SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4007-18

THOMASENIA L. FOWLER, as

Administrator and Administrator 

ad Prosequendum of the Estate 

of Willis Edenfield, 

Plaintiff-Respondent,

v.

AKZO NOBEL CHEMICALS, INC. 

as successor to Imperial Chemical 

Industries PLC, and National Starch

and Chemical Co. (Discovery Only),

CORN PRODUCTS INTERNATIONAL,

INC., as successor to National Starch

and Chemical Co. (Discovery Only),

HENKEL CORPORATION, 

individually and as successor-in-interest

to the Adhesive and Electronics Division

of National Standard Chemical Co. 

(Discovery Only), and NATIONAL 

STARCH, LLC, individually and 

as successor to National Starch and 

Chemical Co. (Discovery Only), 

Defendants-Respondents,

and 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-4007-18

UNION CARBIDE CORPORATION,

Defendant-Appellant,

________________________________

Argued March 17, 2021 – Decided May 26, 2021

Before Judges Fuentes, Whipple and Rose.

On appeal from the Superior Court of New Jersey, 

Law Division, Middlesex County, Docket No. L-4820-

11.

Michael A. Scodro, (Mayer Brown, LLP) of the 

Illinois bar, admitted pro hac vice, argued the cause 

for appellant (Caruso Smith Picini, PC, Michael A.

Scodro, Craig Woods (Mayer Brown, LLP) of the 

Illinois bar, admitted pro hac vice, and Brett E. Legner 

(Mayer Brown, LLP) of the Illinois bar, admitted pro 

hac vice, attorneys; Richard D. Picini, Michael A.

Scodro, Craig Woods and Brett E. Legner, on the of 

counsel and on the briefs). 

Amber Long argued the cause for respondent (Levy 

Konigsberg, LLP, attorneys; Amber Long and 

Madeleine Skaller, on the brief).

PER CURIAM

Defendant Union Carbide Corporation appeals from an April 18, 2019 

renewed motion for judgment notwithstanding the verdict, or in the alternative, 

for a new trial, pursuant to Rules 4:40 and 4:49-1(a) after a jury trial in an 

asbestos exposure case. Plaintiff, Thomasenia Fowler, is the widow of 

decedent, Willis Edenfield, who died from mesothelioma. We are constrained 
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A-4007-18

to reverse for erroneous jury instructions, one regarding defendant's duty to 

warn, and one regarding medical causation.

On June 27, 2011, plaintiff filed suit as personal representative, 

administrator, and administrator ad prosequendum of Edenfield's estate, 

alleging strict liability and negligent failure-to-warn claims against Union 

Carbide, along with claims against Edenfield's previous employers. In 2015, 

the trial court granted summary judgment in favor of Union Carbide and 

dismissed the complaint with prejudice.

Then, in Fowler v. Akzo Nobel Chemicals, Inc., No. A-2300-15 (App. 

Div. May 17, 2017) (slip op. at 4-8), we reversed the trial court's entry of 

summary judgment because the record demonstrated the evidence was 

sufficient to create a genuine issue of material fact as to whether Edenfield was 

exposed to Union Carbide's asbestos frequently, regularly, and proximately. 

The case thereafter proceeded to trial.

I.

We draw the following facts from the trial record. Edenfield worked at 

the Bloomfield Plant (the Plant) between 1954 and 1994. The Plant was 

operated over time by Rubber and Asbestos Corporation from 1954 to 1962, 

PPG Industries, Inc. from 1962 to 1971, and National Starch and Chemical Co. 
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A-4007-18

(National Starch) from 1971 to 1995 (the employers). These companies used 

asbestos in the manufacturing of adhesive products. Edenfield worked in the 

"mill room" as a batcher, weighing and preparing dry ingredients for 

manufacturing.

Between 1969 and 1984, Union Carbide delivered approximately 56,000 

pounds of Calidria-brand asbestos in the form of a fine, white powder to the 

Plant. Union Carbide mined its asbestos from a mineral deposit in New Idria, 

California, that contained short-fiber chrysotile asbestos. It shipped the 

asbestos in ten- and forty-pound bags, with most shipments in the smaller 

bags. Usage records at the Plant detailed the daily amount of each type of 

asbestos used between 1976 and 1985. Specifically, Union Carbide's asbestos 

was regularly used in the manufacturing of adhesive products.

Testimony regarding Edenfield's work history came from his co-worker, 

Rodney Dover, who worked with Edenfield for twenty-six years. According to 

Dover, Edenfield's job was to weigh and measure dry ingredients, including 

raw asbestos, and place them in bags for use in the Plant's manufacturing 

process. Dover testified that the "batching area" of the mill room was a 

twenty-foot by twenty-foot space. Dover and other batchers typically used 

larger bags of ingredients, some of which weighed approximately 150 or 200 
5

A-4007-18

pounds. Edenfield was the only batcher who worked with bags of ingredients 

between ten and forty pounds.

