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Sunday, July 3, 2022

NJ Supreme Court Enhances Workplace Safety and Adopts an Updated Standard for Medical Causation

A divided NJ Supreme Court upheld a verdict for an employee who suffered mesothelioma, a fatal cancer, as a result of a product manufacturer’s failure to warn of the lethal nature of the product in the workplace. The Court acknowledged that even minor exposure to asbestos could cause disease.

An asbestos manufacturer or supplier that places inadequate warnings on asbestos bags used in the workplace has a  duty to warn the worker, regardless of whether it provides the employer with the correct information, which is reasonably intended to reach its employees. The Court recognized that even low levels of asbestos exposure might cause mesothelioma. A jury awarded the estate $2,380,000 in economic damages. Punitive damages were not considered at the trial.


The decision emphasized a judicial effort to make the workplace safer and shift the economic responsibility from the employer to the ultimate wrongdoer, the supplier of the lethal product. While the workers’ compensation system is remedial social legislation crafted over a century ago, it does not provide sufficient economic incentive to make the workplace safer and offer adequate damages to make the worker and his dependents whole from the loss created by an unsafe workplace.

“Amicus the New Jersey Association for Justice echoes the arguments advanced by plaintiff. The Association emphasizes that “warnings conveyed by the manufacturer directly to workers are necessary to ensure their safety” and that allowing a manufacturer to discharge its duty by simply warning the employer will profoundly limit an injured employee's remedies to those afforded under the Workers’ Compensation Act, N.J.S.A. 34:15-7 to -35.22.”

The occupationally exposed employee worked at an adhesive manufacturing plant in Bloomfield NJ between 1954 and 1994. Union Carbide, an asbestos supplier, shipped over fifty-six thousand pounds of Calidria brand asbestos packaged in ten- and forty-pound bags to the plant. The worker handled the raw asbestos fiber and ultimately developed mesothelioma and died before the civil trial against Union Carbide.

Justice Albin, speaking for the majority of Court noted, “Union Carbide knew that asbestos exposure causes cancer. Placing adequate warnings on asbestos bags was clearly feasible, yet Union Carbide chose not to do so. Union Carbide therefore deprived Edenfield of critical information -- information that would have allowed him to make vital decisions concerning his life and health. A properly warned worker can undertake protective measures to minimize the risk of exposure or decide not to continue employment in a job handling toxic substances. Adequate warnings provide workers with a choice. Adequate warnings promote worker safety; inadequate warnings can endanger a worker's life.”


The Court recognized that even a low level of asbestos exposure can cause mesothelioma.

“The frequency, regularity, and proximity of exposure to a toxic substance necessary to cause a disease, therefore, will depend on the peculiar characteristics of the toxic substance and the disease induced. Certain substances are much more toxic than others and have a much greater capacity to cause deadly diseases, even if exposure is relatively minimal. For example, “[m]alignant mesothelioma can develop after short-term asbestos exposures of only a few weeks, and from very low levels of exposure. There is no evidence of a threshold level below which there is no risk for mesothelioma.” Mazurek, 66 Morbidity & Mortality Wkly. Rep. at 215.”

The decision represents a significant effort by the Court to make the workplace safer. It recognizes that limited economic incentives generated by workers’ compensation programs fail to accomplish that end and the ultimate wrongdoers, the product manufacturers should be held accountable. In imposing greater liability on product manufacturers, the Court has strengthened the effort to establish a safer and healthier workplace.


Thomasenia L. Fowler v. Akzo Nobel Chemicals, Inc. (A-5-21) (085939) Argued January 19, 2022 -- Decided June 30, 2022

ALBIN, J., writing for the Court.

In this appeal, the Court considers whether a manufacturer or supplier that puts inadequate warnings on its asbestos products used in the workplace can fulfill its duty to warn by disseminating adequate information to the employer with the intention that such information will reach the workers using those products. The Court also considers whether, in charging on medical causation in this mesothelioma case, the trial court was required to give the frequency, regularity, and proximity language in Sholtis v. American Cyanamid Co., 238 N.J. Super. 8, 28-29 (App. Div. 1989), rather than the substantial factor test in the Model Civil Charge, as modified by the court.

In June 2011, Thomasenia Fowler -- as administrator of her husband Willis Edenfield’s estate -- initiated a wrongful death/product liability action against Union Carbide, a manufacturer and supplier of asbestos that Edenfield handled as a daily part of his 40-year job at an adhesive manufacturing plant (the Bloomfield Plant).

In 1968, Union Carbide began placing a warning on its asbestos bags. In compliance with an emergency standard imposed by the Occupational Safety and Health Administration, the company changed the warning in 1972 to state: “CAUTION Contains Asbestos Fibers Avoid Creating Dust Breathing Asbestos Dust May Cause Serious Bodily Harm.” National government organizations had recommended upgraded warnings, as did an association to which one of the doctors from Union Carbide’s medical department belonged. An in-house staff-member of Union Carbide also notified the company that it's warning inadequately addressed the lethal dangers of asbestos exposure. Union Carbide declined to upgrade its label.

