A-0778-11t2 Elbert Hughes v. A.W. Chesterton Co.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0778-11T2
A-0779-11T2
A-4912-11T2
A-4913-11T2
ELBERT HUGHES,
Plaintiff-Appellant, APPROVED FOR PUBLICATION
v. April 23, 2014
A.W. CHESTERTON CO.; BRAND APPELLATE DIVISION
INSULATIONS, INC; FOSTER
WHEELER CORP.; GARLOCK,
INC.; METROPOLITAN LIFE;
WESTINGHOUSE ELECTRIC CORP.;
DURAMETALLIC CORP.; GENERAL
ELECTRIC CO., and MELRATH
GASKET & SUPPLY,
Defendants,
and
GOULDS PUMPS, INC.,
Defendant-Respondent.
________________________________________
MICHAEL GREEVER,
Plaintiff-Appellant,
v.
A.W. CHESTERTON CO.; BRAND
INSULATIONS, INC; FOSTER
WHEELER CORP.; GARLOCK, INC.;
METROPOLITAN LIFE; HOPEMAN
BROTHERS, INC.; INGERSOLL-RAND
CO. LTD.; MADSEN & HOWELL,
INC.; DURAMETALLIC CORP.;
WOOLSULATE CORP.; GENERAL
ELECTRIC CO.; and MELRATH
GASKET & SUPPLY,
Defendants,
and
GOULDS PUMPS, INC.,
Defendant-Respondent.
________________________________________
GREGORY FAYER, Executor of
the Estate of THOMAS FAYER,
Deceased,
Plaintiff-Appellant,
v.
A.W. CHESTERTON CO.; BRAND
INSULATIONS, INC; DURAMETALLIC
CORP.; FOSTER WHEELER CORP.;
GENERAL ELECTRIC CO.; METROPOLITAN
LIFE; OWENS-ILLINOIS, INC.; HOPEMAN
BROTHERS, INC.; MADSEN & HOWELL,
INC.; WOOLSULATE CORP.; and
INGERSOLL-RAND CO. LTD.,
Defendants,
and
GOULDS PUMPS, INC.,
Defendant-Respondent.
________________________________________
ANGELO MYSTRENA and
KATHLEEN MYSTRENA,
2 A-0778-11T2
Plaintiffs-Appellants,
v.
A.W. CHESTERTON CO.; BRAND
INSULATIONS, INC; DURAMETALLIC
CORP.; FOSTER WHEELER CORP.;
METROPOLITAN LIFE; HOPEMAN BROTHERS,
INC.; MADSEN & HOWELL, INC.; WOOLSULATE
CORP.; and INGERSOLL-RAND CO. LTD.,
Defendants,
and
GOULDS PUMPS, INC.,
Defendant-Respondent.
_______________________________________________________________
Argued September 17, 2013 – Decided April 23, 2014
Before Judges Fisher, Espinosa and Koblitz.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket Nos.
L-5671-08, L-10779-08, L-5016-10, and L-
4208-10.
Franklin P. Solomon argued the cause for
appellants (Locks Law Firm, LLC, attorneys;
Mr. Solomon and James J. Pettit, on the
briefs).
Richard J. Mirra and Steven F. Satz argued
the cause for respondent (Hoagland, Longo,
Moran, Dunst & Doukas, LLP, attorneys; Mr.
Mirra and Mr. Satz, of counsel and on the
briefs).
The opinion of the court was delivered by
ESPINOSA, J.A.D.
3 A-0778-11T2
In these consolidated cases, we consider whether a
manufacturer has a duty to warn that component parts, which will
be regularly replaced as part of routine maintenance, contain
asbestos. Under the facts of this case, we find it would be
reasonable, practical and feasible to impose such a duty here.
However, we also reject plaintiffs' argument that causation may
be proved by proximity to defendant's product in the absence of
proof they were exposed to an asbestos-containing product
manufactured or sold by defendant and, therefore, conclude
plaintiffs failed to make a prima facie showing of causation.