All batchers worked during the same day shift and prepared all 

ingredients during that shift. After weighing and preparing all the dry, raw 

ingredients, the batchers took them to either the mill room or the "churn 

room," located in another building. In the churn room, workers made epoxy 

resins in churns or vats, using Calidria asbestos as a thickening agent. In 

contrast, the mill room did not contain vats or tanks, but allowed workers to 

mix chemicals using rollers.

Dover explained both the process that Edenfield and other batchers 

followed to obtain the dry, raw ingredients they used and where they took 

them. Most ingredients were obtained from the onsite warehouse and brought 

to the mill room. The ingredients stored in the warehouse were kept on pallets, 

and batchers would move them using a forklift, but they carried the smaller 

bags by hand. Edenfield was not involved in the process of moving materials 

with the forklift. Workers in both the churn and mill rooms worked twenty to 

thirty feet away from each other. Dover testified that the air "was basically 

clear" in the mill room because the Plant contained exhaust fans, which would 

evacuate the dust and other airborne materials to the outside environment. 
6

A-4007-18

Even so, Dover sometimes saw dust in the air. The batchers also swept up 

powder spills at the end of each day.

He also did not recall the company names of any particular asbestos 

suppliers at the Plant other than Johns Manville, which delivered its asbestos 

in 150- or 200-pound bags and was likely handled by batchers other than 

Edenfield. Different from Union Carbide, Johns Manville mined its chrysotile 

asbestos from the Jeffrey Mine in Canada and, according to one of Union 

Carbide's experts, the asbestos from the Jeffrey Mine was contaminated with 

tremolite.

At trial, William Dyson, Ph.D., testified on behalf of Union Carbide as 

an expert in the fields of industrial hygiene, exposure assessments, risk 

assessments, and Occupational Safety and Health Act1(OSHA) requirements. 

Dyson testified the Plant employees used Calidria in the processes in the churn 

room and "paper coating" room, neither of which was the area where Edenfield 

worked. Dyson estimated that between seventy-five and ninety percent of the 

asbestos used at the Plant was supplied by companies other than Union 

Carbide. Dyson further opined there was no evidence that Edenfield either 

1

 Occupational Safety and Health Act, 29 U.S.C. §§ 651 to 678. The term 

OSHA refers to both the statutory compilation and the Occupational Safety 

and Health Administration.
7

A-4007-18

worked with, or was exposed to, Calidria asbestos. He came to this conclusion 

because none of Edenfield's co-workers testified that the Plant used Calidria 

asbestos, nor had they observed Edenfield using Calidria asbestos, and the 

Plant used Calidria asbestos only in the churn room, which was located in a 

separate building from the one where Edenfield worked.

The record reveals a timeline of actions Union Carbide took to address 

the safety of its products. In 1968, Union Carbide began placing a warning on 

the bags of Calidria asbestos that it sold, which stated: "WARNING: 

BREATHING DUST MAY BE HARMFUL. DO NOT BREATHE DUST." 

Then, in 1972, Union Carbide changed the warning to the following in order to 

comply with OSHA requirements: "CAUTION. Contains Asbestos Fibers. 

Avoid Creating Dust. Breathing Asbestos Dust May Cause Serious Bodily 

Harm."

Union Carbide took other steps to warn customers of the dangers of 

asbestos, as well. In 1975, it sent Calidria customers a Material Safety Data 

Sheet (MSDS) outlining the chemical properties of its asbestos and safety 

information. In 1977, it sent customers an updated MSDS, along with several 

pamphlets pertaining to asbestos safety, and encouraged employers to transmit 

the information to employees. Both MSDSs recommended that employees 
8

A-4007-18

working with Calidria asbestos wear protective clothing, avoid inhalation of 

dust, provide local exhaust for every operation, remove spilled material by 

vacuum or water, carefully launder personal clothing to avoid airborne 

exposure to asbestos, and undergo an annual comprehensive medical 

examination, among other measures. The pamphlets also recommended 

numerous precautions such as wearing respirators, and warned that exposure to 

asbestos fibers could increase the risks of developing mesothelioma, 

asbestosis, lung cancer, and cancer of the digestive tract.

In 1981, Union Carbide sent its customers information from the 

Asbestos Information Association/North America, regarding best practices for 

handling asbestos and possible health implications, along with OSHA 

regulations. Union Carbide also sent employers OSHA-recommended posters 

that instructed employees to use respirators, vacuum-clean spills, leave dusty 

clothes at their places of employment, repair broken bags, and report unsafe 

conditions to their employers. It is unclear from the record when Union 

Carbide sent the posters to Edenfield's workplace.

At the same time, beginning no later than 1972, Union Carbide offered 

to perform air monitoring testing for asbestos dust to its customers or, if they 

preferred, to offer training and equipment in order to perform the testing 
9

A-4007-18

themselves. The record contains a January 19, 1972 letter from a Union 

Carbide manager to a National Starch employee, memorializing their 

conversation about asbestos testing and enclosing information on how to 

perform it.

