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BESHADA v. JOHNS-MANVILLE PRODUCTS CORP.

90 N.J. 191 (1982)

447 A.2d 539

EDWARD J. BESHADA, BY HIS ADMINISTRATRIX AD PROSEQUENDUM, ELEANOR BESHADA; ELEANOR BESHADA, EXECUTRIX OF THE ESTATE OF EDWARD J. BESHADA, DECEASED; GEORGE J. BURDAK AND ROSE BURDAK, HIS WIFE; JAMES D. CANNON AND BERTHA CANNON, HIS WIFE; RAYMOND D. CREED AND MARY CREED, HIS WIFE; STANLEY J. DROZD AND ROSE DROZD, HIS WIFE; HENRY J. GROBELNY AND PEARL GROBELNY, HIS WIFE; THADDEUS KASUBINSKI AND AGNES KASUBINSKI, HIS WIFE; MICHAEL KRUK; STEPHEN KUZMACK AND AMELIA KUZMACK, HIS WIFE; JOHN G. ORSAG AND SUSAN ORSAG, HIS WIFE; JOHN PLEVA AND ANN PLEVA, HIS WIFE; PAUL RARUS; STANLEY F. SAKOWSKI AND FLORENCE SAKOWSKI, HIS WIFE; BERNARD SCULLY AND MARCELLA SCULLY, HIS WIFE; JOSEPH P. SLEZAK AND JOSEPHINE SLEZAK, HIS WIFE; ARTHUR J. WALCZAK AND CATHERINE WALCZAK, HIS WIFE; DOUGLAS WHITAKER AND ELEANOR WHITAKER, HIS WIFE; HENRY WONDOWSKY AND HELEN WONDOWSKY, HIS WIFE; ALBERT F. SZCZEPANIK AND SOPHIE B. SZCZEPANIK, HIS WIFE; STANLEY GOLEMBIESKI, EXECUTOR OF THE ESTATE OF WALTER GOLEMBIESKI; AND HENRY V. KOWALESKI AND JANE KOWALESKI (FIRST NAME BEING FICTITIOUS), HIS WIFE, PLAINTIFFS-APPELLANTS, v. JOHNS-MANVILLE PRODUCTS CORPORATION; EAGLE-PICHER INDUSTRIES, INC.; MADSEN-HOWELL, INC.; RAYBESTOS-MANHATTAN, INC.; GAF CORPORATION AND UNARCO INDUSTRIES, DEFENDANTS-RESPONDENTS, AND STATE INSULATION CORP., ET AL., DEFENDANTS. FRANK J. JARUSEWICZ AND MARY JARUSEWICZ, HIS WIFE; ROBERT J. RUTKOWSKI AND CAROLINE S. RUTKOWSKI, HIS WIFE; MICHAEL J. LEONARD AND ALFONSINA J. LEONARD, HIS WIFE; RUSSELL J. HAHN, AND JEAN HAHN, HIS WIFE; JERRY E. COVELL AND ALICE COVELL, HIS WIFE; HENRY J. KELEHER; HARRISON LARSEN; GEORGE W. OGBORNE AND JOAN OGBORNE, HIS WIFE; STANLEY R. PIATEK AND GLORIA J. PIATEK, HIS WIFE; MARTIN ROSENTHAL AND HELEN ROSENTHAL, HIS WIFE; JOHN O'BRIEN AND MARIJANE O'BRIEN, HIS WIFE; JOSEPH ZAKRZEWSKI AND IRENE A. ZAKRZEWSKI, HIS WIFE; ERNEST C. WEIBRECHT AND GAIL M. WEIBRECHT, HIS WIFE; WILLIAM MADELINE AND CHRISTINE T. MADELINE, HIS WIFE; CARLTON HOLTSLANDER AND JANE D. HOLTSLANDER, HIS WIFE; ALEXANDER HARANSKY AND DOROTHY HARANSKY, HIS WIFE; LAWRENCE A. MIZAK AND ANNA H. MIZAK, HIS WIFE; WARREN H. RAPPLEYEA, BY HIS ADMINISTRATRIX AD PROSEQUENDUM, KATHLEEN J. RAPPLEYEA; AND KATHLEEN J. RAPPLEYEA, EXECUTRIX OF THE ESTATE OF WARREN H. RAPPLEYEA, DECEASED, PLAINTIFFS-APPELLANTS, v. JOHNS-MANVILLE PRODUCTS CORPORATION; A.P. GREEN REFRACTORIES