Plaintiffs Michael Greever, Elbert Hughes, Thomas Fayer,1
and Angelo Mystrena (collectively plaintiffs) appeal from orders
that granted summary judgment to defendant Goulds Pumps, Inc.
(Goulds), dismissing their claims with prejudice. The claims
arise from plaintiffs' allegations that they contracted
asbestos-related diseases as a result of their exposure to
asbestos contained in component parts of pumps manufactured by
Goulds.2
1
Thomas Fayer's son, Gregory Fayer, brings this appeal on his
late father's behalf.
2
Thomas Fayer, a member of the Asbestos Workers Union, Local
14, was diagnosed with lung cancer in July 2009 and died in
January 2010 at the age of eighty-one. Angelo Mystrena, a
member of the International Association of Heat and Frost
Insulators and Asbestos Workers, Local 89, was diagnosed with
Footnote continued on next page.
4 A-0778-11T2
The facts are largely undisputed. The majority of the
pumps manufactured by Goulds until 1985 contained asbestos in
their gaskets and packing. Because the pumps have a long useful
life, Goulds knew, at the time it introduced the pumps into the
marketplace, that these asbestos-containing parts would have to
be replaced as part of routine maintenance. By the time
plaintiffs worked in proximity to Goulds pumps, the original
gaskets and packing had been replaced, and it is unknown who
manufactured or supplied the replacement gaskets and packing.
All plaintiffs alleged that Goulds is strictly liable for
its failure to warn because it was foreseeable that asbestos-
containing products would be used when the gaskets and packing
were replaced. In addition, Fayer and Mystrena assert that
Goulds is liable on common law negligence grounds. Goulds
submits that plaintiffs failed to show they were exposed to
friable asbestos from a product it had manufactured,
distributed, sold, or supplied and that this failure was fatal
to their ability to present a prima facie case that Goulds was
strictly liable. In addition, Goulds argues that strict
liability principles are limited to those in the chain of
distribution of the product that caused harm.
asbestosis in December 2009. Greever and Hughes allege they
suffer from asbestos-related pulmonary disease.
5 A-0778-11T2
We review the orders granting summary judgment using the
same standard as the trial court, Coyne v. N.J. Dep't of
Transp., 182 N.J. 481, 491 (2005), viewing the evidence in the
light most favorable to plaintiffs to determine whether there is
any genuine issue of material fact that precludes judgment in
favor of defendant as a matter of law. R. 4:46-2(c); see also
Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). The
circumstances of this case suggest that Goulds had a duty to
warn that component parts of its pumps contained asbestos.
However, despite drawing reasonable inferences from the record
in the light most favorable to plaintiffs, we also conclude that
summary judgment was properly granted here because plaintiffs
failed to make a prima facie showing of causation.
I
Goulds filed summary judgment motions in the Hughes and
Greever cases in August 2011. In support of its motions for
summary judgment,3 Goulds argued each plaintiff failed to present
evidence he was exposed to asbestos products it had
manufactured, distributed, or supplied at all, "let alone with
frequency, regularity and proximity" sufficient to meet the
3
The briefs in the Greever and Hughes matters were submitted
pursuant to Rule 2:6-1(a)(2). The motion briefs in the other
cases are not part of the record before us.
6 A-0778-11T2
standard adopted in Sholtis v. Am. Cyanamid Co., 238 N.J. Super.
8, 28-29 (App. Div. 1989).
In granting summary judgment, the trial court noted,
"obviously" plaintiff4 "worked on Goulds Pumps" but stated,
there's absolutely zero proof that Gould[s]
supplied, manufactured, or anything, the
replacement gaskets and packing, so what
this fellow may have been exposed to was a
product manufactured and sold by someone
else.
Plaintiff's counsel agreed but argued that Goulds should be
strictly liable for its failure to provide a warning because the
original component parts contained asbestos, the component parts
were necessary parts of the pumps, and, for much of the time
thereafter, the majority of replacement parts available
contained asbestos. The court stated summary judgment would
have been denied if there was proof Goulds required the use of
replacement parts that contained asbestos. However, the court
concluded summary judgment was appropriate as to both
plaintiffs' products liability and negligence claims in the
absence of such proof or evidence the replacement component
parts were manufactured or sold by Goulds.