Further, Union Carbide representatives spoke with Edenfield's 

employers—who owned the Plant—to discuss safety measures and dangers 

associated with Calidria. In August and September 1971, its representatives 

met and spoke via telephone with Edenfield's employer to discuss safe 

operating procedures for Calidria, toxicity problems, potential health hazards, 

threshold limit values, and existing legislation pertaining to asbestos.

Doctors from Union Carbide's Industrial Medicine and Toxicology 

Department authored asbestos toxicology reports from 1964 to 1969, outlining 

the known risks of asbestos and recommended health and safety measures, 

including threshold limit values. One 1969 toxicology report warned that 

exposure to asbestos dust could lead to mesothelioma and that individuals who 

were even slightly exposed could develop it as much as forty years later. The 

report recommended that customers who used its asbestos-containing products 

take safety measures, such as installing "closed flow systems" and exhaust 
10 A-4007-18

ventilation, wearing respirators, and conducting environmental monitoring to 

ensure that work areas did not exceed threshold limit values.

However, the 1969 toxicology report excised a portion that Dr. C.U. 

Dernehl (one of the doctors from Union Carbide's Industrial Medicine and 

Toxicology Department) wrote, in which he stated that he was not convinced 

that the proposed new threshold limit values would prevent employees from 

developing mesothelioma. While Sarah Opperman, Union Carbide's corporate 

representative, testified that Union Carbide sent these toxicology reports to 

customers, it is not clear that the company sent the reports to Edenfield's 

employers because they were not in the Plant's files.

In March 1972, OSHA held a hearing to solicit views and arguments 

regarding its proposed warnings for asbestos labels. The National Institute for 

Occupational Safety and Health (NIOSH) recommended a warning that stated: 

"HARMFUL: May Cause Delayed Lung Injury (Asbestosis, Lung Cancer). 

DO NOT BREATHE DUST. Use only with adequate ventilation and approved 

respiratory protective devices." Union Carbide was aware of the NIOSHrecommended warning and submitted a comment at the OSHA hearing. While 

the record does not contain Union Carbide's comment, it reflects that Union 

Carbide did not utilize the NIOSH-recommended warning on its Calidria bags.
11 A-4007-18

Similarly, in March 1972, the Manufacturing Chemists' Association's 

Labels and Precautionary Committee submitted a comment to OSHA to 

propose a warning that stated: "WARNING: HARMFUL IF INHALED. 

MAY CAUSE DELAYED LUNG INJURY (ASBESTOSIS, LUNG 

CANCER). Do not breathe dust. Use only with adequate local exhaust 

ventilation or approved respiratory protective devices. . . ." Dernehl was a 

member of this committee. Again, the record reflects that Union Carbide did 

not use this warning.

Further, on June 22, 1972, a Union Carbide sales manager circulated a 

memorandum to instruct six salespeople on how to discuss recently enacted 

OSHA regulations with customers. He wrote that salespeople should 

"[c]ontrol . . . the conversation" and "[a]ssure the customer that the new law is 

reasonable." He encouraged salespeople to be aggressive and "keep the 

customer on the defensive," if the customer threatened to stop purchasing 

asbestos. This manager spoke with National Starch about the regulations in 

1972.

In 1983, Union Carbide employee, R.W. Rebholz, wrote an internal 

memorandum stating that "[i]t is widely recognized" that the 1972 label on the 

Calidria bags "understates the risk associated with exposure to asbestos dust." 
12 A-4007-18

He attached a proposed alternative warning, which cautioned that breathing 

asbestos dust was a cancer hazard and instructed users to wear an OSHAapproved respirator. Union Carbide rejected the option to use both labels on 

the basis that they "would be confusing to the individual using the product." 2 

OSHA informed Union Carbide that it could use the alternative label if it 

submitted a formal request and OSHA approved the label. Opperman was not 

aware of whether it submitted a request, though nothing in the record 

demonstrates that Union Carbide ever used the alternative label.

The record also contains some evidence of steps Edenfield's employers 

took to protect the Plant workers from the hazards of asbestos. Dover testified 

that he requested respirators to wear on the job, which the employer provided. 3 

He said that Edenfield "occasionally" wore a respirator. At some point during 

Dover's tenure, his employer installed ventilation fans in the Plant. And 

between at least 1976 and 1982, National Starch performed air testing for 

asbestos to ensure that levels did not exceed OSHA limits.

Dover, however, testified that he did not change his clothes when he 

arrived at the Plant or left; instead, his employer provided clothing to wear 

2

 The record does not establish who at Union Carbide rejected the option to 

use two warning labels.

3

 Dover did not testify as to when this occurred.
13 A-4007-18

over his own clothes. Additionally, no doctor or nurse employed by the Plant 

owners ever examined him. Dover also did not recall receiving anything in 

writing from his employer regarding asbestos, did not observe air monitoring 

in his area of the Plant, and did not receive supervisory instructions on worker 

safety.