CO.; METROPOLITAN REFRACTORIES, DIVISION OF A.P. GREEN REFRACTORIES CO.; QUIGLEY CO., SUBSIDIARY OF PFIZER, INC.; EAGLE-PICHER INDUSTRIES, INC.; MADSEN & HOWELL, INC.; OWENS-ILLINOIS, INC. AND UNARCO INDUSTRIES, INC., DEFENDANTS-RESPONDENTS, AND J.H. FRANCE REFRACTORIES CORP., ET AL., DEFENDANTS. JOHN HANN AND MARY HANN, HIS WIFE; MICHAEL HOMYAK AND MARY HOMYAK, HIS WIFE; STANLEY J. NOWAKOWSKI AND ANN NOWAKOWSKI, HIS WIFE; DANIEL J. PUNTILLO AND DOROTHY PUNTILLO, HIS WIFE; JAMES A. THOMAS AND ANNA THOMAS, HIS WIFE; THADEUSZ FAIST AND BARBARA FAIST, HIS WIFE, PLAINTIFFS-APPELLANTS, v. JOHNS-MANVILLE SALES CORPORATION; EAGLE-PICHER INDUSTRIES, INC. AND OWENS-ILLINOIS, INC., DEFENDANTS-RESPONDENTS, AND PORTER HAYDEN CO., ET AL., DEFENDANTS. PETER BLAZEWICZ; VINCENT S. DMUCHOWSKI, SR. AND FRANCES DMUCHOWSKI, HIS WIFE; SPASE C. ELICK AND GERALDINE ELICK, HIS WIFE; FRANK R.T. LEE AND TERESA LEE, HIS WIFE; DAVID F. LINDSAY AND JANE LINDSAY, HIS WIFE; ALBERT F. MARRAPODI AND JANE MARRAPODI (FIRST NAME BEING FICTITIOUS), HIS WIFE; SALVATORE J. PALUMBO; NICHOLAS R. SOMMA AND IDA SOMMA, HIS WIFE; JOSEPH R. TROZZO AND JENNIE TROZZO, HIS WIFE; STANLEY S. WINNICKI AND JOSEPHINE WINNICKI, HIS WIFE; JOHN W. BARBER AND IRENE BARBER, HIS WIFE; JUSTIN D. FOLLO, SR., AND FLORENCE FOLLO, HIS WIFE; JAMES W. PAPP, AND ANNA PAPP, HIS WIFE, PLAINTIFFS-APPELLANTS, v. JOHNS-MANVILLE SALES CORPORATION; EAGLE-PICHER INDUSTRIES, INC. AND OWENS-ILLINOIS, INC., DEFENDANTS-RESPONDENTS, AND PORTER HAYDEN CO., ET AL., DEFENDANTS. DOROTHY BECKWITH, AS ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF EARL BECKWITH, PLAINTIFF-APPELLANT, v. JOHNS-MANVILLE SALES CORPORATION, SUCCESSOR TO AND IN LIEU OF JOHNS-MANVILLE PRODUCTS CORPORATION; JOHNS-MANVILLE CANADA, INC., FORMERLY KNOWN AS CANADIAN JOHNS-MANVILLE CO., LTD., CANADIAN JOHNS-MANVILLE AMIANTE, LTD., FORMERLY CANADIAN JOHNS-MANVILLE ASBESTOS, LTD., JOHNS-MANVILLE CORPORATION, UNARCO INDUSTRIES, FORMERLY KNOWN AS UNION ASBESTOS & RUBBER COMPANY; EAGLE-PICHER INDUSTRIES, INC., AND OWENS-ILLINOIS, INC., DEFENDANTS-RESPONDENTS, AND JOHN DOE CORPORATION, ET AL., DEFENDANTS. MARY CRILLEY, AS ADMINISTRATRIX OF THE ESTATE OF JAMES CRILLEY, AND MARY CRILLEY, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. ARMSTRONG CORK, ET AL., DEFENDANTS, AND EAGLE-PICHER INDUSTRIES, INC.; JOHNS-MANVILLE CORP.; JOHNS-MANVILLE SALES CORP.; JOHNS-MANVILLE PRODUCTS CORP.; OWENS-ILLINOIS, INC. AND RAYBESTOS-MANHATTAN, INC., DEFENDANTS-RESPONDENTS.

