NJ Court Rejects Attempts by Asbestos Company to Apply NY Law with Respect to Damages in Mesothelioma Lawsuit

New Jersey Judge denies a motion brought by a tile manufacturer, named as a defendant in a take-home asbestos exposure lawsuit, seeking to have New York State law applied to the issue of allocation of damages among companies responsible for the plaintiff’s mesothelioma cancer.

NEW BRUNSWICK, New Jersey, December 7, 2010 - In a decision issued yesterday, the Honorable Ann McCormick of the Superior Court of New Jersey denied a motion brought by defendant Kentile Floors, Inc. ("Kentile") to have New York State law - rather than New Jersey law - applied with respect to the allocation of damages at trial in a take-home asbestos exposure lawsuit¹.

The case concerned the death of Norma Elicona, the wife of Benjamin Elicona, from mesothelioma. Benjamin Elicona worked for over thirty years as a laborer and mason tender at construction sites throughout New York City during which time he had worked with and around all manner of asbestos-containing construction materials. This included Vinyl Asbestos Tiles and other asbestos-containing tiles manufactured by Kentile. Mr. Elicona was also exposed to asbestos-containing products that were not manufactured by Kentile, such as joint compounds, wallboard accessory products, pipe covering, and thermal insulation products. Norma Elicona was exposed to the asbestos dust unknowingly brought home by her husband on his work clothes. The asbestos dust was released into the air when Mrs. Elicona shook it out from her husband's work clothes while doing laundry.

The Eliconas lived in New Jersey their entire married life; New Jersey was where they lived throughout the time that Benjamin worked as a laborer; it was where they lived when Mrs. Elicona would do the laundry; and it was where they were living when Mrs. Elicona was diagnosed with mesothelioma.

Despite this fact, Kentile argued that the New Jersey Court should apply New York State law with respect to damages since Mrs. Elicona was only exposed to asbestos from their asbestos-containing tiles that were being used and installed in the State of New York. This would be of no small consequence since there are significant differences between the laws of the two states on the matter of damages (i.e., the monetary compensation that is awarded to a plaintiff who is shown to have been injured by the conduct of a defendant).

In this case, Kentile argued that New York law should be applied since New York and New Jersey differed on the matter of “Joint and Several Liability.” This legal concept arises when, as in the Elicona case, there are multiple defendants who caused a plaintiff’s injury:

“Joint Liability” means that all defendants are responsible for all of the plaintiff’s injuries. So, if Defendant X goes bankrupt, Defendant Y would be responsible for all of the damages.

“Several Liability” means that each defendant is only responsible for their share of the damages. So, if Defendant X is found by a jury to be 2% responsible for a plaintiff’s injuries, then Defendant X must only pay up to 2% of the total damages awarded.

“Joint and Several Liability” is a combination of the previous two. The law initially sets a certain percentage as a trigger (say, 5%): if a defendant’s share of responsibility for the plaintiff’s injury is found to exceed that number, then the defendant is fully responsible for all of the damages (Jointly Liable); if the defendant’s share is less than that number, then the defendant is only responsible for their percentage share (Severally Liable).

The rationale for Joint and Several Liability is a matter of fairness: when dealing with an innocent victim with an injury, it is believed to be far better to first ensure that they are compensated, and leave it to the defendants to fight over how much each is responsible for. At the same time, the law recognizes that it could be unfair to require that defendants who played a very small role in causing an injury to be responsible for all of the damages. Joint and Several Liability is therefore a middle ground.

In cases involving environmental torts, such as asbestos, New Jersey sets its trigger threshold for Joint and Several Liability lower (5%) than does New York State (50%). This difference is particularly important in cases involving asbestos exposure, since some defendants will not be involved in the case (i.e., some are unknown, others may have gone out of business, etc.). Without Joint and Several Liability, the victims of asbestos diseases, such as mesothelioma, could be left without adequate compensation for their injuries.

Kentile, therefore, was asking for the New Jersey Court to apply New York State damages laws. Judge McCormick, however, denied Kentile’s motion holding that New Jersey has the greater interests in the case: the Eliconas were New Jersey residents, and there was no dispute that Norma Elicona had only been exposed to asbestos in the State of New Jersey. The Eliconas, therefore, were entitled to the benefits of New Jersey law.

Benjamin Elicona and his family are represented by mesothelioma lawyers Moshe Maimon and Nathaniel Falda of Levy Phillips & Konigsberg, LLP, a New York City-based mesothelioma law firm.

Workers at construction sites were heavily exposed to asbestos that was in the construction materials through at least the early 1980s. As a result, not only did these workers develop mesothelioma and other asbestos-related diseases, but in many cases their wives and children did as well by virtue of being exposed to the asbestos dust that was on their husband’s and father’s clothing when they came home from work.

Mesothelioma is an asbestos-related cancer that occurs most commonly in the pleura or peritoneum that line the lungs and abdominal cavities, respectively. The disease develops after a “latency period” of many decades, which explains why so many people are diagnosed with mesothelioma many decades after they were exposed to asbestos.

For over a quarter of a century, mesothelioma lawyers at Levy Phillips & Konigsberg, LLP, have been among the pioneers of asbestos litigation in America. The firm’s attorneys have been recognized as nationwide leaders in representing the rights of mesothelioma victims and their families. Their clients have received some of the largest mesothelioma compensation verdicts in the country.

For more information about this or other mesothelioma lawsuits, please contact Levy Phillips & Konigsberg, LLP, at 212-605-6200 or 1-800-MESO-LAW (1-800-637-6529), 24 hours a day, 7 days a week.

¹ Rosemarie Elicona, individually and as executrix and executrix ad prosequendum of the estate of Norma Elicona and Benjamin L. Elicona, Jr., vs. Bondex International, Inc., et al., No. MID-L-2990-09 AS (N.J. Super., Middlesex County).

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