDED. EVEN
THE SHOLTIS TEST IMAGINED THAT THE JURY WOULD BE THE ONE WHO WOULD BE
DETERMINE LG A SUBSTANTIAL FACTOR. THAT CASE SAYS, QUOTE, WELL, THE ISSUES QUOTE
ARE BEST RESOLVED BY THE CONCEPT OF PROXIMATE CAUSE. THE CONTACT BETWEEN A
PLAINTIFF INTL A DEFECTIVE PRODUCT MUST BE SUFFICIENTLY SIGNIFICANT SO THAT A
REASONABLE JURY COULD DETERMINE THAT A PRODUCT WAS A SUBSTANTIAL FACTOR IN BRINGING
ABOUT THE PLAINTIFF'S HARM. AND THAT IS WHY THAT JUSTICE ALBIN'S POINT
EARLIER, THAT'S WHY THE APPELLATE DIVISION IN RICHTER HELD THAT THE MODEL JURY CHARGE
'S SUBSTANTIAL FACTOR INSTRUCTION PROPERLY APPLIES THE CONCEPT UNDERLYING
THE SHOT THIS TEST. UNLIKE THE SUBSTANTIAL FACTOR TEST THAT IS WELL DEFINED
AND HAS BEEN APPLIED TO OUR JURY'S KNOCKS SUSPICIOUS AND TORT CASES, IN CASES
THAT CONTRIBUTE TO A PLAINTIFF'S HARM. THERE ARE NO WELL DEFINED TERMS FOR WHAT
IS FREQUENT REGULAR PROXIMATE FOR A JURY TO CONSIDER. AND THOSE TERMS,
THE SHOT PETITION COURT DID NOT WANT TO BE USED AS A CATCH PHRASES. TURN ON THE
ISSUE AND THE MEANS DURATION AND LENGTH OF EXPOSURE. IF THIS COURT
WERE TO HOLD OTHERWISE, THAT A JURY SHOULD BE INSTRUCT ON THE FREQUENT REGULAR
PROXIMATE TEST THEN IT SHOULD REFER THE MATTER TO THE MODEL CIVIL JURY CHARGE
COMMITTEE TO CONSIDER HOW TO BEST AID AND INSTRUCT THE JURY IN CONSIDERATION OF
THESE ISSUES. UNLESS THE JUSTICES HAVE ANY FURTHER QUESTIONS I REST.
CHIEF JUSTICE RABNER: THANK YOU. MICHAEL A. SCODRO:
THANK YOU, MAY PLEASE THE COURT AND COUNSEL. I'LL TRY IT USE MY OPENING
REMARKS TO FRAME THE ISSUE THAT I THINK IS BEFORE THE COURT AND TO EXPLAIN A COUPLE
OF THINGS THAT I FEAR -- THAT I WOULD DISAGREE WITH CERTAINLY IN THE WAY THAT
HAS BEEN PRESENTED BY PETITIONER'S COUNSEL IN THE CASE AND THAT THEIR BRIEFING
AND TODAY AND THAT NAMELY THE EFFECT THAT THE TWO COMPETING RULES HERE WOULD HAVE
THE SAFETY MEASURES THAT WOULD BE IN SENSE THINK 55. AND ALSO TALK A LITTLE BIT
ABOUT THIS NOTION THAT IN STRICT LIABILITY SOMEHOW THE TEST ANNOUNCED IN COFFMAN
AND THE RESTATEMENT AND OTHERS WHICH ARE STRICT LIABILITY STATEMENTS DOES
NOT APPLY AND IT IS A REASONABLE STANDARD AS JUSTICE PATTERSON HAD ASKED ABOUT
EARLIER. SO I'LL BEGIN BY SAYING THAT AS I THINK HAS BECOME
CLEAR AND WAS CLEAR IF THE BRIEF PLAINTIFF'S HERE SEEK AND REQUIRE AN UNYIELDING
RULE THAT THE TRIAL COURT APPLIED IN THIS CASE. THAT IS THAT THERE IS A
FREESTANDING DUTY TO PROVIDE A COMPLETE AND INDEPENDENTLY ADEQUATE WARNING ON THE
FACE OF THE PACKAGING. IF THERE'S ANY EXCEPTION TO THAT, THEN UNION CARBIDE
IS ENTITLED TO A NEW TRIAL. UNDER PLAINTIFF'S RULE THE JURY CANNOT AND MAY NOT
CONSIDER ANYTHING ELSE FULL STOP IN DECIDING WHETHER THE MANUFACTURER HAS
DISCHARGED ITS DUTY TO WARN THE EMPLOYER. AGAIN THERE'S NO AUTHORITY FOR THIS RULE
THAT DEFIES THE RESTATEMENT THAT RE DEFIES THE LAW IN OUR JURISDICTIONS
AND NEW JERSEY PRECEDENT AS WE EXPLAINED IN OUR BRIEF. LIKE THE RESTATEMENT THIS
COURT HAS RECOGNIZED IN COFFMAN THAT DISCHARGING THE DUTY TO WARN THE
EMPLOYEE SOMETIMES REQUIRES COMMUNICATING INFORMATION THROUGH THE EMPLOYER AND
GREER MADE THAT HOLDING EXPRESS. THIS RULE MAKES PRACTICAL SENSE AND CAN
DO MORE ULTIMATELY TO HELP EMPLOYEES. WHY SHOULD PRODUCT PACKAGING ITSELF AND
ALONE RECEIVE AN ARBITRARY AND UNIQUE STATUS AS GROUNDS FOR A FREESTANDING
DUTY PARTICULARLY WHETHER WE KNOW, WE KNOW FROM THE SCIENCE AND THE LITERATURE,
WE KNOW FROM THE RECORD IN THIS CASE THAT IN MODERN PLANTS THEY ARE RARELY
SEEN BY THE EMPLOYEES AND EVEN IN RARER STILL DO THEY READ THE WARNINGS ON THE
PACKAGES. AS COFFMAN, GREER AND THE RESTATEMENT AND OTHER JURISDICTIONS
ALL RECOGNIZE WHAT MATTERS IS THE REASONABLENESS OF THE MANUFACTURER'S EFFORT
TO MEANINGFUL ALERT ITS CUSTOMERS AND EMPLOYEES TO PRODUCT DANGERS AND TO
PROPOSE WAYS TO USE THAT PRODUCT SAFELY. THIS IS NOT A DELEGATION OF THE DUTY TO WARN
EMPLOYEES. IT'S THE CREATION OF WARNINGS THAT GO BEYOND THE BAG INCLUDING
SOME LIKE POSTERS OR PAMPHLETS WHERE APPROPRIATE THAT MUST AS A PRACTICAL MATTER
BE PASSED THROUGH THE EMPLOYER. THE MANUFACTURER CAN'T PUT POSTERS ON WULS
OR BROCHURES IN EMPLOYEE HANDS WITHOUT TRESPASSING. THEY HAVE TO PASS THEM THROUGH
THE EMPLOYER. PLAINTIFF ALSO MISUNDERSTAND THE PRACTICAL EFFECT OF THESE
COMPETING RULES. PLAINTIFF SUGGESTS THAT BY REJECTING THE RESTATEMENT RULE AND
CONVERTING THE WELL RECOGNIZED DUTY TO WARN EMPLOYEES INTO AN UNPRECEDENTED
AND DRASTICALLY NARROWED THE DUTY TO PUT ALL EMPLOYEE WARNINGS ON THE BAG, THIS COURT
WOULD ACTUALLY IN SENSE THINK ADVISE MANUFACTURER TO MAXIMIZE WARNING BUT
THAT'S NOT TRUE. UNDER PLAINTIFF'S RULE MANUFACTURER AGAIN HAVE TO PUT EVERYTHING
ON THE BAG. ISN'T IT A BETTER INCENTIVE TO MANUFACTURER TO SAY CREATE AND
TO PASS ALONG ALTERNATIVE AND SUPERIOR MEASURES DESIGNED TO TALK TO THE EMPLOYEE,
THINGS LIKE POSTERS OR BROCHURES, MANUFACTURED SPONSORED TRAINING ISN'T
IT A BETTER INCENTIVE TO CREATE THOSE BY CREDITING THAT AND COUNTSING IT WERE JURORS
ARE CHARGED TO DETERMINE WHETHER THE MANUFACTURER HAS SERGEANT ITS DUTY TO
WARN THE FLOW. NOR IS THERE ANYTHING TO THE DISTINCTION THE PLAINTIFFS AND THEIR AMICUS
TRY IT DRAW BETWEEN SO-CALLED DIRECT AND INDIRECT COMMUNICATION. THE WORDS
HAVE EVEN BEEN USED A BIT TODAY, BETWEEN MANUFACTURER AND THEIR CUSTOMERS AND
EMPLOYEES AND WHAT ABOUT THE OPERATIONS MANUAL IN GREER. THAT'S NO MORE OR
LESS DIRECT THAN THE PAMPHLETS THAT UNION CARBIDE PROVIDED HERE. BOTH WERE GIVEN
TO THE EMPLOYER AND WERE INTENDED FOR THE USER. WHAT HAPPENS IF WE KNOW IS ALL
THE CASE THE MATERIAL IS PROVIDED IN BULK. SO THERE'S NO PACKAGING. IS A WARNING
MATERIAL THAT ACCOMPANIES THE PRODUCT BUT AGAIN HAS TO BE GIVEN IN THE FIRST
INSTANCE TO THE EMPLOYER EVEN THOUGH IT'S MEANT FOR THE EMPLOYEES, IS THAT BEING
COMMUNICATED DIRECT OR INDIRECT WITHIN PLAINTIFF'S VIEW IT SIMPLY ISN'T A
WORKABLE DISTINGUISH. FINALLY ON THAT POINT I'LL NOTE THAT ALTHOUGH THERE, THERE WERE
CASES CITED IN SOME OF THE LATER FILED BRIEFS IN RESPONSE TO AMICUS IN CASES
FOR THIS PROPOSITION THAT SOMEHOW WE ONLY LOOK AT THE PRODUCT THAT IS TO SAY WE'RE
NOT LOOKING CONTRARY TO COFFMAN, CONTRARY TO RESTATEMENT, WE'RE NOT LOOKING
AT WHETHER THE MANUFACTURER TOOK REASONABLE STEPS TO CONVEY THE WARNING TO EMPLOYEES.