Relevant to causation, the record contains evidence of factors that may 

have played a role in Edenfield contracting mesothelioma other than Union 

Carbide's asbestos, including his exposure to Johns Manville's asbestos and to 

asbestos used in other processes at the Plant. Edenfield's answers to Union 

Carbide's interrogatories stated that he worked around other employees who 

handled asbestos and asbestos-containing products, including loose asbestos, 

asbestos fibers, valves, gaskets, boilers and furnaces, and that the work created 

a lot of dust, which he breathed in.

Dr. James D. Crapo also testified on behalf of Union Carbide. The court 

qualified him as an expert in the fields of pulmonary and internal medicine 

related to chrysotile, including Union Carbide's asbestos and its correlation 

with asbestos-related diseases. He opined that if the information in plaintiff's 

interrogatories was accurate, the resulting exposure to asbestos would 

constitute a substantial contributing factor in Edenfield's development of 
14 A-4007-18

mesothelioma. However, Crapo also opined that Edenfield's exposure to 

Union Carbide's asbestos, as described by Dover, did not create a risk for him 

to develop mesothelioma because Union Carbide's asbestos did not contain the 

fiber structure that could reach the lower lung and contribute to causation of 

the disease.

Last, Dr. Victor Roggli testified on behalf of Union Carbide. The court 

qualified him as an expert in pathology and the diagnosis and causation of 

asbestos-related diseases, including mesothelioma. He opined that it was 

highly unlikely that Edenfield's mesothelioma was caused by Union Carbide's 

asbestos because Union Carbide's asbestos was not contaminated with 

tremolite, as was Johns Manville's asbestos.

On January 22, 2019, the jury returned a verdict in plaintiff's favor on 

claims of strict liability and negligent failure to warn and awarded $2,380,000 

in damages. On February 11, 2019, the court entered judgment in favor of 

plaintiff and against Union Carbide. Union Carbide filed a motion for 

judgment notwithstanding the verdict or for a new trial, which the court denied 

on April 19, 2019. This appeal followed.
15 A-4007-18

Having reviewed the record and each of Union Carbide's arguments, we 

conclude Union Carbide is entitled to a new trial because of improper jury 

instructions regarding Union Carbide's duty to warn and proximate cause.

II.

First, Union Carbide argues that the court gave an improper instruction 

on the duty to warn. It argues the instruction was erroneous because the court 

limited the jury to considering the warnings on its asbestos bags, and not the 

warnings and information it sent to Edenfield's employers, and that a proper 

instruction might have changed the jury's verdict.

During the charge conference, Union Carbide asked the court to instruct 

the jury to consider whether it acted reasonably in both the warnings it placed 

on the bags and the information it communicated to Edenfield's employers, 

including instructions, warnings, and offers to assist with worker safety. It 

proposed the following instruction:

[F]or purposes of deciding whether the warning given 

was adequate, you may consider as part of the warning 

the cautionary information given to an employer with 

the intention or purpose that the employer alert 

employees to the dangers of the product and the 

proper methods of mitigating the risks presented by 

the product.
16 A-4007-18

The court ruled that Union Carbide owed separate duties to its customers 

and their employees, which were not interdependent. The court found that 

Union Carbide maintained its duty to the "end user"—either Edenfield or his 

co-workers who opened the bags in his presence—such that the warnings it 

issued to the employer did not discharge its duty to warn Edenfield.

At trial, the court issued the following instruction for Union Carbide's 

duty to warn:

In the employment context, a manufacturer or supplier 

of products that are used by employees is required to 

take reasonable steps to ensure that its warning 

reaches those employees. Satisfying that obligation 

may require that warnings be communicated to 

employers as well as employees.

In this case there has been evidence of warnings 

provided both on labels on Union Carbide's asbestos 

as well as warnings and information provided to Mr. 

Edenfield's employers. In determining whether Union 

Carbide satisfied its duty to warn, you may consider 

both of these avenues of warning.

The duty to put an adequate warning on the product 

may not be discharged by warnings and information to 

the employer.

But contrary to this instruction, question 3A on the verdict sheet 

instructed jurors to consider whether plaintiff proved that "Union Carbide 

failed to provide an adequate warning or instructions on its product rendering 
17 A-4007-18

it not reasonably safe for its intended and foreseeable use." During 

deliberations, the jury made the following inquiry: "[o]n Question 3A is 

adequate warning/instructions only to the labels on the asbestos bags or does it 

include other materials, that is to say [MSDS] and pamphlets[?]" Union 

Carbide argued that "the question should speak for itself" and that the court 

should only refer the jury to the charges, if anything. The court responded to 

the jury that Question 3A "deals with the asbestos bags." 

The jury answered "yes" to Question 3A. It answered "no" to Question 

3B, which asked whether plaintiff proved "by a preponderance of the credible 

evidence that . . . Union Carbide failed to take reasonable steps to ensure that 

its warnings reached . . . Edenfield." It also answered "yes" to Question 4, 

which asked whether plaintiff proved that "Union Carbide's failure to provide 

an adequate warning or instructions with respect to its product or failure to 

take reasonable steps to ensure that its warnings reached . . . Edenfield was a 

proximate cause of . . . Edenfield's exposure to Union Carbide's asbestos."

