Morton v. Owens-Corning Fiberglas Corp.

Morton v. Owens-Corning Fiberglas Corp.

Opinion

 [*1532]  [**22]   HAERLE, J. 

I. INTRODUCTION

Robert and Pamela Morton brought this strict products liability action against Owens-Corning  [**23]  Fiberglas Corporation (OCF) and others for damages arising from Mr. Morton's exposure to asbestos containing products and his consequent development of mesothelioma, an asbestos-caused form of cancer. Although Mr. Morton died before the trial was complete,  [***2]  OCF was ultimately found liable to plaintiffs. Judgment was entered against OCF for $ 3,002,356 in favor of Mrs. Morton as administrator of her husband's estate and $ 148,314 in favor of Mrs. Morton individually. ² OCF urges reversal of the judgment for several reasons. We find that modification of the damage awards is necessary but that OCF is not entitled to reversal of the judgment against it.

II. FACTS AND PROCEDURAL BACKGROUND

From December 1959 to February 1961, Mr. Morton worked at the New York Shipbuilding Yard in Camden, New Jersey (the Shipyard). He worked  [*1533]  as a wireman, installing cable on board ships. The majority of his time at the Shipyard was spent working on a ship called the Kitty Hawk. After working in the Shipyard, Mr. Morton joined the Air Force where he worked as an illustrator. He then worked as a salesman [***3]  while he earned his engineering degree. Thereafter, Mr. Morton worked as a structural engineer. Mr. Morton was in good health until October 1991, when he developed flu symptoms and chest pains. During the following months, Mr. Morton underwent various tests and, in May 1992, was diagnosed with mesothelioma.

The trial court ordered that the trial be bifurcated. The damages phase was tried first, to the judge, who made separate findings for each type of damages plaintiffs' suffered. ³ The liability phase was tried to a jury who heard Mr. Morton's testimony by videotape deposition. On February 26, 1993, Mr. Morton died prior to completion of the trial. Over OCF's objection, the court elected to proceed to judgment. Mrs. Morton filed a declaration under section 377.32 of the Code of Civil Procedure requesting that she be allowed to continue the action as Mr. Morton's survivor. Thereafter, the jury found OCF liable to plaintiffs and responsible for 12 percent of their damages.

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