HERE, FOR EXAMPLE, BY SENDING POSTERS AND SO FORTH. THAT SIMPLY CONTRADICTED
BY THOSE OWN CASES, READING FURTHER DOWN IN THOSE SAME CASES THEY SAY HERE'S WHAT
WE MEAN BY THAT. WE MEAN THAT IN A STRICT LIABILITY CONTEXT THE MANUFACTURER
IS PRESUMED TO KNOW OF THE PRODUCT'S DANGERS. WE STILL THEN THOSE CASES STILL
GO ON TO SAY THAT JUSTICE COULD HAVE, THAT IN THE STRICT LIABILITY CONTEXT,
THE LONE STAR QUESTION, THE ONE BEFORE THE COURT, THE QUESTION THAT SHOULD HAVE BEEN
BEFORE THE JURY HERE IS WERE REASONABLE STEPS TAKEN BY THE MANUFACTURER
TO ENSURE THAT EMPLOYEES WERE PROPERLY WARNED AND HERE, THAT OUGHT TO HAVE INCLUDED
LOOKING AT THE, ALL OF THE MATERIAL THAT WAS GIVEN TO THE EMPLOYER WITH
THE EXPRESSED DIRECTION IN SOME CASES TO JUST HAND THIS OVER TO THE EMPLOYEES AND
I SHOULD NOTE TO THIS THE NOTION THAT SOMEHOW THIS IS ABSOLVING THE
MANUFACTURER, ITS WASHING ITS HANDS OR IT DOESN'T RUN THE RISK THAT THE EMPLOYER
WILL JUST PUT THIS STUFF IN A DESK DRAWER, IT SIMPLY ISN'T TRUE. THE RESTATEMENT
TEST ITSELF ALLOWS FOR JURORS TO BALANCE A NUMBER OF FACTORS IN DECIDING
WHETHER IT WAS REASONABLE TO ASK THE EMPLOYER UNDER THOSE CIRCUMSTANCES TO PASS
MATERIAL OR INFORMATION ALONG AND IF THERE'S A CLAIM MADE THAT THAT SIMPLY
UNREASONABLE UNDER THE CIRCUMSTANCES OR IN THIS INDUSTRY OR WHAT HAVE YOU, THAT
THAT WOULD BE THE PLAINTIFF'S ARGUMENT, THAT'S AN ARGUMENTS FOR THE JURY IN
DECIDING WHETHER IT WAS REASONABLE OR UNREASONABLE UNDER THE CIRCUMSTANCES.
YOUR HONORS, I'LL VERY QUICKLY JUST TOUCH ON THE SECOND BUT
OBVIOUSLY THEN, YOU KNOW, I'M HAPPY TO,. JUSTICE PATTERSON:
HAVE YOU FINISHED YOUR OPENING STATEMENT? MICHAEL A. SCODRO:
I. I'M HAPPY TO PIVOT TO THE SECOND OR TO WAIT AND WE CAN DEAL WITH THAT
SEPARATELY. WHATEVER THE COURT PREFERS. JUSTICE PATTERSON: IF YOU'RE
INVITING QUESTIONS. MICHAEL A. SCODRO: PLEASE.
JUSTICE PATTERSON: HOW DOES THE MANNER IN WHICH THE OBLIGATION OF THE MANUFACTURER
TO WARN THE EMPLOYER AND THE RELEVANCY DETERMINATION THAT WERE MADE BY THE
TRIAL COURT HERE DIFFER FROM THE RESTATEMENT APPROACH? MICHAEL A.
SCODRO: WELL, THE DIFFERENCE, YOUR HONOR, I THINK IS FAIRLY ENCAPSULATED IN THE,
LOOKING AT THE JURY INSTRUCTIONS. THE FOLLOWING, IF I MAY QUOTED JUST ONE
SENTENCE FROM THE JURY INSTRUCTIONS, THE DUTY TO PUT AN ADEQUATE WARNING ON THE
PRODUCT MAY NOT BE DISCHARGED BY WARNINGS AND INFORMATION TO THE EMPLOYER. THIS
PRESUMES THAT THERE IS A FREESTANDING DUTY TO PUT AN ENTIRE WARNING ON THE
PRODUCT AND IN CONTEXT OF COURSE IN LIGHT OF CLOSING ARGUMENTS AND CERTAINLY IN
LIGHT OF THE JURY'S QUESTION, AND THE ANSWER THAT THE COURT GAVE, IT WAS
VERY CLEAR THAT WHAT THIS MEANS IS THERE IS A FREESTANDING DUTY TO -- AND I THINK
IT'S THE ONE THAT'S BEEN TALKED ABOUT TODAY AND THE PETITIONER IS OPENLY
ADVANCING. A FREESTANDING DUTY TO INCLUDE EVERYTHING THAT'S NEEDED FOR AN
ADEQUATE WARNING TO THE EMPLOYEE ON THE PACKAGE, THAT NOTHING ELSE COUNTS AS DIRECT
OR PERHAPS PUTTING SOMETHING ON THE OUTSIDE OF THE BAG WOULD COUNT AS
DIRECT. AGAIN AS I'VE STATED I THINK IT'S A VERY, IT WOULD BE A VERY TOUGH LINE
TO DRAW IF WE START TALKING ABOUT WHAT'S DIRECT OR INDIRECT COMMUNICATION.
THAT DIFFERS BECAUSE THE RESTATEMENT SAYS OUTRIGHT THERE IS NO HARD AND FAST RULE.
JUSTICE ALBIN: I'M LOOKING AT COFFMAN. BECAUSE THAT'S OUR
LAW. AND IN COFFMAN SAYS THERE'S AN OBLIGATION TO WARN BOTH THE EMPLOYEE AND THE
EMPLOYER. ALL OF THE THINGS THAT YOU SAID ABOUT TRANSMITTING INFORMATION
TO THE EMPLOYER SO WE'LL GET TO THE EMPLOYEE MAKES A WHOLE HOT OF SENSE AND I
THINK MR. PROTECT MFRDZ AND ALSO PROTECT EMPLOYEES AS WELL. COFFMAN TALKS
ABOUT DIRECT COMMUNICATION WITH THE EMPLOYEE AND IN THIS PARTICULAR CASE WE KNOW
THAT THERE ARE BAGS OF ASBESTOS, WHICH ARE DANGEROUS. AND PLAINTIFF IS
SAYING AND SAYS THEY HAVE PROOF BEFORE THE JURY THAT THE FAILURE TO PUT ADEQUATE
WARNINGS ON THOSE BAGS THEMSELVES VIOLATED THE COMMON LAW DUTY OF THE
MANUFACTURER AND THAT'S PRECISELY WHAT THE JURY FOUND. SO WHY, SO WHY HASN'T THE
PLAINTIFF SATISFIED THAT PRONG? MICHAEL A. SCODRO: SURE.
THE REASON, YOUR HONOR, IS THAT THEY PUT, THEY CHOSE THE BAGS ALONE. THERE'S
NOTHING IN COFFMAN. IN FACT, COFFMAN IS TO THE CONTRARY. THERE'S NOTHING IN COFFMAN
THAT SAYS, BY THE WAY, THE ONLY WAY TO DO THIS, TO DISCHARGE, YOU'RE PUTTING
ASIDE ANY DUTY TO THE EMPLOYER AND I UNDERSTAND THE DISCUSSION ABOUT CURRENT DUTIES
AND SO FORTH THAT THEER DISCUSSES BUT THE DUTY TO DISCHARGE, DISCHARGING YOUR
DUTY AS A MANUFACTURER TO THE FLOW, COFFMAN DOESN'T SAY THE ONLY WAY TO DO THAT
IS ON A BAG. WHAT IT SAYS IS YOU HAVE TO TAKE REASONABLE STEPS TO ENSURE THAT
YOU ARE WARNING THE EMPLOYEE AND AS THE RESTATEMENT CORRECTLY EXPANDS BUT THIS IS
PERFECTLY IN STEP WITH COFFMAN, THERE MIGHT BE MANY WAYS TO DO THAT AND
WE SHOULD IN SENSE THINK ADVISE MITIGATING FACTORS TO DO IT IN THE WAY THAT'S
BEST. JUSTICE ALBIN: THAT'S TAKE WHAT YOU SAID. THE BAG IS
ONE WAY OF DIRECTLY INFORMING THE EMPLOYEE. TELL ME HOW UNION CARBIDE DIRECTLY,
IF IT DIDN'T DO IT THROUGH THE BAG, HOW DID YOU DIRECTLY COMMUNICATE TO THE
EMPLOYEE? FORGET ABOUT THE EMPLOYER, OKAY. BECAUSE YOUR REASONABLE STEPS TO THE
EMPLOYER THAT'S A SEPARATE PRONG. TELL US WHAT YOU DID TO COMMUNICATE DIRECTLY
WITH EDENFIELD. MICHAEL A. SCODRO: COMMUNICATING AND AGAIN I
JUST WANT TO GIVE PAUSE TO THE DIRECTED OR IN DIRECTLY BECAUSE I'M ENTIRELY SURE
WHERE THAT LINE IS DRAWN. BUT I WILL SAY THAT IN GIVING THE WARNING ON THE
BAG PLAY OR MAY NOT HAVE DIRECTLY REACHED,. JUSTICE ALBIN: FORGET
ABOUT ON THE BAG. BECAUSE YEAR SAYING MAYBE NOT THE BAG. LET'S TALK ABOUT
PLASTERING THE WALL WITH WARNINGS WITH SKULL AND CROSSBONES ON PILLARS OR ON THE
FLOOR OR WHATEVER. DID YOU DO ANY OF THAT? MICHAEL A. SCODRO:
WE, NO, WE GAVE THE EMPLOYER EVERYTHING IT NEEDED TO DO EXACTLY, EVERYTHING WE
COULD SHORT OF TRESPASS. JUSTICE PATTERSON: DOES A VENDOR HAVE THE
RIGHT TO GO IN AND PLASTER SIGNS, PLANTS MAY HAVE A HUNDRED VENDORS, RIGHT
OR MORE. DOES A VENDOR HAVE A LEGAL RIGHT TO GO IN AND PLASTER THE WALLS, PLASTER
PILLARS, PLASTER THINGS ALL OVER THE PLACE IF A PLANT? MICHAEL A.