The Supreme Court of New Jersey.

Decided July 7, 1982.

Attorney(s) appearing for the Case

Alan M. Darnell argued the cause for appellants Beshada, et al. (Wilentz, Goldman & Spitzer, attorneys; Alan M. Darnell, Karen Ann Kubulak and Christopher M. Placitella, on brief).

Bryan D. Garruto argued the cause for appellant Beckwith (Heilbrunn, Finkelstein, Heilbrunn, Garruto & Galex, attorneys).

Ronald B. Grayzel argued the cause for appellants Crilley (Levinson, Conover, Axelrod & Wheaton, attorneys).

David R. Gross argued the cause for respondents Johns-Manville Products Corporation, Johns-Manville Sales Corporation, successor to and in lieu of Johns-Manville Products Corporation and Johns-Manville Canada, Inc., formerly known as Canadian Johns-Manville Co. Ltd., Canadian Johns-Manville Amiante Ltd., formerly Canadian Johns-Manville Asbestos Ltd., Johns-Manville Corporation (Budd, Larner, Kent, Gross, Picillo & Rosenbaum, attorneys; David J. Novack and Sebastian P. Lombardi, on the brief).

Kathleen F. Moran argued the cause for respondent Raybestos-Manhattan, Inc. (Morgan, Melhuish, Monaghan & Spielvogel, attorneys).

Andrew T. Berry argued the cause for respondent Owens-Illinois, Inc. (McCarter & English, attorneys; Andrew T. Berry and Michael A. Tanenbaum, on the brief).

Philip V. Lago submitted a brief on behalf of respondent GAF Corporation (Hannoch, Weisman, Stern, Besser, Berkowitz & Kinney, attorneys; Anthony J. Marchetta, of counsel).

William R. Connelly submitted a brief on behalf of respondent Quigley Co., Inc., subsidiary of Pfizer, Inc. (Ravin, Davis & Sweet, attorneys).

Dennis F. Carey submitted a brief on behalf of respondent Unarco Industries, Inc., also referred to as Unarco Industries, formerly known as Union Asbestos & Rubber Company (Dwyer, Connell & Lisbona, attorneys).

Peter W. Sachs submitted a letter in lieu of brief on behalf of respondents A.P. Green Refractories Co. and Metropolitan Refractories, Division of A.P. Green Refractories Co. (Sachs & Sachs, attorneys).

James F. McNaboe submitted a letter in lieu of brief on behalf of respondent Eagle-Picher Industries, Inc. (Schwartz and Andolino, attorneys).

William J. Gannon submitted a letter in lieu of brief on behalf of respondent Madsen & Howell, Inc. (Ryan and Gannon, attorneys).

Ronald S. Suss submitted a brief on behalf of amicus curiae Karl Asch, Esq. (Karl Asch, attorney; Ronald S. Suss and Karl Asch, on the brief).

The Opinion of the Court was delivered by PASHMAN, J.

The sole question here is whether defendants in a product liability case based on strict liability for failure to warn may raise a "state of the art" defense. Defendants assert that the danger of which they failed to warn was undiscovered at the time the product was marketed and that it was undiscoverable given the state of scientific knowledge at that time. The case comes...

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