4
The transcript of oral argument of the Greever motion has been
supplied, and plaintiff Hughes represents that the oral
arguments of the Hughes and Greever motions were conducted back
to back. No separate transcript of the Hughes oral argument has
been supplied as part of the record here.
7 A-0778-11T2
In November 2011, Goulds filed a motion for summary
judgment in the Fayer and Mystrena matters. In support of its
motions, Goulds again asserted that each of the plaintiffs had
failed to present evidence "he was exposed to friable asbestos
manufactured, distributed and/or supplied by" Goulds. Although
plaintiffs disputed this assertion, they concede in their
appellate briefs that the manufacturers of the replacement parts
in use when they worked in proximity to Goulds pumps cannot be
identified.
The trial court granted summary judgment in the Fayer and
Mystrena cases. In its written decision, the court identified
the issue as "Goulds's liability for failure to warn in
connection with exposure to asbestos-containing replacement
parts that it did not specify, require, manufacture, sell,
supply or distribute." The court noted the replacement parts
were installed "five, 10, 20 and even 30 years after the sale of
the pumps or other devices" and that "the asbestos replacement
parts were not specified by the manufacturer nor were they
required for the operation of the device." The court concluded
that because long-standing New Jersey law requires the defect to
exist when the product leaves the defendant's control, liability
should be limited to those defendants in the chain of
distribution of the defective product.
8 A-0778-11T2
In their appeal, plaintiffs Hughes and Greever argue that
the trial court erred in granting summary judgment on "product
identification," "component part liability," and on a theory
allegedly raised by the court sua sponte. Plaintiffs Fayer and
Mystrena argue Goulds is strictly liable for its failure to warn
of the asbestos hazard inherent in its product through the life
of the product, citing support for this argument from other
jurisdictions; Goulds is liable in negligence.
II
The Product Liability Act (PLA), N.J.S.A. 2A:-58(c)-1 to -
11, "generally 'leaves unchanged the . . . theories under which
a manufacturer . . . may be held strictly liable for harm caused
by a product,'" serving the Legislature's intent "that the
common law should fill the interstices left by the terms of the
Act." Jurado v. W. Gear Works, 131 N.J. 375, 384 (1993)
(internal citation omitted); see Senate Judiciary Committee,
Statement to Senate Committee Substitute for S. 2805 (Mar. 23,
1987).5 Moreover, because the asbestos claims asserted here fall
5
In addition, the legislative committee and sponsor statements
with regard to all product liability causes of action make clear
that warning defect cases are still largely governed by the
common law. See, e.g., Assembly Insurance Committee, Statement
to Senate Committee Substitute for S. 2805 (June 22, 1987);
Sponsor's Statement to S. 2805 (Nov. 17, 1986).
9 A-0778-11T2
within the environmental tort exception6 to the PLA, N.J.S.A.
2A:58C-6, In re Lead Paint Litigation, 191 N.J. 405, 439 (2007);
Stevenson v. Keene Corp., 131 N.J. 393, 395-96 (1993), common
law principles apply. As a result, plaintiffs' products
liability action "may rest on grounds of negligence, strict
liability, or both." James v. Bessemer Processing Co., 155 N.J.
279, 295-96 (1998). The most significant distinction between
the two causes of action is that, in a strict liability case, it
is presumed the seller "knew of the product's propensity to
injure as it did" while in the ordinary negligence case "such
knowledge must be proved; the standard is what the manufacturer
'knew or should have known.'" Id. at 296 (quoting Freund v.
Cellofilm Props., Inc., 87 N.J. 229, 239 (1981)); see also
Promaulayko v. Johns Manville Sales Corp., 116 N.J. 505, 509-10
(1989).
A strict liability claim requires proof "'that the product
was defective, that the defect existed when the product left the
defendant's control, and that the defect caused injury to a
reasonably foreseeable user.'" Zaza v. Marquess & Nell, 144
6
N.J.S.A. 2A:58C-1(b)(4) defines such action as "a civil action
seeking damages for harm where the cause of the harm is exposure
to toxic chemicals or substances, but does not mean actions
involving drugs or products intended for personal consumption or
use."