SCODRO: WE DON'T, YOUR HONOR. JUSTICE ALBIN: IF YOU DON'T WANT TO DO IT
ON THE BED YOU COULD ASK PERMISSION, CAN I COME IN AND PUT IT THERE? NO?
MICHAEL A. SCODRO: WHAT WE DID IN THIS CASE JUSTICE ALBIN IS
WE ASKED THEM IN THE LETTERS THAT ARE IN THE RECORD WE SAID, YOU KNOW, HAND PLEASE
OUT. MAKE SURE WE CAN GET YOU ENOUGH FOR EVERY EMPLOYEE, FOR EXAMPLE, AND
THE PRO SURE SAYS YOU'LL SEE,. JUSTICE ALBIN: I UNDERSTAND. I'M NOT
SAYING YOU DIDN'T MAKE REASONABLE EFFORTS TO COMMUNICATE WITH THE EMPLOYER.
ON THE VERDICT SHEET IT INDICATES THE PLAINTIFF DIDN'T PROVE THAT. SO, BUT
COFFMAN SAYS YOU'VE GOT TO COMMUNICATE WITH THE EMPLOYEE AND COFFMAN SPECIFICALLY
SAYS LIKE ONE OF THE REASONS WHY DO YOU THAT IS BECAUSE WE ARE NOT ALWAYS
CERTAIN THAT THE EMPLOYER IS GOING TO COMMUNICATE THE CORRECT INFORMATION TO THE
EMPLOYEE. SO THAT'S WHY THERE IS THIS DUAL REQUIREMENT, CORRECT? AM I
MISTAKEN? MICHAEL A. SCODRO: NO, YOUR HONOR, NOT MISTAKEN.
BUT LET ME JUST QUALIFY IT IF I MAY. WHAT COFFMAN IS SAYING AS I UNDERSTAND IT
IS THE ULTIMATE DUTY IS TO THE EMPLOYEE, WE ALL AGREED EARLIER I THINK IN
AN EARLIER QUALITY THAT THE HON STAR HERE IS THAT THE EMPLOYEE AT THE END OF THE
DAY RECEIVE ADEQUATE WARNING. COFFMAN RECOGNIZES MULTIPLE CHANCE TO DO THAT.
PLAINTIFF'S EFFORT HERE, THIS GOES FAR BEYOND COFFMAN IS INDEED WE WOULD SAY DISAGREE
IT CONFLICTS WITH COFFMAN IS TO SAY THE ONLY WAY YOU CAN SATISFY CHANNEL
ONE, WHICH IS COMMUNICATION WITH THE EMPLOYEE, IS TO PUT SOMETHING ON A BAG. A
BAG THAT WE KNOW IN THE MODERN ENVIRONMENT FREQUENTLY IS NEVER SEEN BY EMPLOYEES.
JUSTICE ALBIN: DID YOU PUT WARN CAN ON THE BAGS?
MICHAEL A. SCODRO: WE DID, YOUR HONOR, YES. JUSTICE ALBIN:
SO YOU OBVIOUSLY THOUGHT THAT PUTTING WARN CAN ON THE BAGS WERE GOING TO
ACCOMPLISH SOMETHING. BUT THE JURY JUST FOUND THAT THOSE WARN CAN WERE INADEQUATE.
IT'S NOT LIKE YOU DIDN'T THINK THAT THE BAGS WOULD COMMUNICATE THE
INFORMATION. YOU DID. THE JURY FOUND THEY WERE INADEQUATE. MICHAEL
A. SCODRO: YOUR HONOR, THE JURY IF THEY WERE ASKED TO FOCUS ON ANY SINGLE FACTOR,
POSTERS, THEY MIGHT HAVE FOUFRNDZ THOSE ALONE WERE INADEQUATE. THE BROCHURES
WE SENT THEY MIGHT HAVE FOUND THOSE ALONE WERE INADEQUATE. I HOPE NOT.
JUSTICE PATTERSON: IS THERE ANY WAY TO COMMUNICATE, AND MSDS MAY BE VERY MULTIPLE
MULTIPLE PAGES OF EXPLANATIONS AND TRAINING AND QUITE COMPLEX MEDICAL
CONSIDERATIONS THAT ARE COMMUNICATED. CAN THAT BE PUT ON A TEN POUND BAG OF ASBESTOS.
MICHAEL A. SCODRO: IT CAN'T YOUR HONOR. EVEN IF THEY THOUGHT
EMPLOYEES WERE SEE THE BAGS AND WE KNOW THAT'S NOT THE CASE. SOMETIMES THE STUFF
COMES IN BULK SO THERE ARE NO BAGS WHICH MEANS THIS CAN'T BE WHAT THE LAW
REQUIRES IF EVERY CASE. JUSTICE PATTERSON: AND POSTERS USE BIG
PRINT. THEY HAVE INTOLS. I DON'T KNOW ABOUT THE PARTICULAR POSTERS THAT
THEY CAN CREATE WITH SOME DRAMA AS TO THE NEED TO TAKE PRECAUTIONS AROUND THE PRODUCT.
IS THAT SOMETHING THAT CAN BE PUT ON THE BAG? MICHAEL A. SCODRO:
NOT ON A BAG OF THIS SIZE EFFECTIVELY, YOUR HONOR, AND I WOULD ADD IF THAT
YOUR HONOR LOOKS AT THE EXAMPLES PROVIDED IN THE APPENDIX TO OUR OPENING BRIEF BEFORE
THE APPELLATE DIVISION THERE ARE NUMEROUS EXAMPLES OF EXACTLY WHAT YOUR HONOR
IS DESCRIBING. THESE ARE VERY STARK, THEY'RE POSTERS THAT SHOW IMAGES WITH VERY
PRECISE WARN CAN LIKEWISE WITH THE BROCHURES THAT WERE INTENDED TO GO TO
EMPLOYEES DIRECTLY. THAT IS TO SAY PLEASE GIVE THESE TO THE EMPLOYEES BECAUSE WE CAN'T
COME IN AND DO IT OURSELVES. THOSE ALSO HAD IMAGES AND VERY CLEAR
INSTRUCTIONS, THINGS LIKE DO NOT SWEEP DRY, MAKE SURE IT'S WET OR VACUUM. THINGS
THAT YOU CAN TAKE, AND THERE ARE MANY OF THESE, RIGHT. AND SO THIS WAS,.
JUSTICE ALBIN: I THOUGHT THAT THE PLAINTIFF'S ARGUMENT, TELL ME IF I'M
MISTAKEN, WAS NOT THAT THERE HAD TO BE, PARAGRAPH AFTER PARAGRAPH ON THE BAG
IS THAT YOU DIDN'T PUT THE INFORMATION HOWEVER LITTLE IT WOULD HAVE BEEN TO APPRISE
THE WORKER OF HOW REALLY DANGEROUS THIS STUFF WAS. AND THAT THE EXPOSURE OF
A SMALL AMOUNT MIGHT BE LIFE THREATENING NOUN THE LINE. EVEN IF IT WAS IN A COUPLE
OF LINES. THAT'S WHETHER I, I THOUGHT THAT'S WHAT THEY WERE ARGUING ON THE
BAG. MICHAEL A. SCODRO: A FEW POINTS, YOUR HONOR. I APPRECIATE
THAT. THE FIRST POINT IS I'M NOT SURE THAT'S WHAT THEY'RE ARGUING IN THEIR BRIEFS
CHTS TO ME IT STRIKES ME THAT THE POSITION THAT THEY'RE TAKING IS THAT THERE
NEEDED TO BE FULL APPROXIMATE COMPLETE WARNINGS ON THE BAGS AND THAT IT THAT WAS
THE ONLY THING AN EMPLOYEE EVER SAW THAT THAT WOULD BE ENOUGH TO ADEQUACYLY
WARN THEM. BUT I'LL SAY MORE IMPORTANTLY THE QUESTIONS YOUR HONOR IS RAISING
INCLUDING THIS QUESTION I THINK THIS IS PRECISELY WHY THIS IS A JURY QUESTION.
