Product Liability -- 2018

Condon v. Advance Thermal Hydronics, Inc.   (N.J. Super. Ct. App. Div.)

Allowing non-settling defendants to present cross-claim proofs

This case is about apportioning liability for asbestos exposure between multiple defendants. The plaintiff here sought to recover from multiple defendants, some of whom settled and some of whom went to trial. The trial defendant filed cross-claims that allege that the settling defendants were responsible for most of the injury. Against the plaintiff’s objection, the trial court allowed proof of cross-claims to be assessed by the jury, and the plaintiff appealed. The issue is whether settled defendants remain “parties” for purposes of allowing non-settling defendants to present cross-claim proofs and enable the jury to apportion fault among all defendants (settled and non-settling) that may have contributed to the plaintiff’s harm.

The NAM filed an amicus brief in support of the trial court’s decision to allow cross-claim proofs. Cross-claim proofs should be allowed as a matter of fairness and sound public policy. The presentation of cross-claim proofs against settled defendants is critical to help ensure that non-settling defendants do not bear an unfair and disproportionate burden, and to preserve assets for future claimants that could be threatened if current plaintiffs are able to receive large, windfall recoveries for their injuries in the tort system.

Furthermore, this is essential as a matter of basic fairness, particularly given the attenuated connection of many of today’s asbestos defendants to plaintiffs’ exposures, and the fact that New Jersey asbestos defendants are already severely prejudiced by their inability to apportion fault to most companies that historically had primary responsibility for plaintiffs’ asbestos exposures but are now immune as a result of bankruptcy reorganization. In addition, assets needed to compensate future asbestos plaintiffs could be threatened if plaintiffs are allowed to obtain windfall super-recoveries in the tort system.

In a win for the manufacturers, on July 9, 2018, the appellate court vacated the jury verdict against one of the remaining defendants, though the court’s decision did not reach the issue we briefed.

Related Documents:
NAM amicus brief  (November 24, 2015)


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