10 A-0778-11T2
N.J. 34, 49 (1996) (quoting Feldman v. Lederle Labs., 97 N.J.
429, 449 (1984)). As alleged here, the defect is "the failure
to warn unsuspecting users that the product can potentially
cause injury." Id. at 57.
The analysis of whether strict liability applies thus
begins with the assumption the manufacturer or seller knew of
the product's defect and then proceeds to "the ultimate question
. . . whether the manufacturer acted in a reasonably prudent
manner" as of the time the product was introduced into the
marketplace. Id. at 49-50; Fischer v. Johns-Manville Corp., 103
N.J. 643, 654 (1986); Feldman, supra, 97 N.J. at 450-51; Green
v. General Motors Corp., 310 N.J. Super. 507, 516 (App. Div.),
certif. denied, 156 N.J. 381 (1998). A defendant satisfies its
obligation by proving it "acted in a reasonably prudent manner
in marketing the product or in providing the warnings given."
Feldman, supra, 97 N.J. at 451.
The mere absence of a warning on an asbestos-containing
product does not render the product defective. Despite the
"unique problems in litigation" presented by asbestos cases,
Provini v. Asbestospray Corp., 360 N.J. Super. 234, 237-38 (App.
Div. 2003), "[o]ur courts have acknowledged that asbestos-
containing products are not uniformly dangerous and thus" it
should not be presumed that all such products "pose the same
11 A-0778-11T2
risks about which the users of those products must be warned,
regardless of the differences in those products." Becker v.
Baron Bros., 138 N.J. 145, 159-61 (1994); see also James, supra,
155 N.J. at 309-10. Because "the term 'asbestos-containing
products' describes a variety of materials with differing
amounts of asbestos and different built-in safeguards," Becker,
supra, 138 N.J. at 160, the "analysis should focus on the
specific product before the court." Id. at 159. The Court
explicitly rejected the notion that "any friction product that
contains asbestos is defective if it does not contain a
warning." Id. at 154.
The plaintiff in an asbestos failure to warn case must also
prove two types of causation: product-defect causation and
medical causation. Product-defect causation requires proof that
the defect — here, a failure to warn — existed when the product
left the defendant's control and that the absence of a warning
caused injury to a reasonably foreseeable user.7 James, supra,
155 N.J. at 296; Becker, supra, 138 N.J. at 152; Coffman, supra,
133 N.J. at 593-95; Goss v. Am. Cyanamid, Co., 278 N.J. Super.
227, 235-37 (App. Div. 1994). To present a prima facie case of
7
We presume that, if a warning had been provided, plaintiffs
would have heeded the warning. Coffman v. Keene Corp., 133 N.J.
581, 603 (1993).
12 A-0778-11T2
medical causation, a plaintiff must satisfy the "frequency,
regularity and proximity" test we adopted in Sholtis, supra, 238
N.J. Super. at 28-29.
III
We first address the question whether Goulds had a duty to
provide a warning here.8 In Michalko v. Cooke Color & Chem.
Corp., 91 N.J. 386, 394 (1982), the Court stated, "Under New
Jersey law, manufacturers, as well as all subsequent parties in
the chain of distribution, are strictly liable for damages
caused by defectively designed products." Ibid. In
Promaulayko, supra, 116 N.J. at 511, the Court expressly
included distributors and retailers who "may be innocent
conduits in the sale of the defective product" as subject to
liability. Relying upon such principles, Goulds argues that it
owed no duty to plaintiffs who were allegedly harmed by
replacement parts because it was not in the "chain of
distribution" of those parts. We view Goulds's interpretation
of the "chain of distribution" as unduly limited when applied to
the facts of this case.
A warning is intended to reduce the risk from a product "to
the greatest extent possible without hindering its utility."