WHAT THE RESTATEMENT AND OTHER COURTS HAVE RECOGNIZED IS THAT THE QUESTION IS
WERE REASONABLE STEPS TAKEN AND THAT'S IN COFFMAN EGGS COS PRECISELY THAT
STANDARD AND THAT IS A CLASSIC JURY QUESTION AND IF PART OF THE ANSWER IS, LOOK,
IF YOU LOOK IT'S WHAT WAS ON THIS BAG AND THEN YOU COMPARE IT TO WHAT'S BEEN
PROVIDED TO THE EMPLOYEE AND THE EMPLOYEE HAS A HISTORY OF NOT PASSING ALONG WARNINGS
OR WHATEVER, YOU MIGHT SAY, THAT'S A CLOSING ARGUMENT. JUSTICE
ALBIN: BUT THE JURY WAS GIVEN. IF THOSE WARNINGS WERE REASONABLE AND ADEQUATE
THAT THEN ADEQUATE AND REASONABLE, THEN THEY WOULD HAVE BEEN NO LIABILITIES.
THAT WENT TO THE JURY. THE JURY COULD HAVE DETERMINED THAT THESE WERE ADEQUATE
WARNINGS. THEY WERE PUT ON NOTICE. MICHAEL A. SCODRO: ACTUALLY
THEY DIDN'T. ALL THE JURY GOT THEY HAD TO ANSWER WAS THE THRESHOLD QUESTION,
WAS, EXCUSE ME WAS THE BAG ITSELF, WAS THE WARNING ON THE BAG ITSELF ADEQUATE AND
WE'VE HEARD COUNSEL ANSWER IT DIRECTLY AND CORRECTLY CONSISTENCY WITH THEIR
POSITION THIS MORNING REPEATEDLY THAT IF THE, IF THE WARNING ON THE BAG ITSELF
WAS INADEQUATE THEN EVERYTHING COPS TO A STOP. JUSTICE PATTERSON:
YEAH. AS I UNDERSTAND THE WAY THIS WAS SET UP FOR THE JURY AND THAT'S WHY I
WAS FRANKLY REALLY BE FUNDAMENTAL DILD LOOKING AT THE WAY THIS THING WAS SET UP
WAS THERE'S A QUESTION ONLY ABOUT THE BAG AND THEN THERE'S A QUESTION ABOUT
REASONABLE STEPS BUT THE POSITION I THINK, WHAT THE JURY WAS GOIDZED TO DO IS THE
WHOLE BALL GAME IS ON THE ADEQUACY OF THE WARNING ON THE BAGS AND EVEN SOME
DISCUSSION TODAY TALKED ABOUT EVEN IF THE WARNINGS IS INADEQUATE ON THE BAG ALL
THIS OTHER STUFF DOESN'T MATTER, THAT IS REALLY FAR FROM NOT ONLY THE WAY THE
LAW IS RECENTLY DEVELOPED AS EXPRESSED IN THE RESTATEMENT BUT FROM COFFMAN
AND THEER AND THE APPELLATE DIVISION'S POSITION IN GREER. ISN'T IT?
MICHAEL A. SCODRO: IT IS, YOUR HONOR. AS WE SAY IN OUR BRIEF AND PLAINTIFFS
HAVEN'T COME UP WITH A CASE TO THE CONTRARY. WE HAVE YET TO SEE ANYTHING
THAT SAYS THAT EVERYTHING TURS ON ON WHAT IS ON THE BAG WHETHER IT COMES TO
DISCHARGING THE DUTY TO THE EMPLOYEE. JUSTICE PATTERSON: SO
WHEN THE APPELLATE DIVISION LOOKED AFT THIS AND THEY RECITE THE RESTATEMENT
AND THEY SITE THE LAW WHAT THEY WERE SAYING IS, YES, IT MATTERS WHAT'S ON THE BAG.
BUT IT ALSO MATTERS ABOUT THESE OTHER STEPS THAT WERE TAKEN THAT IN THIS
CASE THE JURY FOUND REASONABLE AND THE ENTIRE, THE ENTIRE CONSIDERATION FOR THE
JURY SHOULD BE AN INTEGRATION OF THOSE TOGETHER, NOT HAVE ONE QUESTION THAT
MATTERS AND ONE QUESTION THAT HAS LIKE, YOU KNOW, EVAPORATES INTO THE AIR IS IRRELEVANT.
ISN'T THAT WHAT THE APPELLATE DIVISION IS DOING HERE? MICHAEL A.
SCODRO: THAT'S MY READING OF THE APPELLATE DIVISION, YOUR HONOR. IT'S PRECISELY
WHAT WE ASKED OF THE APPELLANT. IT'S WHAT WE BELIEVE COFFMAN AND CERTAINLY
WE KNOW THE RESTATEMENT DEMANDS. AND THAT'S EXACTLY WHAT WE'VE ASKED FOR.
JUSTICE ALBIN: IN COFFMAN, THE DIRECT COMMUNICATION TO THE EMPLOYEE
IN THIS CASE IS THROUGH THE BAG AND WHY? BECAUSE THIS IS THE ITEM THAT THE
EMPLOYEE USED. EVERY DAY EVERY WEEK EVERY MONTH FOR YEARS. HE WAS GRABBING IT.
AND THE QUESTION IS WERE THE WARN CAN ON THE BAGS INADEQUATE TO APPRISE HIM AND
OTHERS OF THE DANGERS TO WHICH THEY WERE EXPOSED. MICHAEL A.
SCODRO: TWO QUICK POINTS IN RESPONSE. FIRST WE ACTUALLY DON'T KNOW, WE KNOW THAT
BAGS ROUTINELY ARE NOT HANDLED BY MOST OF THE EMPLOYEES DEALING WITH THE
SUBSTANCES. WE SEE THAT IN THE LITERATURE AND ACTUALLY ON THIS RECORD I KNOW THERE
HAVE BEEN SOME QUESTIONS ON THIS, IT IS UNCLEAR, IT IS DISPUTED WHETHER OR NOT
THERE WAS NO DIRECT EVIDENCE FROM MR. DOVER OR ANYONE ELSE THAT MR. EDENFIELD
HANDLED THE BAGS OF CALIDRIA AND THAT THOSE WERE BEING HANDLED ON HIS PART
IN THE MILLING ROOM AND SO FORTH. SO I THINK THE PREMISE THAT THAT IS THAT IS
MORE DIRECT WAY TO SPEAK TO EMPLOYEES THAN SAY A POSTER, I THINK IS, I THINK
THAT PREMISE IS SIMPLY INCORRECT FACTUALLY. BUT THE OTHER POINT IS COFFMAN AGENCY
I SEE IT IS NOT RELYING ON A DISTINCTION BETWEEN DIRECT AND INDIRECT. IT'S
RELYING ON A DUTY TO WARN INTLOES A DUTY TO WARN EMPLOYERS. IT RECOGNIZES BOTH.
ALTHOUGH THE SECOND IS IN SERVICE OF THE FIRST TO BE SURE.
JUSTICE PATTERSON: IN FACT, ISN'T IT FAIR TO SAY THAT THIS DWINS BETWEEN A DIRECT
WARNING AND OBVIOUSLY IF YOU HAVE A RETAIL CONSUMER PRODUCT AND IT'S A PACK
OF CIGARETTES, IT'S COLD MEDICINE, IT'S GOING DIRECTLY TO THE CONSUMER, IT'S IN
A PACKAGING YOU KNOW THE CONSUMER IS GETTING THE PACKAGE IS WHETHER THEY
READ THE WARNING OR NOT IS ANOTHER THING, AT LEAST THEY HAVE IT IT SEEMS TO ME
THE APPELLATE DIVISION WAS TRYING TO CONVEY THAT IN AN INDUSTRIAL SETTING YOU
DON'T KNOW EXACTLY WHAT THE EMPLOYEE IS SEEING AND DOING EVERY DAY AND,
THEREFORE, YOU WANT TO IN SENSE THINK ADVISE MULTIPLE CHANCE OF INFORMATION IN THE
GOOD FAITH HOPE THAT MULTIPLE WAYS THE MESSAGE WILL BEACON I'D HAVE AND.
AND IT SEEMS THAT THE TRIAL COURT WAS JUST SAYING THE BALL GAME IS ENTIRELY ON THE
PACKAGE, KITCHEN SHURS THAT ONLY A VERY FEW WORDS ARE EVEN GOING TO BE GIVEN.
MICHAEL A. SCODRO: AGREED ENTIRELY YOUR HONOR. AND I THINK
WHAT THE RESTATEMENT AND I WOULD ARGUE COFFMAN AND CERTAINLY OTHER JURISDICTIONS
WHAT THEY RECOGNIZE IS THAT IS EXACTLY WHAT YOUR HONOR SAID. DIFFERENT
ENVIRONMENTS ARE DIFFERENT. AND IT IS UP TO A JURY -- IT SHOULD BE IN THE PROVINCE
OF THE JURY, WE SHOULD COUNT ON THE JURY, WE ALL AGREE IT'S A REASONABLE
STEP STANDARD THAT'S RIGHT ON THE FACE OF COFFMAN AND IT'S IN THE RESTATEMENT AND
SO FORTH. IT OUGHT TO BE UP TO THE JURY TO DETERMINE WHETHER THE EFFORTS
TAKEN WERE REASONABLE AND UP TO THE PLAINTIFF MAY ARGUE, HEY, LOOK UNDER THESE
CIRCUMSTANCES THE ONLY REASONABLE WAY YOU COULD HAVE COMMUNICATED WAS THROUGH
THE BAG AND THAT WOULD BE PART OF THEIR CLOSING ARGUMENT.