"It is fundamental that '[a]ppropriate and proper charges to a jury are 

essential for a fair trial.'" Prioleau v. Kentucky Fried Chicken, 223 N.J. 245, 

256 (2015) (quoting Velazquez ex rel. Velazquez v. Portadin, 163 N.J. 677, 

688 (2000)). The jury charge should outline the issues, set forth the law in 
18 A-4007-18

clear and understandable terms, and plainly explain how the jury should apply 

legal principles to the facts it finds. Id. at 256-57.

We review not only the jury charge itself, but whether errors in the 

charge may have affected the outcome of the trial. Washington v. Perez, 219 

N.J. 338, 351 (2014). We "must examine the charge as a whole, rather than 

focus on individual errors in isolation." Ibid. (quoting Viscik v. Fowler Equip. 

Co., 173 N.J. 1, 18 (2002)). Generally, we will not "reverse if an erroneous 

jury instruction was 'incapable of producing an unjust result or prejudicing 

substantial rights.'" Ibid. (quoting Mandal v. Port Auth. of N.Y. & N.J., 430 

N.J. Super. 287, 296 (App. Div. 2013)).

A strict liability claim in a products liability, failure-to-warn case 

requires the plaintiff to prove "that (1) without warnings or adequate warnings, 

the product was dangerous to the foreseeable user and therefore defective; (2) 

the product left the defendant's control in a defective condition (without 

warnings or adequate warnings); and (3) the lack of warnings or adequate 

warnings proximately caused an injury to a foreseeable user." Whelan v. 

Armstrong Int'l, Inc., 242 N.J. 311, 333 (2020) (alteration in original) (quoting 

Zaza v. Marquess & Nell, 144 N.J. 34, 49 (1996)). But ultimately, the 

question is whether the manufacturer acted in a reasonably prudent manner 
19 A-4007-18

when it introduced the product into the marketplace, which it would prove by 

showing it acted reasonably prudently in the warnings it provided, and in 

marketing the product. Id. at 331-32 (quoting Zaza, 144 N.J. at 49).

In an asbestos failure-to-warn case, the plaintiff must also prove two 

types of causation: "product-defect causation and medical causation." Id. at 

333 (citing James v. Bessemer Processing Co., 155 N.J. 279, 295-96 (1998)). 

And second, "[f]or 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." Id. at 337 (citing Coffman v. 

Keene Corp., 133 N.J. 581, 594 (1993)).

However, a manufacturer cannot delegate to the employer its duty to 

warn the user of the dangers of its product. Grier v. Cochran Western Corp., 

308 N.J. Super. 308, 319 n.3 (App. Div. 1998) (citing Coffman, 133 N.J. at 

608). At the same time, our Supreme Court has explained how a manufacturer 

can satisfy its duty by communicating the warning to the employer. In short, a 

"heeding" presumption means "if an adequate warning exists, a product is no 

longer considered defective, because when a manufacturer provides a warning, 

'the seller may reasonably assume that it will be read and heeded.'" Coffman, 

133 N.J. at 596 (quoting Coffman v. Keene Corp., 257 N.J. Super. 279, 287 
20 A-4007-18

(1992)); see Theer v. Philip Carey Co., 133 N.J. 610, 618-24 (1993). As such, 

"if a seller or manufacturer is entitled to a presumption that an adequate 

warning will be read and heeded, plaintiff should be entitled to the same 

presumption when no warning is given." Coffman, 133 N.J. at 596.

In Coffman, the Supreme Court stated that "in the employment setting, 

the adequacy of a warning with respect to unsafe products may require that 

they be communicated to employers as well as employees; the adequacy of a 

warning entails alerting the employer in order to alert the employee of the 

dangers of the unsafe product." Coffman, 133 N.J. at 607 (emphasis added). 

The Court further explained that in the modern workplace manufacturers 

typically rely on supervisors and managers to transmit warnings to employees, 

and manufacturers ensure the supervisors adequately warn employees, so they 

can fulfill their duty to provide a safe workplace. Ibid. But the Court did not 

specify the circumstances under which a manufacturer's reliance on an 

employer constitutes an adequate warning to the employee, and it noted the 

manufacturer maintains a concurrent duty to provide adequate warnings 

regarding unsafe products to both employers and employees. Id. at 609 

(analyzing application of the heeding presumption in an asbestos failure-towarn case).
21 A-4007-18

Then, in Theer, the Court discussed the heeding presumption in an 

asbestos failure-to-warn case and explained that the asbestos-producing 

defendants were required to overcome the employer heeding presumption, 

which presumes the employer would have heeded an appropriate warning from 

the defendants and communicated it to employees to allow them to take 

precautions that minimized injury risks. Theer, 133 N.J. at 622. They could 

do so through sufficient evidence pertaining to:

[T]he adequacy of the warnings that were given, 

whether they were directed to employers, whether they 

were calculated to reach and inform employees who 

would foreseeably be exposed to those products in the 

workplace, and whether the employer would have 

required or allowed employees to take precautionary 

measures to overcome the risks of exposure to 

asbestos.

