Last Defendant at Trial, You Are Not Alone: Apportionment Under New Jersey Law

Last week in the Rowe v. Bell & Gossett decision, a unanimous New Jersey Supreme Court found that an asbestos defendant at trial may demonstrate settling co-defendants’ liability and their share of fault by using the co-defendants’ answers to interrogatories and corporate representative depositions from the pending or prior asbestos litigations. This evidence, along with plaintiff’s testimony on product usage and plaintiff’s own expert’s testimony on cross-examination, was sufficient to show that each settling defendant’s product was a substantial factor in causing injury and allow a jury to allocate fault. Thus, the court has provided guidance on how and not just that a remaining defendant may reduce its fault at trial. Under New Jersey’s joint tortfeasor law, as in many other jurisdictions, when two or more persons are jointly and severally liable for the same tort and injury, the jury must allocate fault between and among the tortfeasors, regardless of whether they all remain parties to the litigation.

The Supreme Court’s decision will require plaintiffs to fully understand the relative responsibilities among defendants before risking a settlement with some but not all of them. This will undoubtedly delay or completely prevent settlement opportunities, especially for parties of products that plaintiff most regularly used during his lifetime.

From a defense perspective, this decision endorses a streamlined approach for proving cross-claims at trial. non-settling defendant must simply be careful to timely and fully disclose its intent to demonstrate such non-parties’ liability at trial. With proper notice, the non-settling defendant may use the settling defendants’ written interrogatory answers, corporate representative depositions, responses to admissions, prior trial testimony, if any, or call them as a live witness if the content of these statements were made “against the party’s interest.”

In Rowe, plaintiff argued that interrogatory responses and corporate representative depositions were impermissible hearsay that could only be used, if at all, against the declarant co-defendants, not against plaintiff. The Supreme Court rejected that argument, finding that these statements were admissible under New Jersey Rule of Evidence 803(c)(25) because they were made by the corporate defendant and were “so far contrary to the [corporation’s] pecuniary, proprietary, or social interest, or so far tended to subject [that defendant] to civil or criminal liability . . . that a reasonable person in [that defendant’s] position would not have made the statement unless the person believed it to be true.” In Rowe, “when the relevant statements were made, each declarant was a defendant in this case or in other asbestos product liability cases.” Moreover, such statements admitted corporate relationships including potential successor liability, the manufacture or sale of goods containing asbestos, or the manufacture or sale of goods without warnings related to asbestos.

The Appellate Division had ruled that these statements were not “against interest” because “the existence of asbestos-containing products and the absence of warnings are objective, well-known historical facts that the settling defendants could not avoid acknowledging in the face of incontrovertible proof.” The Supreme Court rejected this argument, noting that statements against interest need not be on novel or controversial issues, or the only proof of a given claim. Thus, these statements were properly admitted by the trial judge and considered by the jury to apportion fault.