JUSTICE ALBIN: THE THING, THE SECOND PART AND THAT IS PROVIDING REASONABLE INFORMATION
TO THE EMPLOYER, DOESN'T ANSWER THE QUESTION OF WHETHER IT GETS END USER.
THE FIRST QUESTION IMMEDIATELY GETS YOU TO THE END USER WHETHER OR NOT THERE WAS
ADEQUATE WARNING. AND EVEN IN THESE ASBESTOS CASES AT LEAST SOME OF THE
CASE I'M AWARE OF, INCLUDING WE'LL LAND, THE WARNINGS ARE PUT ON THE PRODUCTS.
THEY'RE PUT RIGHT THERE ON THE PRODUCTS. WARNING THE WORKER. WHETHER OR NOT
THE MACHINERY OR A PART OF THE MACHINERY CONTAINS ASBESTOS THAT COULD BE DANGEROUS.
AM I MISTAKEN? MICHAEL A. SCODRO: I WANT TO MAKE SURE I'M
ANSWERING YOUR HONOR'S QUESTION CORRECTLY. IF THE QUESTION IS ARE THERE
CASES IN WHICH THERE ARE WARNINGS POSTED ON, SAY, A PIECE OF MACHINERY ABOUT THE
DANGERS,. JUSTICE ALBIN: YES. MICHAEL A.
SCODRO: TO BE SURE. JUSTICE ALBIN: ON THE BOXES, ON THE BOXES, ON
THE MACHINES THAT ARE BEING OPENED BY THE WORKERS. THAT'S WHERE THE MANUFACTURER
PUTS THE WARNINGS. THAT'S WHERE YOU PUT THE WARNING. YOU PUT THE WARNING ON
THE BAG AND NOW YOU'RE SAYING WELL YOU, EVEN IF THAT'S NOT ANY GOOD MAYBE THEY GOT
THE INFORMATION SOMEWHERE ELSE. MICHAEL A. SCODRO: NO, NO,
YOUR HONOR. LET ME BE CLEAR. WE'RE NOT SAYING MAYBE THEY GOT SOMEWHERE
ELSE. THAT IS TRUE, BY THE WAY, OF SOME OF THE CASES THAT, FOR EXAMPLE, WHERE
LENG KEY CASE, THE NEW JERSEY DECISION REJECTING THE NOTION OF A SORT OF
LEARNED INTERMEDIARY. THAT'S A CASE WHERE THE EFFORT WAS MADE BY THE DEFENDANT
TO SAY, HEY, R CA YOU'RE SMART, WE MAY NOT BE DOING, PUTTING ANYTHING ON THE
MACHINE OR THE PACKAGE BUT WE'RE GOING TO COUNT ON YOU TO MAKE SURE THIS IS PASSED
ALONG. FAR FROM IT HERE. THE RESTATEMENT RULE AND THE RULE APPLIED IN OTHER
JURISDICTIONS AND I THINK THIS EXACTLY WHAT COFFMAN WAS DRIVING AT IS NO,
LOOK, WE HAVE AN ACKNOWLEDGED DUTY TO WARN THE EMPLOYEE OF THE DANGERS OF THE PRODUCT.
THE QUESTION THE JURY HAS TO DECIDE IS, SO THERE IS ONE OPTION WHICH IS
AS A MATTER OF LAW THE WAY TO DISCHARGE THAT DUTY IS WHAT YOU PUT ON THE BAG, FULL
STOP MENT THAT WAS APPLIED BY THE TRIAL COURT HERE. WHAT COULD HAVE MAN
IS SAYING, THE RESTATEMENT IS SAYING WE HAVE TO CONSIDER THE CIRCUMSTANCES AND
IS THIS A CIRCUMSTANCE IN WHICH THE BEST WAY TO DO THAT IS THE BOX. THE
BEST WAY IS THE BOX COMBINED WITH POSTERS HANDED TO THE EMPLOYEE TO PUT ON WALLS
OR IS IT COMING IN AND DOING LIVE TRAINING IN CONJUNCTION BY THE MANUFACTURER
THESE ARE THE THINGS THAT THE RESTATEMENT RULE PERMITS THE JURY TO CONSIDER. AND
OBVIOUSLY,. JUSTICE PATTERSON: SO IN WE'LL LANDS, FOR
EXAMPLE, HE'S INSTALLING BOILERS, HE'S TAKING BOILERS OUT OF BOXES. PRESUMABLY
HE CAN'T DO HIS JOB WITHOUT HANDLING THE BOX. MAYBE A VERY EFFECTIVE WAY OF DOING
THAT BUT WHAT YOU'RE SAYING IS WERE YOU'RE DEALING WITH THE ACTUAL ASBESTOS
IN BAGS, THE BAG IS A HIT OR MISS. MICHAEL A. SCODRO: THE BAG IS
A HIT OR MISS, YOUR HONOR. JUSTICE PATTERSON: AN INHERENT
DISTINCTION BETWEEN WARNING ON BAG GOES TO EMPLOYER, HANDED MAYBE TO EMPLOYEE
AND OTHER INFORMATION GOES TO EMPLOYER AND MAY BE, AT THE URGING OF THE MANUFACTURER
HANDED TO THE EMPLOYEE. MICHAEL A. SCODRO: THAT'S EXACTLY
RIGHT, YOUR HONOR. YOU COULD PUT THE LARGEST WARNING ON A BAG AND IT THE
EMPLOYER PROFILE IS TO HAVE THOSE UNLOADED AT THE DOCK AND PUT INTO BUCKETS AND
BUSH SHELLS AND SO FORTH AND IT PROCEEDS THROUGH THE PLANT,.
JUSTICE ALBIN: MAYBE HE WON'T. BUT THAT IS AN EFFORT AND HERE THE JURY FOUND WHATEVER
YOU PUT ON THE BAG WAS INADEQUATE. YOU'RE SAYING WELL HE MAY NOT SEE THE
BAG. SOMEONE ELSE MAY SEE THE BAG. BUT IF HE SAW THE BAG OR IF HIS COEMPLOYEE
SAW THE BAG OR HIS OTHER COEMPLOYEE SAW THE BAG THEY WOULDN'T HAVE THE PROPER
INFORMATION. THAT'S WHAT THE JURY FOUND. IT WAS INADEQUATE.
MICHAEL A. SCODRO: YOU'RE RIGHT, YOUR HONOR, BECAUSE THEY WERE LIMITED TO SAYING
JUST AS IF THEY HAD BEEN ARBITRARILY LIMITED TO LET'S JUST LOOK AT THE
POSTER OPTIONS OR LET'S JUST LOOK AT THE BROCHURES THAT HAD BEEN OFFERED, LET'S
JUST LOOK AT THE MSDSS BUT NONE OF THOSE CONSTITUTE THE UNIVERSE OF MATERIAL
PROVIDED AND BENDED SPOR CONSUMPTION BY THE EMPLOYEES IN THIS CASE. AND SO BY
BEING ARTIFICIALLYLY LIMITED TO ONE OF THE MANY WAYS IN WHICH THE MANUFACTURER HERE
WAS TRYING TO COMMUNICATE TO THE EMPLOYEE, BY LOOKING AT ONLY ONE IT'S NO
SURPRISE. THEY CONCLUDED THAT ONE IN ITSELF WAS INADEQUATE. THAT WAS THEIR
FINDING ON THAT PART. BUT THE PROBLEM, OF COURSE, IS THEY WERE MISS INSTRUCTED
AND THEY SHOULD NOT HAVE BEEN ASKED TO DECIDE THAT NARROW QUESTION AND INDEED WE
KNOW THEY WANT TO LOOK FURTHER BECAUSE COMMON SENSE WOULD DRIVE YOU TO LOOK
FURTHER AS A JUROR. THEY WANTED IT LOOK FURTHER, THEY ASKED A QUESTION OF THE COURTS.
CAN WE LOOK BEYOND THIS ESSENTIALLY ARE WE LIMITED TO THE BAGS IN ANSWERING
3A AND THE COURT AGAIN OVER UNION CARBIDE'S OBJECTION SAID YES LET ME BE CLEAR.
THE COURT SAID YES, ONLY THE BAGS. AND SO THAT, THE JURY REACHED YOUR HONOR,
THE CONCLUSION YOUR HONOR IS ASCRIBING BUT ONLY BE ARTIFICIALLY ISOLATED UNDER
WHAT THEY COULD CONSIDER UNDER THE FIRST OF THE TWO COFFMAN PRONGS.
JUSTICE ALBIN: THE JURY STILL HAD TO FIND THAT THE ADEQUACY WAS THE
PROXIMATE CAUSE. SO PRESUMABLY IF THEY THOUGHT THAT INADEQUATE WARNING DIDN'T
DO IT THAT SOMEHOW THE HEATING PRESUMPTION WAS OVERCOME. THEN YOUR CLIENT WOULD
NOT HAVE BEEN HELD LIABLE. MICHAEL A. SCODRO: BUT, RIGHT.