[Ibid.]

Grier also addressed manufacturer-placed warnings after a jury verdict. 

308 N.J. Super. at 312-14. There, the plaintiff, an airline employee, was 

injured by a beltloader vehicle the defendant manufactured. On appeal, this 

court held a machine manufacturer had a duty "to take reasonable steps to 

ensure that appropriate warnings for safe use reach foreseeable users of the 

equipment. What is reasonable depends on the circumstances of a given case. 
22 A-4007-18

Questions of reasonableness in determining the adequacy of warnings are 

ordinarily for the jury to resolve." Id. at 317.

We explained:

There is no general rule as to whether one supplying a 

product for the use of others through an intermediary 

has a duty to warn the ultimate product user directly or 

may rely on the intermediary to relay warnings. The 

standard is one of reasonableness in the 

circumstances. Among the factors to be considered 

are the gravity of the risks posed by the product, the 

likelihood that the intermediary will convey the 

information to the ultimate user, and the feasibility 

and effectiveness of giving a warning directly to the 

user.

[Id. at 318 (quoting Restatement (Third) of Torts: 

Products Liability § 2 cmt. i (Proposed Final Draft, 

April 1997)).]

Also in Grier, we referred to Coffman's holding that manufacturers often 

instruct employers to alert employees of an unsafe product's dangers, who then 

rely on supervisors and managers to transmit warnings to employees, ibid.

(quoting Coffman, 133 N.J. at 607), and that the plaintiff was "incorrect in his 

contention that, as a matter of law, a manufacturer may not discharge its duty 

to warn by alerting the employer of the dangers in the operation of 

sophisticated machinery." Ibid. Rather, "[t]he question simply is whether, in 
23 A-4007-18

the context of a given case, the manufacturer acted reasonably in conveying 

adequate information on the safe use of its product." Ibid.

Thus, in Grier we explained the concept of "adequate product warning" 

under the applicable section of the New Jersey Product Liability Act (PLA) 4

"does not require that warnings be put in a particular place or transmitted by a 

particular means." Id. at 317 (citing Repola v. Mobark Indust., Inc., 934 F.2d 

483, 491 (3d Cir. 1991)). The concept is a flexible one that depends on the 

product's characteristics, the intended user, and the circumstances of its use. 

Ibid. As such, a manufacturer may be expected to take different steps to 

ensure safety when the intended user is an individual consumer as opposed to 

employees in an industrial environment, or where the product is sophisticated 

machinery, which may require employee training. Id. at 317-18.

4

 Under the PLA:

An adequate product warning or instruction is one that 

a reasonably prudent person in the same or similar 

circumstances would have provided with respect to the 

danger and that communicates adequate information 

on the dangers and safe use of the product, taking into 

account the characteristics of, and the ordinary 

knowledge common to, the persons by whom the 

product is intended to be used . . . .

[N.J.S.A. 2A:58C-4.]
24 A-4007-18

Similar to the steps taken by Union Carbide here, in Grier, the first page 

of the defendant's operations manual contained a warning about the product, 

the beltloader's guardrail contained an additional warning, and the defendant 

offered free training to all airlines that purchased its beltloader. Id. at 318-19. 

The court declined to overturn the jury's verdict because there was sufficient 

evidence to conclude that the defendant acted reasonably in taking steps to 

ensure that the warnings reached the product user. Id. at 320-21.

As these cases illustrate, the manufacturer may not delegate to the 

employer its duty to warn the employee of the unsafe product, but instead it 

maintains a separate, concurrent duty to warn both the employee and 

employer. However, in appropriate circumstances, the manufacturer may 

discharge this duty, in the eyes of the jury, by conveying the warnings to the 

employer and relying on the employer to convey them to the employee.

Here, the court correctly ruled that Union Carbide owed separate duties 

to Edenfield and his employers, and that Union Carbide's warnings to his 

employers did not discharge its duty to Edenfield. The court's instructions 

appropriately explained the two separate duties, noted that the manufacturer 

must take reasonable steps to ensure the warnings reach the employee, and 

balanced Union Carbide's retention of the duty to Edenfield with the fact that it 
25 A-4007-18

could communicate warnings to the employer. The judge also properly 

instructed that the jury could consider both "avenues of warning." However, 

the court's error was in the final sentence of its instructions on Union Carbide's 

duty to warn Edenfield, in which it instructed the jury that Union Carbide's 

duty to place an adequate warning on the product could not be discharged 

through warnings and information to the employer.

This instruction is inconsistent with the case law, which allows the 

manufacturer to discharge the duty by providing adequate warnings and 

information to the employer, so long as the manufacturer's actions in intending 

the warnings to reach the employer were reasonable under the circumstances. 