8
Because this case is not governed by the PLA, our analysis is
not limited by the statutory definitions for parties who may be
held liable. See N.J.S.A. 2A:58C-8.
13 A-0778-11T2
Beshada v. Johns-Manville Prods. Corp., 90 N.J. 191, 201 (1982).
The duty to warn requires a manufacturer or supplier of products
to "take reasonable steps to ensure that its warning reaches"
the employees who will use the product in question. Coffman,
supra, 133 N.J. at 606. Such reasonable steps may include:
providing a warning to persons other than the ultimate user,
see, e.g., Michalko, supra, 91 N.J. at 402 (holding it may be
necessary for the manufacturer or seller to provide a warning to
both the employer and the employee who uses an unsafe product so
the employer is aware of the need to alert employees to the
danger posed); see also Davis v. Wyeth Labs, Inc., 399 F.2d 121,
131 (9th Cir. 1968) (holding drug manufacturer had duty to
ensure that warnings of drug's risks reached both doctor and
consumer); may extend to products it has not placed in the
stream of commerce, see, e.g., Molino v. B.F. Goodrich Co., 261
N.J. Super. 85, 93 (App. Div. 1992), certif. denied, 134 N.J.
482 (1993); Seeley v. Cincinnati Shaper Co., Ltd., 256 N.J.
Super. 1, 18 (App. Div.), certif. denied, 130 N.J. 598 (1992);
see also Macias v. Saberhagen Holdings, Inc., 282 P.3d 1069,
1076-77 (Wash. 2012) (finding, based upon "the general rule that
a manufacturer in the chain of distribution is subject to
liability for failure to warn of the hazards associated with use
of its own products," that defendants could be strictly liable
14 A-0778-11T2
because "when the products were used exactly as intended and
cleaned for reuse exactly as intended they inherently and
invariably posed the danger of exposure to asbestos"); and, when
a manufacturer learns of dangers associated with its product
after the product has left its control, may require the issuance
of warnings thereafter. Molino, supra, 261 N.J. Super. at 93.
As we have noted, the nature of the product is an important
factor in assessing the reasonableness of defendant's conduct in
failing to provide a warning. It is undisputed that the pump as
originally marketed had gaskets and packing that contained
asbestos. However, the parties disagree as to whether this made
the pump dangerous. See Becker, supra, 138 N.J. at 158-59
(finding that a jury question was presented by conflicting
expert testimony regarding the risk posed by processed
chrysotile asbestos).
Eugene Bradshaw, Goulds's corporate designee, testified it
was reasonable for Goulds to conclude there were no risks
associated with the asbestos components because the gasket is
contained between metal parts and the packing "contains
rubberizing gumming things, and it's lubricated when it's being
used." However, plaintiffs presented evidence that workers were
exposed to asbestos when the gaskets and packing were replaced.
Like his father, Thomas, Gregory Fayer was a member of the
15 A-0778-11T2
Asbestos Workers Union, Local 14, and worked as an insulator.
He supplied a certification in which he recounted his personal
observations of such replacements and stated, "[t]he dust from
removing old gaskets and cutting and fitting new gaskets in
Goulds pumps and the dust from pulling out old packing and
stuffing in new packing in Goulds pumps, was visible, and was in
the air where Thomas Fayer was working."
Although we have little evidence from the record regarding
the specific dangers posed by the asbestos contained within the
replacement parts, plaintiffs are entitled to the inference that
the replacement of gaskets and packing posed a risk of asbestos
exposure to workers in proximity to the replacement work. See
Becker, supra, 138 N.J. at 165 (predicting that "products-
liability-case defendants will rarely, if ever, be able to
produce any evidence demonstrating that a dangerous asbestos
product marketed without a warning . . . is not defective.").
Under a strict liability analysis, Goulds is presumed to know of
any danger its product, which included the asbestos-containing
components, posed to users. James, supra, 155 N.J. at 296.
Proceeding on the assumption that the lack of a warning
rendered the original pump dangerous when it entered the
marketplace, we turn to determining the foreseeable users and
uses of the product. See Campos v. Firestone Tire & Rubber Co.,
16 A-0778-11T2
98 N.J. 198, 206 (1984) ("Generally, the duty to warn extends
only to foreseeable users of the product and to uses that
reasonably should have been objectively anticipated.")