THERE'S A SEPARATE, AND I KNOW I'VE, TALK OF THIS CAME UP EARLIER AND I KNOW
THE POINT WAS MADE THAT'S NOT BEFORE THE COURT RIGHT NOW IN TERMS OF PROXIMATE CAUSE
BUT WE NEVER GET THERE, WE HAVE TO KNOW WHAT THE JURY WOULD HAVE YOU'D CLOOED
IN TERMS OF LOOK IF THEY ARE ABLE TO CONSIDER ALL OF THESE THINGS THAT WERE
PROVIDED, ALL OF TEASE MATERIALS IN TARGETING THE EMPLOYEE, WHAT WOULD
THEY HAVE CONCLUDED IN TERMS OF THE LATER ELEMENTS, WELL THAT IS WHAT WOULD
REMAIN TO BE SEEN ON REMAND ONCE YOU HAD A PROPERLY INSTRUCTED JURY ON THE WARNING.
LET ME JUST, I THINK I DID COVER BRIEFLY BUT I WOULD LIKE TO
JUST BRIEFLY RESPOND SO THERE'S NO CONFUSION THERE WAS SOME DISCUSSION BACK AND
FORTH WITH PETITIONER'S COUNSEL REGARDING THE PROPER STANDARDS AS ONE OR
MORE MEMBERS OF THE COURT NOTED THE STANDARD THAT'S NOTE ON THE FACE OF COULD HAVE
MARCH IS WHETHER THE SUPPLIER OR MANUFACTURER TOOK QUOTE REASONABLE
STEPS TO ENSURE THAT ITS WARNING REACHES EMPLOYEES, THAT IS OBVIOUSLY THE
RESTATEMENT STANDARD AS I MENTIONED ON PAGES 16 AND 17 OF PLAINTIFF'S RESPONSE
BRIEF TO THE AMICUS, THEY MAKE A POINT CITING A HANDFUL OF THE CASES, FELDMAN
I BELIEVE IS THE FIRST, I THINK ANOTHER CASE IS CITED. WHEN THEY'RE TALKING ABOUT
FOCUSING ON THE PRODUCT AND SOMETHING BEING DIFFERENT ABOUT STRICT LIABILITY
THEY ARE NOT DOING ANYTHING TO DETRACT FROM THE FACT THAT THE QUESTION IS REASONABLE
STEPS TO REACH THE EMPLOYEE. THEY'RE TALKING ABOUT THE FACT THAT WHEN IT
COMES TO STRICT LIABILITY THERE'S ONE FACTOR THAT'S DIFFERENT. AND THAT IS THAT
THE MANUFACTURER OR SUPPLIER IS PRESUMED TO KNOW THE DANGER AND I KNOW THAT'S
BEEN SOMEWHAT QUALIFIED IN SUBSEQUENT CASE LAW, PRESUMED TO KNOW THE DANGER. THAT'S
THE DIFFERENCE. THOSE CASES THEMSELVES PROCEED TO SAY THE SAME REASONABLE
STEP STANDARD APPLIES UNDER THE RESTATEMENT ON ITS FACE APPLIES TO BOTH. I
WANT TO MAKE CLEAR THERE WAS NO CONFUSION THAT SOMEHOW A DIFFERENT STANDARD
WAS IN PLAY WITH REGARD TO THE STRICT LIABILITY COUNT. IF THE COURT HAS.
JUSTICE PATTERSON: AND THAT'S CONSISTENT WITH NOT EVERY STATE
NECESSARILY BUT THAT'S CONSISTENT IN STATE LAW AROUND THE COUNTRY THAT THE
REASONABLENESS STANDARD APPLIES IN THIS SETTING. MICHAEL A.
SCODRO: THAT'S MY UNDERSTANDING, YOUR HONOR, AND IT IS THE RESTATEMENT RULE
AS WELL, YES. CHIEF JUSTICE RABNER: LET'S GO ON TO THE SECOND
ISSUE. GO AHEAD. MICHAEL A. SCODRO: THANK YOU, YOUR HONOR. SO
I'LL TOUCH UPON THE SECOND ISSUE WITH REGARD TO MEDICAL CAUSATION. A FEW POINTS
TO RAISE HERE. THERE WERE INSTRUCTIONS GIVEN OBVIOUSLY. I
BELIEVE COUNSEL QUOTED OR THE COURT MAY HAVE QUOTED SOME OF THE INSTRUCTION THAT
WAS GIVEN THAT SAID THINGS LIKE EFFICIENT CAUSE OR CAUSE THAT ISN'T REMOTE OR
TRIVIAL. THE REASON THOSE ARE INADEQUATE. THE REASON THE SHOLTIS STANDARD EXISTS
AND HAS BEEN APPLIED IN COURTS NOT JUST IN THE SUMMARY JUDGMENT STANDARD BUT IN
CASES LIKE KERR RACK AND HAS BEEN EXPANDED AND APPLIED IN CASES INVOLVING
JUDGMENT NOTWITHSTANDING THE VERDICT AND SO FORTH. THE REASON THAT THAT EXISTS
IS BECAUSE I THINK WAS MENTIONED IN THE EARLIER COLLOQUY IT HAS THE EFFECT
NOT OF SETTING LEVELS BUT OF FOCUSING JURORS ON RELEVANT FACTORS NAMELY FREQUENCY
REGULARITY AND PROXIMITY. TIME AND PHYSICAL LOCATION. AND THERE WAS SOME
QUESTIONS ASKED ABOUT WHETHER IT'S BEEN PROPERLY APPLIED IN THE CONTEXT OF MESOTHELIOMA.
WELL CLEARLY IT HAS BEEN APPLIED IN THAT CONTEXT. WE CITE KERR RACK IS
ANOTHER DECISION TO SOME UNPUBLISHED DECISIONS THAT WE CITE. THE ARE REASON FOR
THAT IS IT IS A FLEXIBLE STANDARD. BY NOT SETTING PARTICULAR LEVELS AS JAMES
RECOGNIZES BY NOT SETTING PARTICULAR LEVELS THE QUESTION OF THIS IS MESOTHELIOMA
INVOLVING A PARTICULAR TYPE OF ASBESTOS, HOW MANY PROXIMITY, HOW MUCH
REGULARITY AND FREQUENCY IS REQUIRED, IS PRECISELY AS THE COURT NOTED THAT'S SOMETHING
FOR THE EXPERTS TO DISPUTE AND INDEED IN THIS CASE WHILE THE SCIENCE CONTINUES
TO DEVELOP THERE ARE QUESTIONS ABOUT WHERE WE ARE IN THE SCIENCE, IT WAS HOTLY
DISPUTED IN THIS CASE WHETHER THE TYPE OF ASBESTOS AT ISSUE HERE, FOR EXAMPLE,
CAN EVEN BE LINKED TO MESOTHELIOMA. JUSTICE PATTERSON: TELL ME IF
I'M WRONG ABOUT THIS. SHOLTIS SIMPLY PROVIDES A FRAMEWORK. SHOLTIS DOESN'T
SAY THAT THE WORKER HAS TO HAVE FIVE YEARS OF DAILY EXPOSURE OR THE WORKER HAS
TO BE WITHIN TEN FEET. IT'S SETTING A FRAMEWORK OF WHAT CONSIDERATIONS
YOU WOULD APPLY. SO IF A PLAINTIFF'S EXPERT AS MS. LONG INDICATED I'M SURE SHE HAD
AN EXCELLENT EXERT COMES IN AND SAYS ON THIS PARTICULAR TYPE OF MESOTHELIOMA
IT CAN BE CAUSED BY EXPOSURE, LET'S USE THE MOST EXTREME TO A SINGLE FIBER ON A
SINGLE DAY. THAT'S NOT INCONSISTENT WITH SHOLTIS, IS IT? IT JUST MERELY
PROVIDES, SHOT THIS PROVIDES A FRAMEWORK UNDER WHICH A JURY COULD THEN SAY WELL
IN THIS CASE WE, I LIKED HER EXPERT. I THINK HER EXPERT WAS THE BETTER
EXPERT AND THAT EXPERT SAYS IT TAKES A MINUTE FOR THIS. MICHAEL
A. SCODRO: THAT IS PRECISELY CORRECT, YOUR HONOR AND THAT IS, JAMES RECOGNIZES
I BELIEVE IT'S JAMES THAT SAYS THERE'S NOT A LEVEL SET BY THIS STANDARD. RATHER,
IT IS A FRAMEWORK PRECISELY AS YOUR HONOR DESCRIBED IT. IT'S A FRAMEWORK TO FOCUS
JURORS ON SOMETHING OTHER THAN JUST HEARING THE PHRASE, FOR EXAMPLE, HERE
EFFICIENT CAUSE. JUSTICE ALBIN: SO WHY ISN'T THE LANGUAGE THAT
THE JUDGE GAVE AND THAT WAS CITED BY YOUR ADVERSARY ACCOMPLISHED THE SAME GOAL, CAN'T
BE CASUAL, CAN'T BE MINIMAL, CAN'T BE GUESSWORK AND MUST BE BE A SUBSTANTIAL
FACTOR. WHY DOESN'T THAT, THERE'S MORE TO THE CHARGE, BUT WHY ISN'T THAT CONVEYING
WHAT THE JURY NEEDS TO KNOW AND WHY ISN'T THAT BASICALLY JUST ANOTHER SUBSTITUTE
FOR SHOLTIS? MICHAEL A. SCODRO: SHOLTIS ITSELF RECOGNIZES
AT LEAST IMPLICITLY IN COMING UP WITH A STANDARD. SO MANY COURTS HAVE RECOGNIZED
SINCE APPLYING IT AND TRYING TO WALK THROUGH IT AND DECIDE WHETHER THERE
WAS ENOUGH EVIDENCE. WHAT'S MISSING IT IDENTIFIES SORT OF A GENERAL SENSE OF
REQUIRING SOMETHING, NOT NOTHING. BUT IT DOESN'T IDENTIFY WHAT KINDS OF
FACTORS IT DOESN'T IDENTIFY THE TEMPORAL FACTOR THAT REGULARITY AND FREQUENCY.