Grier, 308 N.J. Super. at 317. The jury would be obligated to consider the 

nature of the product, the nature of the safety training the product required, the 

nature of the training Union Carbide offered, whether it was reasonable for 

Union Carbide to believe that Edenfield's employer would relay the warnings 

to him, and whether they were sufficiently calculated to reach him. Theer, 133 

N.J. at 622. It would also need to consider the nature of the workplace, 

including whether Union Carbide had the ability to enter the Plant and speak 

directly to employees, hand them pamphlets, and display posters. Ibid.
26 A-4007-18

The adequacy of warnings to the employee are part of the balancing test 

in determining reasonableness under the circumstances. If the warnings and 

instructions on the product are inadequate, the manufacturer must make greater 

efforts to warn the employer of the product's dangers, provide sufficient 

information to the employer on the product's dangers and safe use, and ensure 

that the employer conveys this information to the employee. However, the 

manufacturer may also have to establish that the nature of the workplace 

prevented the manufacturer from conveying the information directly to the 

employee. At bottom, the issue of reasonableness is for the jury to decide.

The court essentially compounded its error in the verdict sheet with its 

response to the jury's question. Question 3A of the verdict sheet improperly 

confined the jury to consider the warnings or instructions Union Carbide 

provided on the product, without considering those that it provided to 

Edenfield's employers. And when the jury asked whether it could consider that 

information, the court erroneously limited it to considering the warnings on the 

asbestos bags vis-à-vis the wording of Question 3A.

In sum, the court therefore issued an erroneous jury instruction on Union 

Carbide's duty to warn Edenfield, which is a material consideration, rendering 

the instruction presumptively reversible. Further, the record reflects that the 
27 A-4007-18

error might have affected the trial's outcome. For example, the jury found 

Union Carbide failed to provide adequate warnings on the asbestos bags. 

Similarly, Union Carbide did not attempt to delegate to Edenfield's employer 

its duty to warn, but it did attempt to discharge this duty by providing 

information for them to pass onto Edenfield. Union Carbide introduced 

evidence of warnings and information that it communicated to the employers, 

including the MSDS, pamphlets and posters.

The documents Union Carbide distributed to Edenfield's employer 

outlined risks associated with asbestos as well as numerous safety measures 

and recommended precautions. Union Carbide also offered to perform air 

testing for asbestos dust for Edenfield's employers, to conduct training of 

employees, and to provide equipment in order for the employers to perform 

their own testing. It also met with the employers to discuss safety measures 

and dangers associated with its asbestos, including safe operating procedures, 

potential health hazards, and threshold limit values.

Perhaps most importantly, in answering "no" to Question 3B, the jury 

found that plaintiff did not prove by a preponderance of the credible evidence 

that Union Carbide failed to take reasonable steps to ensure that its warnings 

reached Edenfield – the question they should have been asked. It is possible 
28 A-4007-18

that if the jury were instructed properly, it would have found that Union 

Carbide acted reasonably under the circumstances in communicating adequate 

warnings to Edenfield through his employer.

III.

We also write to address a second jury charge, the need to find medical 

proximate causation between Union Carbide's activities and Edenfield's 

mesothelioma. On appeal, Union Carbide also asserts plaintiff had to establish 

medical causation to prove both its strict liability and negligent failure-to-warn 

counts. Union Carbide contends that as part of the test of medical causation, 

plaintiff had to demonstrate that Edenfield was exposed to its asbestos with 

sufficient "frequency, regularity and proximity," and that the court erred in 

declining to include these terms with its jury instructions. It argues that proper 

jury instructions might have changed the jury's verdict because the record did 

not establish that Edenfield was exposed to its asbestos on a regular basis.

At the charge conference, Union Carbide proposed the following 

instruction on medical causation:

[I]n order to prove medical causation, the [p]laintiff 

must 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 to [Union 
29 A-4007-18

Carbide's] product was a substantial contributing 

factor to Mr. Edenfield's mesothelioma.

The court rejected this instruction. Instead, the court's instruction 

provided that plaintiff must prove Edenfield's exposure to Union Carbide's 

asbestos served as a "proximate cause" of his mesothelioma. It clarified that 

"proximate cause . . . meant that the failure to warn was a substantial factor," 

such that the asbestos "was an efficient cause of [Edenfield's] injury, that it 

was not remote or a trivial cause having only an insignificant connection with 

the harm." The court noted that the jury should not find Union Carbide liable 

"based on casual or minimal contact with the product . . . [or] on mere 

guesswork" and cautioned that proximate cause does not require that there are 

no other independent or contributing causes.

"To prove medical causation, a plaintiff must show 'that the exposure [to 

each defendant's product] was a substantial factor in causing or exacerbating 

the disease.'" James, 155 N.J. at 299 (alteration in original) (quoting Sholtis v. 

Am. Cyanamid Co., 238 N.J. Super. 8, 30-31 (App. Div. 1989)). In James, the 

court explained that the plaintiffs in toxic-tort litigation faced unique burdens 

in proving causation because toxic chemicals often involve decades-long 

latency periods between exposure and disease symptoms and the plaintiffs 

were often "exposed to multiple products of multiple defendants over an 
30 A-4007-18

extended period of time." Id. at 300-01 (citing Sholtis, 238 N.J. Super. at 14-

16). We recognize plaintiffs faced a "formidable" burden in attempting to 

prove that their exposure to any single defendant's product was a substantial 

factor in causing their illness. Id. at 301.