Plainly, when a manufacturer requires the use of a
component part, the danger posed by that replacement part is
reasonably anticipated. See Molino, supra, 261 N.J. Super. at
93-94. Further, when the danger posed by a product was
"inherent in the machine as originally manufactured" and the
specific replacements "could reasonably have been contemplated,"
we held that the mere replacement of major components in a
machine will not absolve the manufacturer of a duty to warn.
Seeley, supra, 256 N.J. Super. at 18. But see Surre v. Foster
Wheeler LLC, 831 F. Supp. 2d 797, 800-01 (S.D.N.Y. 2011)
(addressing question whether a manufacturer had "a duty to warn
against the dangers of a third party's product that might be
used in conjunction with its own" and observing that, generally,
no duty arises if the manufacturer "had no control over the
production of the defective product[,] did not place it into the
stream of commerce[,] . . . and played no part in selecting the
defective product") (emphasis added).
In this case, asbestos-containing gaskets and packing posed
an inherent danger in the pumps as originally manufactured. The
fact that these component parts would be replaced regularly as
17 A-0778-11T2
part of routine maintenance did not absolve Goulds of any duty
to warn because it was reasonably foreseeable that these
components would be replaced as part of regular maintenance.
See Seeley, supra, 256 N.J. Super. at 18; Ridenour v. Bat Em
Out, 309 N.J. Super. 634, 642-43 (App. Div. 1998) (holding that
because reasonably anticipated use includes foreseeable misuse,
a duty exists to warn against foreseeable misuses of a product).
Although Goulds did not require that either the original
gaskets and packing or their replacements contain asbestos, its
corporate designee was unaware of any substitutes for asbestos
for the components in Gould's pumps until the late 1960s or
early 70s. Therefore, it was reasonably foreseeable, at the
time the pumps were placed into the marketplace, that the
gaskets and packing would be replaced regularly with gaskets and
packing that contained asbestos. Goulds could not rely upon
plaintiffs' employers or others responsible for the replacement
parts to issue a warning to employees because the duty to warn
is nondelegable. See Beadling v. William Bowman Assocs., 355
N.J. Super. 70, 88 (App. Div. 2002). As a result, the
foreseeable class of users included not only those workers who
came into contact with the pumps as originally manufactured, but
also those workers who came into contact with the component
18 A-0778-11T2
parts as part of regular maintenance. Plaintiffs fall within
this latter class.
Foreseeability of harm is "'a crucial element in
determining whether imposition of a duty on an alleged
tortfeasor is appropriate.'" Carvalho v. Toll Bros. &
Developers, 143 N.J. 565, 572 (1996) (quoting Carter Lincoln-
Mercury, Inc. v. EMAR Grp., Inc., 135 N.J. 182, 194 (1994)).
However, although an important consideration, foreseeability of
injury is not dispositive. Estate of Desir ex rel. Estiverne v.
Vertus, 214 N.J. 303, 317 (2013); Kuzmicz v. Ivy Hill Park
Apts., 147 N.J. 510, 515 (1997). Even when it has been
determined that harm to a particular individual is foreseeable,
"considerations of fairness and policy govern whether the
imposition of a duty is warranted." Olivo v. Owens-Illinois,
Inc., 186 N.J. 394, 401-03 (2006) (citing Carter Lincoln-
Mercury, supra, 135 N.J. at 194-95). We conduct our inquiry "in
light of the actual relationship between the parties under all
of the surrounding circumstances," Hopkins v. Fox & Lazo
Realtors, 132 N.J. 426, 438 (1993), to determine "whether the
imposition of such a duty satisfies an abiding sense of basic
fairness under all of the circumstances in light of
considerations of public policy." Id. at 439.