Union Carbide presented evidence that it periodically provided information and various safety warnings about its asbestos products to Edenfield’s employers and requested that the information and warnings be made available to the employees. Over the course of years, Union Carbide forwarded to its “Calidria” customers such items. In its Appellate Division brief, Union Carbide highlighted that the Plant’s operators declined its offer “to monitor the Plant’s air quality” and “disseminate the warnings” to employees.

At trial, each side presented differing opinions about the danger posed by Calidria asbestos and the degree of exposure necessary to cause mesothelioma. Plaintiff’s expert testified that the greater the asbestos exposure, the greater the likelihood of contracting mesothelioma -- but emphasized that even “short exposures to asbestos cause mesothelioma.” She concluded that Edenfield’s exposure to Union Carbide’s asbestos was a substantial factor in his contracting the deadly disease. Union Carbide presented the testimony of three experts who agreed that Edenfield’s exposure to the asbestos was not of a high enough dose to be a substantial factor.

The trial court instructed the jury. As to the duty to warn, the court made clear that Union Carbide could be held liable either for failing to place adequate warnings on its Calidria asbestos bags or to disseminate proper warnings and information to the Bloomfield Plant intended for its employees. Union Carbide objected to those instructions, arguing that the jury could find that, even if the warnings on the asbestos bags were inadequate, Union Carbide was not liable if it provided the employer warnings and information “with the intention or purpose that the employer alert employees to the dangers of the product and the proper methods of mitigating the” associated risks.

As to medical causation, the court instructed that the jury would have to find that “the failure to warn [was] a substantial factor which singly, or in combination with another cause, brought about the injury.” The court stressed that liability should not attach based on casual or minimal contact with the product and should not be imposed on mere guesswork. The trial court rejected Union Carbide’s proposed charge on medical causation, which would have required plaintiff to “prove that Mr. Edenfield was exposed to [Union Carbide’s] product with sufficient frequency, with a regularity of contact, and with the product in close enough proximity to show that the exposure . . . was a substantial contributing factor to Mr. Edenfield’s mesothelioma.” (emphasis added).

The jury found for plaintiff, concluding that (1) Union Carbide failed to provide adequate warnings or instructions on its product (the asbestos bags), (2) the failure to do so was a proximate cause of Edenfield’s exposure to Union Carbide’s asbestos, and (3) that exposure was a substantial factor in causing his mesothelioma. The jury also determined that plaintiff did not prove that Union Carbide failed to take reasonable steps to ensure that the warnings it gave to Edenfield’s employers reached Edenfield -- a finding that did not affect the verdict in light of the dual warning instruction.

The Appellate Division reversed, finding that, “in appropriate circumstances, the manufacturer may discharge this duty . . . by conveying the warnings to the employer and relying on the employer to convey them to the employee.” On the second issue, the Appellate Division asserted that the trial court erred in not charging the jury on the “frequency, regularity, and proximity” test set forth in Sholtis, 238 N.J. Super. at 28-29, and later adopted in James v. Bessemer Processing Co., 155 N.J. 279 (1998). The Court granted certification, 248 N.J. 409 (2021).

HELD: As to the duty to warn, an asbestos manufacturer or supplier that places inadequate warnings on asbestos bags used in the workplace has breached its duty to the worker, regardless of whether it provides the employer with the correct information, which is reasonably intended to reach its employees. As to medical causation, the trial court’s modified Model Jury Charge on proximate cause sufficiently guided the jury.


1. Under New Jersey common law, a product that is shipped to a workplace without adequate warnings about the product’s inherent dangers is a defective product. In this strict-liability failure-to-warn action, plaintiff had to prove that (1) without adequate warnings, use of Union Carbide’s asbestos bags by workers, such as Edenfield, was dangerous -- a product defect; (2) Union Carbide forwarded the asbestos bags to the Bloomfield Plant without adequate warnings -- in a defective condition; and (3) the inadequate warnings proximately caused Edenfield to contract mesothelioma. The third factor requires proof of two different forms of causation: product-defect causation and medical causation. For product-defect causation, the plaintiff must show that the defect in the product -- the lack of warnings or adequate warnings -- was a proximate cause of the asbestos-related injury. For medical causation, the plaintiff must show that the injury was proximately caused by exposure to defendant’s asbestos product. The first issue in this case is whether the trial court properly charged the jury that if the warnings on the asbestos bags were inadequate, Union Carbide could not escape liability by giving Edenfield’s employers proper warnings. (pp. 29-31)


2. New Jersey jurisprudence establishes that an asbestos manufacturer or supplier has a duty to provide adequate warnings to both the employee directly and the employer. The Court stated in Coffman v. Keene Corp., “we reasonably assume that a manufacturer or supplier, consistent with its own duty, will provide an adequate warning of its unsafe product to employers as well as employees,” and it repeatedly referred to both employers and employees throughout the opinion. See 133 N.J. 581, 607-09 (1993) (emphasis added). The importance of placing adequate warnings on the product itself, when feasible, is informed by the fact that some employers may not provide critical health warnings and information to their workforce. Dual warnings -- possibly redundant warnings -- are warranted because workers “exposed to a defective product” without adequate warnings are deprived of the ability “to exercise [a] meaningful choice with respect to confronting the risk of injury posed by the product.” See id. at 605. In Theer v. Philip Carey Co., the Court stressed “that employers have an independent duty to provide a safe workplace for their employees, and that a manufacturer or supplier of a product intended for use in the workplace is under a concurrent duty to warn employers, as well as employees, concerning . . . safety risks.” 133 N.J. 610, 620-21 (1993). (pp. 32-34)