THAT'S ABOUT TIME. SO IT DOESN'T IDENTIFY DISTANCE. IT DOESN'T SAY, OKAY,
JURORS CONSIDER DISTANCE,. JUSTICE ALBIN: SO LET'S TAKE TIME. YOU
CAN HELP ME OUT BECAUSE I DON'T KNOW THE SCIENCE HERE. BUT WE'VE HEARD SOME
STATEMENTS THAT EVEN A SMALL AMOUNT OF EXPOSURE TO CERTAIN FIBERS WILL RESULT IN
MESOTHELIOMA. AND SO LONG AMOUNT OF TIME ISN'T THAT, SMALL AMOUNTS OF TIME,
SMALL AMOUNT OF EXPOSURE IS THAT PART OF THE SCIENCE? MICHAEL A.
SCODRO: MY UNDERSTANDING OF THE SCIENCE, YOUR HONOR, IS THAT IT IS DEPENDING ON THE
TYPE, AND THERE ARE DIFFERENT TYPES OF ASBESTOS AND SO FORTH, THAT DEPENDING
ON THE TYPE MY UNDERSTANDING IS THAT THE SCIENCE REMAINS CONTESTED AND THAT YOU
MAY WELL HAVE AN EXPERT SAY EXACTLY THE WORDS YOUR HONOR JUST SAID WITH REGARD
TO WHATEVER ASBESTOS TYPE IS AT ISSUE IN A CASE. AND UNDER THOSE CIRCUMSTANCES
A PROPERLY INSTRUCTED JURY JUROR YOU HAVE THE PLAINTIFF'S LAWYER SAYING
YOU HEARD OUR EXPERT. ONE IS ENOUGH. SO WHEN IT COMES TO FREQUENCY, THE ANSWER
IS ONE. WHEN IT COMES TO REGULARITY, YOU DON'T NEED REGULARITY AND WHEN IT
COMES TO PROXIMITY YOU HEARD OUR EXPERT SAY ANYWHERE IN THE SAME HUGE ROOM IS
SUFFICIENT. AND THEN QUEUED HAVE THE DEFENSE MAKE THEIR COUNTER POINTS BASED ON
WHAT THEIR EXPERT HAS SAID AND THE REASON THAT THIS IS A PROPER AND FLEXIBLE,
THE REASON IT'S A PROPER STANDARD IS IT'S A REFLECT ABOUT STANDARD IS BECAUSE IT
PERMITS PRECISELY, THE JURORS HAVE TO -- WE CAN'T PRESUME THAT ONE OR THE
OTHER EXPERT IS CORRECT AND CRAFT THE INSTRUCTION BASED ON THAT. THIS PERMITS
THE JURORS TO DECIDE WERE THEY THINK IS CORRECT AND TO USE THIS FRAMEWORK
TO CHANNEL THEIR THINKING. THAT AVOID THE GUESSWORK THAT SHOLTIS ITSELF SAYS WE
HAVE IT AVOID. JUSTICE PATTERSON: THAT CASE IS NOT REALLY
EXCUSED TOWARD EITHER PARTY IS IT? IT'S NOT A KEEP THEM AWAY FROM THE JURY
KIND OF STANDARD. IT IS SIMPLY RECOGNIZING THAT YOU KNOW LIKE A WORKPLACE
ACCIDENT WITH A MACHINE, UNLIKE MANY CONSUMER PRODUCTS THAT, YOU KNOW,
HAVE, HAVE SOMEBODY HURT WITH AN ORTHOPEDIC INJURY OR SOMETHING ALONG THOSE LINES,
THESE ARE EXPOSURE TO MY OR MAY NOT TAKE CERTAIN AMOUNTS OF TIME AND IN THIS
CASE LISTEN TO THE EXPERTS DECIDE IF YOU REJECT OR ACCEPT THEM.
MICHAEL A. SCODRO: CORRECT, YOUR HONOR. TO YOUR POINT WHILE WE CAN'T SEE WHAT
GOES ON IN A JURY ROOM WE CAN READ AN OPINION AND SEE THAT A COURT APPLYING
THAT STANDARD BEGINS WITH THE JNOV CONTEXT POST VERDICT FINDS THAT SOME OF THE EXPOSURE,
YUP ENOUGH WAS SHOWN ON THE RECORD IN THAT CASE ENOUGH WAS SHOWN TO SATISFY
SHOLTIS AS TO ANOTHER, FOR EXAMPLE, A DIFFERENT MANUFACTURER INSUFFICIENT. THE
SAME STANDARD, ABSOLUTELY CAN CUT BOTH WAYS. IT DEPENDS ON WHAT THE SCIENCE
RECORD LOOKS LIKE IN THAT CASE. CHIEF JUSTICE RABNER: ANYTHING ELSE
YOU'D LIKE TO ADD TO YOUR ARGUMENT? MICHAEL A. SCODRO: THANK YOU,
YOUR HONOR. I'M LOOKING VERY BRIEFLY AT MY NOTES, IF I MAY. CHIEF
JUSTICE RABNER: GO HE. TAKE A MINUTE. MICHAEL A. SCODRO:
THANK YOU. THE ONLY THING I WOULD ADD, YOUR HONOR, VERY VERY
QUICKLY THERE WAS SOME DISCUSSION OF HARMLESS ERROR AND WE WOULD REITERATE A POINT
MADE IN OUR BRIEFS THAT UNDER THIS COURT'S DECISION THAT WASHINGTON AND OTHERS
THAT THE PRESUMPTION IS THAT WHEN THERE IS MATERIAL ERROR ON THE FACE OF A JURY
INSTRUCTIONS THAT IT IS PREJUDICIAL AND THAT THE STANDARD IS APPROPRIATELY
A LOW ONE. COULD THE JURY HAVE COME TO A DIFFERENT RESULT AND WE WOULD RESPECTFULLY
ARGUE THAT THAT IS THE CASE AS TO EVERYTHING INSTANCE.
CHIEF JUSTICE RABNER: THANK YOU VERY MUCH. MS. LONG A FEW SUCCESS SING
POINTS IF REBUTTAL. MS. LONG: I'LL TRY TO BE BRIEF, I'LL GO TO THE
ISSUE THAT WE JUST LEFT OFF WITH WITH SHOLTIS, I'LL JUST MAKE A COUPLE OF POINTS IN RESPONSE
TO COUNSEL AND IN RESPONSE TO THE QUESTION THAT YOUR HONORS PROPOUNDED DURING HIS
PRESENTATION. I THINK THAT IT'S IMPORTANT TO RECOGNIZE THAT THERE'S A DIFFERENCE BETWEEN
EXPERTS GIVING COMPETING TESTIMONY ABOUT CAUSATION AND THE COURT ENDORSING A CERTAIN
STANDARD WHEN IT INSTRUCTS THE JURY. SO FOR INSTANCE, COUNSEL WAS SAYING, YOU KNOW, THE
COURT REQUEST INSTRUCT THE JURY THAT YOU NEED SUFFICIENT, REGULARITY, PROXIMITY AND
FREQUENCY BUT THEN PLAINTIFF'S EXPERT CAN COME IN AND SAY REGULARITY DOESN'T MATTER.
IF THE SCIENCE IS REGULARITY DOESN'T MATTER AS RECOGNIZED, IT MAY BE CONTESTED BY
DEFENDANT'S EXPERTS SHS BUT AS RECOGNIZED BY OUR COURTS IN KURAK AND OTHER CASES, IF THE
SCIENCE IS THAT REGULARITY ISN'T A LARGE FACTOR IN MESOTHELIOMA, THEN THE INSTRUCTION
HAS TO ENCOMPASS THAT, IT CAN'T JUST SAY YOU HAVE TO PROVE SUFFICIENT REGULARITY, FREQUENCY
AND PROXIMITY AND THEN LEAVE IT TO A PLAINTIFF AND THEIR EXPERT TO SAY REGULARITY DOESN'T
MATTER. HOW DOES A JURY UNDERSTAND OR HOW DO THEY BELIEVE A PLAINTIFF'S EXPERT THAT
REGULARITY DOESN'T MATTER WITH RESPECT TO MESOTHELIOMA IF THE COURT IS TELLING THEM,
YOU HAVE TO FIND SUFFICIENT REGULARITY. SO I THINK THAT'S VERY WELL --
JUSTICE PATTERSON: ISN'T THAT THE WAY TSDZ PHRASED, COULDN'T IT BE PHRASED AS YOU SHOULD
CONSIDER THESE FACTORS IN DETERMINING WHETHER THE PLAINTIFF HAS MET THEIR BURDEN.