19 A-0778-11T2
"The overriding goal of strict products liability is to
protect consumers and promote product safety," Fischer, supra,
103 N.J. at 657. In Becker, supra, 138 N.J. at 165-166, the
Supreme Court noted the following observation with approval:
Experience demonstrates that an asbestos-
related product is unsafe because a warning
could have made it safer at virtually no
added cost and without limiting its utility.
Indisputably, a warning would have lessened
exposure and avoided countless injuries.
[Ibid. (quoting Campolongo v. Celotex Corp.,
681 F. Supp. 261, 264 (D.N.J. 1988)).]
Mindful that the purpose of a warning is to reduce the risk
of a product "to the greatest extent possible without hindering
its utility," Beshada, supra, 90 N.J. at 201, we also assume
that the cost of including a warning when the pump is originally
marketed would have "but a slight impact on the risk-utility
analysis, since such cost would generally have little, if any,
effect on a product's utility," Campos, supra, 98 N.J. at 207,
and that the manufacturer has the capacity to include any
attendant additional cost to purchasers as needed.
In Zaza, supra, 144 N.J. at 50, the Court considered
whether the duty to install safety devices should be imposed
when the "finished product is the result of work by more than
one party." The Court stated, "a court must examine at what
stage installation of safety devices is feasible and
20 A-0778-11T2
practicable." Ibid. That reasoning is equally apt in
considering whether there should be a duty to warn at the
initial marketing stage here.
We note that imposing a duty to warn at that stage is more
likely to affect the entire class of foreseeable users than at
any other time in the life of the pump. Since the risk of
exposure continued and was perhaps increased by the replacement
process, a warning given at the time of the initial sale would
ensure that this information was available to be considered in
subsequent decisions regarding the choice of replacement parts
and any additional safeguards for workers who made the
replacements. We therefore conclude that it would be
reasonable, practical, and feasible to impose a duty to warn
upon Goulds under the facts here.
IV
Generally, the most difficult problem for plaintiffs in
toxic tort cases is the burden of proving causation. See Ayers
v. Jackson Twp., 106 N.J. 557, 585 (1987). Summary judgment was
appropriate here because plaintiffs failed to satisfy that
burden.
The Sholtis causation standard was first pronounced in
Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63
(4th Cir. 1986). See, e.g., James, supra, 155 N.J. at 300-03;
21 A-0778-11T2
Vassallo v. Am. Coding & Marking Ink. Co., 345 N.J. Super. 207,
215-16 (App. Div. 2001). "To support a reasonable inference of
substantial causation from circumstantial evidence, there must
be evidence of exposure to a specific product on a regular basis
over some extended period of time in proximity to where the
plaintiff actually worked." Lohrmann, supra, 782 F.2d at 1162-
63. These factors "should be balanced for a jury to find
liability." Sholtis, supra, 238 N.J. Super. at 28. The purpose
for this stringent standard was for liability to be assigned
"only to those defendants to whose products the plaintiff can
demonstrate he or she was intensely exposed." James, supra, 155
N.J. at 302-03. Therefore, in opposing summary judgment,
plaintiffs were required to "produce evidence from which a fact-
finder, after assessing the proof of frequency and intensity of
plaintiff's contacts with a particular manufacturer's friable
asbestos, could reasonably infer toxic exposure." Sholtis,
supra, 238 N.J. Super. at 29 (emphasis added).
Proof of direct contact "is almost always lacking," James,
supra, 155 N.J. at 301 (quoting Sholtis, supra, 238 N.J. Super.
at 29), and need not be proven by direct evidence of asbestos
exposure. Goss, supra, 278 N.J. Super. at 236. A plaintiff may
"rely upon circumstantial proof of sufficiently intense
22 A-0778-11T2
exposure," generally accompanied by expert proof,9 to warrant the
imposition of liability. James, supra, 155 N.J. at 301-02
(quoting Sholtis, supra, 238 N.J. Super. at 29); see also Kurak
v. A.P. Green Refactories Co., 298 N.J. Super. 304, 314 (App.
Div.), certif. denied, 152 N.J. 10 (1997).
Still, liability should not be imposed on mere guesswork.