In Sholtis, 238 N.J. Super. at 28-29, our Supreme Court "adopted a 

'frequency, regularity and proximity' test" to establish liability in asbestosexposure cases involving multiple defendants. As explained in James:

Under that test, in order to prove that exposure to a 

specific defendant's product was a substantial factor in 

causing or exacerbating the plaintiff's disease, the 

plaintiff is required to prove 'an exposure of sufficient 

frequency, with a regularity of contact, and with the 

product in close proximity' to the plaintiff. . . . Since 

proof of direct contact is almost always lacking . . . 

courts must rely upon circumstantial proof of 

sufficiently intense exposure to warrant liability.

[James, 155 N.J. at 301-02 (quoting Sholtis, 238 N.J. 

Super. at 28-29).]

Even further in Sholtis, we found that the test struck an appropriate 

balance between the needs of the plaintiffs in proving contact with a particular 

defendant's product under the difficult circumstances of exposure to multiple 

products, and those of the defendants in protecting against liability based on 

guesswork. 238 N.J. Super. at 28-29. The test prevents a plaintiff from 

relying "on evidence which merely demonstrates that a defendant's asbestos 
31 A-4007-18

product was present in the workplace or that [they] had 'casual or minimal 

exposure' to it." Kurak v. A.P. Green Refractories Co., 298 N.J. Super. 304, 

314 (App. Div. 1997) (quoting Goss v. Am. Cyanamid Co., 278 N.J. Super. 

227, 236 (App. Div. 1994)). We cautioned that the factfinder should focus on 

the underlying concept of the test and not allow the phraseology to serve as 

"catch words." Sholtis, 238 N.J. Super. at 29.

The trial court here primarily relied on the model charge on proximate 

cause in its instruction, which directs the jury to find whether Edenfield's 

exposure to Union Carbide's asbestos "was a cause of" his mesothelioma and 

whether his exposure to Union Carbide's asbestos:

[W]as a substantial factor that singly, or in 

combination with other causes, brought about the 

[injury] claimed by [plaintiff]. By substantial, it is 

meant that it was not a remote, trivial or 

inconsequential cause. The mere circumstance that 

there may also be another cause of the [injury] does 

not mean that there cannot be a finding of proximate 

cause. Nor is it necessary for the negligence of 

[defendant] to be the sole cause of [the injury]. If you 

find that [Union Carbide's] negligence was a 

substantial factor in bringing about the [injury], then 

you should find that [defendant's] negligence was a 

proximate cause of the [injury].

[Model Jury Charges (Civil), 6.12, "Proximate 

Cause—Where There is Claim That Concurrent 

Causes of Harm Were Present" (approved May 1998).]
32 A-4007-18

However, while case law encourages trial courts to follow the model 

charges in their entirety, it also instructs them to modify the charges to meet 

the facts. See Reynolds v. Gonzalez, 172 N.J. 266, 288-89 (2002) (citing 

Velazquez, 163 N.J. at 688) ("The failure to tailor a jury charge to the given 

facts of a case constitutes reversible error where a different outcome might 

have prevailed had the jury been correctly charged."). Here, the court issued 

the general charges for proximate cause, but did not modify them for an 

asbestos litigation matter in which plaintiff was exposed to products from 

multiple manufacturers over an extended period of time, which requires the 

"frequency, regularity and proximity" instruction. Sholtis, 238 N.J. Super. at 

28-29.

We discern no support for the contention that the "frequency, regularity 

and proximity" test is strictly a summary judgment standard. Under Sholtis, 

the three "factors should be balanced for a jury to find liability." Id. at 28. 

Likewise, in Kurak, 298 N.J. Super. at 314-22, the court did not limit the test 

to only summary judgment determinations.

The Sholtis test requires plaintiff to prove that Edenfield was exposed to 

Union Carbide's asbestos on numerous occasions, and while he was physically 

close to the product, the court's instructions required plaintiff to prove only 
33 A-4007-18

that Edenfield's exposure was more than minimal and that it had a connection 

to his injury that was greater than insignificant. The latter standard 

significantly lowered plaintiff's burden and failed to allow the jury to weigh 

the three factors that the courts carefully crafted to balance the needs of 

plaintiffs and defendants in multiple product-exposure asbestos litigation 

cases.

Although the jury found plaintiff proved that Edenfield was exposed to 

Union Carbide's asbestos, it is not possible to know whether the jury would 

have found that he was exposed with the requisite frequency, regularity and 

proximity because the court did not provide such an instruction. The record 

contains sufficient evidence for a jury to question whether Edenfield was 

exposed to Union Carbide's asbestos on a liability-imposing basis.

Defendant's remaining arguments are without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Reversed, judgment vacated and remanded for a new trial consistent 

with this opinion. We do not retain jurisdiction.