3. In cases involving asbestos products in a workplace setting, the Court has hewed to the concurrent duty to warn where placing a warning on the product itself is feasible. In light of the deadly dangers posed by asbestos in the workplace, Coffman and Theer imposed a special duty on manufacturers and suppliers of asbestos -- the concurrent duty to warn not only the employee but also the employer. This case illustrates the importance of the dual-warning doctrine. Union Carbide was aware that the warnings on its asbestos bags understated the health risks to workers, yet there was no mention in the warnings that inhaling asbestos fibers may cause lung cancer. And not only did Union Carbide provide inadequate label warnings on its products, but as even Union Carbide conceded in its Appellate Division brief, the Bloomfield Plant’s operators did not “disseminate the [manufacturer’s] warnings or instructions to Plant employees.” Common law jurisprudence governed the environmental torts in Coffman and Theer, where inadequate warnings rendered the products defective. The case on which Union Carbide relies as charting a different path -- Grier v. Cochran Western Corp., 308 N.J. Super. 308 (App. Div. 1998) -- is a non-asbestos case that is governed by statute and involves a sophisticated piece of machinery. Different products may require different approaches. Instructive label warnings may be more efficacious and feasible in dealing with certain toxic substances than sophisticated pieces of machinery. Although information disseminated by the employer may always be important, in the case of sophisticated machinery supervisory training may be an especially significant component in reducing safety hazards, as suggested by Grier. The Court does not suggest a one- size-fits-all approach, but, in this asbestos case, it stands by the directives given in Coffman and Theer that the manufacturer had a duty to provide concurrent warnings both to the employee, through product labeling, and to the employer with the intention that the necessary safety information would be disseminated to the workforce. The Court therefore concludes that the trial court properly charged the jury on product defect. (pp. 34-43)


4. The Court next considers whether the trial court correctly charged the jury on medical causation. In this asbestos exposure case, in addition to instructing the jury in accordance with the Model Jury Charge on “substantial factor,” the court charged the jury with language adapted to asbestos exposure cases. Union Carbide claims that the trial court strayed from the “frequency, regularity, and proximity test” set forth in Sholtis and adopted in James. However, the Sholtis test is adaptable to varying scenarios and should not be rigidly and inflexibly applied. In James, the

Court explained in applying the Sholtis test that plaintiffs seeking to prove causation in toxic-tort litigation face “extraordinary and unique burdens” that are “more subtle and sophisticated than proof [burdens] in cases concerned with more traditional torts.” 155 N.J. at 299. Courts have recognized that, in cases involving asbestos- exposure that allegedly caused mesothelioma, the frequency, regularity and proximity test is not a rigid test with an absolute threshold level necessary to support a jury verdict, but rather an articulation of what constitutes a substantial factor for purposes of determining proximate cause in an occupational exposure setting. Thus, when a plaintiff has presented competent and credible evidence that even a minimal number of asbestos fibers can cause mesothelioma, then a jury may conclude the fibers were a substantial factor in causing a plaintiff’s injury. (pp. 43-48)


5. Here, plaintiff’s expert emphasized that even “short exposures to asbestos cause mesothelioma.” In addition, she expressed that Edenfield’s exposure to Union Carbide’s Calidria asbestos was a daily occupational hazard over many years and “[was] significant enough to substantially contribute to his mesothelioma.” In the end, it was for the jury to determine whether to accept that expert opinion or the opposing opinions of the defense experts. The trial court here properly tailored the charge to the evidence because neither plaintiff’s nor Union Carbide’s experts agreed on the level of exposure to Union Carbide’s asbestos necessary to cause Edenfield’s mesothelioma. (pp. 48-49)

6. The Court rejects the position that there can be one standard used by the trial court in deciding summary judgment and another standard used in instructing the jury. The substantive law governing the summary judgment motion is the same law that guides the jury in making its ultimate determination. The Court concludes that the trial court correctly charged the jury on the core concepts underlying medical causation in this case, and it refers consideration of whether there is a need to modify the Model Charge on proximate cause and substantial factor in the toxic tort setting to the Supreme Court Committee on Model Civil Jury Charges. (pp. 49-50)

Recommended Citation: Gelman, Jon L.,  NJ Supreme Court Enhances Workplace Safety and Adopts an Updated Standard to Medical Causation, Workers' Compensation Blog, July 3, 2022),

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Jon L. Gelman of Wayne, NJ, is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (Thomson-Reuters). For over five decades, the Law Offices of Jon L Gelman  1.973.696.7900  have represented injured workers and their families who have suffered occupational accidents and illnesses.

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Author: "Workers' Compensation Law" Thomson-Reuters