Provini, supra, 360 N.J. Super. at 237-38. "Industry should not
be saddled with . . . open-ended exposure based upon 'a casual
or minimum contact.'" Sholtis, supra, 238 N.J. Super. at 29
(quoting Lohrmann, supra, 782 F.2d at 1162). Even if plaintiffs
are able to show that asbestos-containing products supplied by
defendant "were in use at the plant," such evidence is
insufficient for the imposition of strict liability "without
actual proof linking the exposures of [plaintiffs] to those
products." Goss, supra, 278 N.J. Super. at 236. Plaintiffs
must prove "that each of them were exposed to the asbestos from
those specific products frequently, on a regular basis, and with
sufficient proximity so as to demonstrate the requisite causal
9
To satisfy the standard, "[e]xpert proof would usually be
required to establish, even inferentially, that the exposures
caused or exacerbated plaintiffs' eventual injuries. This proof
would be in addition to the expert proof of the asbestos-related
injury itself." Sholtis, supra, 238 N.J. Super. at 29 n.16; see
also Vassallo, supra, 345 N.J. Super. at 215-16. The record
before us does not disclose if plaintiffs submitted such expert
evidence.
23 A-0778-11T2
connection between the exposure and plaintiffs' illnesses." Id.
at 236-37.
We have required that plaintiffs present proof the injured
party has had such exposure to specific products manufactured or
sold by the defendant. For example, in Vassallo, supra, 345
N.J. Super. at 215-16, we found plaintiff had presented proof
"she was regularly and frequently exposed to Resisto marking
ink," the defendant's product, which made her ill. In contrast,
in Provini, supra, 360 N.J. Super. at 237-238, we affirmed an
order granting summary judgment where plaintiff was unable to
prove the decedent was ever exposed to the asbestos-containing
product during his employment, rejecting the argument that it
should be assumed he was exposed because the product was used by
his employer during the time he was employed. See also Kurak,
supra, 298 N.J. Super. at 315-22 (reviewing cases in which
evidence of exposure was found sufficient and insufficient).
Plaintiffs argue they demonstrated the requisite contact to
survive summary judgment by showing they had sufficient contact
with Goulds pumps, without regard to what contact they had with
the component parts that allegedly caused their injuries. While
it is true that the alleged defect in the pump was a failure to
warn, it is also true that plaintiffs allege they were injured
by asbestos contained in parts that were replaced long after the
24 A-0778-11T2
pumps left Goulds's control. We do not agree that plaintiffs
may prove causation by showing exposure to a product without
also showing exposure to an injury-producing element in the
product that was manufactured or sold by defendant. If that
were the case, a manufacturer or seller who failed to give a
warning could be strictly liable for alleged injuries long after
the product entered the marketplace even if the injury-producing
element of the product no longer existed. The imposition of
liability based upon such proofs would rest upon no more than
mere guesswork, Provini, supra, 360 N.J. Super. at 238, and
would fail to limit liability "only to those defendants to whose
products the plaintiff can demonstrate he or she was intensely
exposed." James, supra, 155 N.J. at 302-03.
Plaintiffs concede they are unable to identify the
manufacturer or seller of the replacement parts that allegedly
made them ill. Because they failed to produce evidence they had
any contact with friable asbestos in replacement parts that were
manufactured or sold by Goulds, summary judgment was
appropriate. See Sholtis, supra, 238 N.J. Super. at 29.
V
Plaintiffs Fayer and Mystrena also argue that their
negligence claims against Goulds should have survived summary
judgment. We disagree.
25 A-0778-11T2
Although common law negligence is an available cause of
action to product liability plaintiffs, the Supreme Court has
recognized that "strict liability was more appropriate than
negligence doctrine for resolution of inadequate warning cases."
Coffman, supra, 133 N.J. at 598 (citing Freund, supra, 87 N.J.
at 237). Moreover, a negligence claim requires proof that
defendant knew or should have known that the failure to warn had
the propensity to injure these plaintiffs. Freund, supra, 87
N.J. at 239. Because plaintiffs failed to present such proof,
summary judgment was properly granted.
Affirmed.
26 A-0778-11T2