MS. LONG: I THINK THAT WOULD BE AN EXCELLENT QUESTION GOING FORWARD IN AS AMICI COUNSEL
FOR THE N.J. A J SUGGESTED IN CONSIDERING WHETHER THE MODEL JURY CHARGE SHOULD BE CHANGED
TO INCLUDE THAT LANGUAGE IN TOXIC TORT, BUT I DON'T THINK ADDING THAT OR THE EXCLUSION
OF THAT LANGUAGE MADE THE CHARGE THAT THE JUDGE GAVE IN THIS CASE ERROR. JUSTICE
PATTERSON: JUST TO SUM UP ON THAT, WOULD YOU AGREE, AND I UNDERSTAND YOU'VE GOT AN ISSUE
IN THIS CASE APPELLATE DIVISION'S DECISION SENDING IT BACK FOR A NEW TRIAL, BUT WOULD YOU
AGREE THAT A CHARGE THAT NEUTRALLY GUIDED THE JURY TO CONSIDER THOSE FACTORS IS NOT ONLY
CONSISTENT WITH SHOLTIS AND JAMES, BUT WOULD ALSO POTENTIALLY, DEPENDING ON THE CASE,
MAY ACTUALLY BE HELPFUL TO A PLAINTIFF, AS WELL AS A DEFENDANT. THERE'S NOTHING INHERENTLY
UNFAIR ABOUT SHOLTIS. MS. LONG: AGAIN, IF IT'S MODIFIED BY THE KWUR RACK
LANGUAGE AND WAS DONE IN ADVANCE BY THE COMMITTEE SO THAT IT WAS PART OF OUR MODEL JURY
CHARGES SO THAT A TRIAL JUDGE HAD THAT GUIDANCE WHEN SHE INSTRUCTED THE JURY, I'M NOT
PHILOSOPHICALLY OPPOSED TO INCLUDING SOME SORT OF CHARGE THAT WOULD BE FAIR, BUT THE APPELLATE
DIVISION HASN'T CONSIDERED ALL OF THOSE SIDES, THERE HASN'T BEEN THAT OPPORTUNITY FOR A
PROCESS WHERE ALL INTERESTED PARTIES CAN RAISE THE SCIENTIFIC ISSUES, CAN RAISE THESE
ISSUES AND WE CAN HAVE THE TYPE OF PROCESS THAT THE COURT ENDORSES WHEN IT DISCUSSES THE
MODELS JURY INSTRUCTIONS. TURNING BACK TO THE FIRST ISSUE, IT IS NOT PLAINTIFF
'S PETITIONER'S POSITION THAT IT IS ONLY THE WARNINGS ON BAGS EVER IN EVERY CASE, I JUST
WANT TO MAKE CLEAR THAT IN THIS CASE THE FACTS WERE THAT UNION CARBIDE ONLY COMMUNICATION
WITH THE PRODUCT USERS, THE ONLY THING THAT WAS ON OR ACCOMPANIED THE PRODUCT, WAS THE
PRODUCT LABEL ON THE BAGS, SO THAT'S WHY THE FOCUS -- WHY THE COURT LEFT THE -- WHEN THE
JURY ASKED WHY SHE LET THEM KNOW THAT IT WAS ONLY THE BAGS THAT THEY SHOULD CONSIDER.
SO IF THE MANUFACTURER HAS MADE OTHER COMMUNICATIONS WITH THE PRODUCT USER, AND IF
THAT WERE THE FACTS OF THE CASE, THE JURY COULD CONSIDER THAT. AND YOUR HONOR RAISED THE
QUESTION OF WHETHER UNION CARBIDE HAS THE ABILITY TO GO IN AND PUT UP POSTERS. UNION
CARBIDE ALWAYS HAS THE ABILITY TO NOT SELL ITS ASBESTOS TO AN EMPLOYER THAT WON'T TAKE
THE SAFETY MEASURES THAT IT ASKS IT TO. SO IT DOES HAVE SOME CONTROL IF IT SAYS WE WILL
ONLY SELL YOU OUR ASBESTOS IF WE CAN COME IN AND MAKE SURE THAT YOU HUNG THESE POSTERS
OR HANDED OUT THESE PAMPHLETS, IT CAN MAKE THAT CHOICE. JUSTICE PATTERSON:
THIS GOES THROUGH A DISTRIBUTION NETWORK, DOES IT NOT, PRESUMABLY THERE ARE INDUSTRIAL
DISTRIBUTORS, UNION CARBIDE ZEALOUS TO DISTRIBUTORS. MS. LONG:
PRIMARILY THEY'RE SOLD DIRECTLY, THERE ARE A FEW DISTRIBUTORS, BUT PRIMARILY ALL OF THEIR
SALES WERE DIRECT TO MR. EDENFIELD'S EMPLOYERS, AND EVEN IF THEY HAD DISTRIBUTORS THEY COULD
MAKE AGREEMENTS WITH THEM TO MAKE SURE THAT COMMUNICATIONS DIRECTLY TO THE PRODUCT USER
WERE PUT IN PLACE. AND SO I JUST WANT TO TAKE AWAY SOME OF THAT DICHOTOMY THAT IT'S ONLY
ON THE BAGS, THAT'S THE ONLY THING THEY CAN EVER DO, THERE ARE WAYS TO COMMUNICATE WITH
THE EMPLOYER OR EMPLOYEE. AND AGAIN I WANT TO ADDRESS THE SAFETY POINT, COFFMAN ADDRESSES
THIS ISSUE OF WARNINGS IN THE WORK PLACE, IT CAME UP WITH THE DUAL DUTY TO ADDRESS ALL
THESE ISSUES OF WHAT'S THE BEST WAY TO WARN AN EMPLOYEE AND HOW DO WE GET MULTIPLE FORCES
OF WARNINGS IN PLACE, AND IT SAID YOU HAVE TO DO BOTH, IT TALKS ABOUT A CONCURRENT DUTY
TO WARN BOTH. AND THE RULE THAT WAS ADOPTED BY THE APPELLATE DIVISION WOULD ALLOW THE
WARNINGS TO THE EMPLOYER TO COMPLETELY REPLACE THE WARNINGS TO EMPLOYEE. INDEED YOU CAN
HAVE A CASE WHERE THERE IS, LIKE THIS ONE, A MAT TENTLY INADEQUATE WARNING ON THE PRODUCT,
AND THE MANUFACTURER CAN ESCAPE LIABILITY BASED ON WHAT THEY TOLD THE EMPLOYER. YOU CAN
HAVE A DEFECTIVE PRODUCT WITH NO WARNING ON IT AND THEY COULD AVOID LIABILITY, AND THERE IS
A DIFFERENCE, EVEN THOUGH THE BAGS GOES TO THE EMPLOYEE, AND THIS IS DISCUSSED IN THE
WAY LYNN CASE, THE POINT OF INJURY, THE POINT WHERE THE WARNING NEEDS TO APPEAR, IS WHEN
THE EMPLOYEE PICKS UP THAT BAG OF ASBESTOS, TAKES IT OUT OF THE SHRINK WRAPPED PALLET,
OPENS IT UP, POURS IT, THAT IS AN EXCELLENT OPPORTUNITY TO GET THAT WARNING TO THE
PRODUCT USER AT THE CRITICAL MOMENT WHEN THEY'RE BEING EXPOSED TO THE ASBESTOS, AND AS
THE COURT HAS RECOGNIZED THERE IS NO BURDEN OR AN EXCEEDINGLY MINIMAL BURDEN ON THE PRODUCT
MANUFACTURER TO PUT SUCH A WARNING IN PLACE. FINALLY JUST TO ADDRESS THE
COUNSEL'S CHARACTERIZATION OF FRUND AND O'BRIEN, THOSE CASES DID NOT DEAL WITH THE --
SOLELY WITH THE ISSUE OF WHETHER WE IMPUTE KNOWLEDGE TO A MANUFACTURER OR NOT. FRUND
WAS SPECIFICALLY ABOUT THE ISSUE OF WHETHER IT WAS ERROR FOR A JURY IN A FAILURE TO WARN
CASE TO GET ONLY NEGLIGENCE INSTRUCTIONS, AND THE COURT FOUND THAT THAT WAS ERROR BECAUSE
THE JURY COULD HAVE FOUND THAT A MANUFACTURER WHO CAREFULLY PRODUCES ITS PRODUCTS IS NOT
LIABLE EVEN IF THE PRODUCT WAS UNSAFE, AND THE COURT SAID THAT RESULT IS NOT OKAY UNDER
STRICT LIABILITY. AND IN O'BRIEN IT SAID THAT A MVR ERR THAT PRODUCES DEFECTIVE PRODUCTS
IS LIABLE EVEN IF THOSE PRODUCTS WERE CAREFULLY PRODUCED AND IN FRUND IT SAID THAT IF
THE WARNING IS INADEQUATE AND THE PRODUCT IS STILL SAFE, THE MANUFACTURER CANNOT BE
RELIEVED SIMPLY BECAUSE THEY WERE CAREFUL AND REASONABLE, WHICH IS EXACTLY WHAT THE AVP
HAS ADOPTED HERE AND WHAT THIS COURT SHOULD REJECT FOLLOWING OUR LONGSTANDING, STRICT
PRODUCT LIABILITY FAILURE TO WARN CASE LAW. THANK YOU. CHIEF JUSTICE
RABNER: THANK YOU, MISS LONG, AND THANK YOU TO ALL COUNSEL, YOUR PREPARATION AND COMMAND
OF THE ISSUES WAS EVIDENT, I APPRECIATE THE VERY SOMETHING ARGUMENT AND PRESENTATIONS
THIS AFTERNOON, THE COURT IS IN RECESS FOR THE DAY.