THOMASINA FOWLER, ETC. VS. AKZO NOBEL CHEMICALS, Â INC.(L-4820-11, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2300-15T4
THOMASINA FOWLER, individually
and as administrator and
administrator ad prosequendum
of the estate of WILLIS EDENFIELD,
Plaintiff-Appellant,
v.
AKZO NOBEL CHEMICALS, INC., AS
SUCCESSOR TO IMPERIAL CHEMICAL
INDUSTRIES PLC AND NATIONAL STARCH
AND CHEMICAL CO.; CORN PRODUCTS
INTERNATIONAL INC., AS SUCCESSOR
TO NATIONAL STARCH AND CHEMICALS
CO.; HENKEL CORPORATION,
INDIVIDUALLY AND AS SUCCESSOR IN
INTEREST TO THE ADHESIVE AND
ELECTRONICS DIVISION OF NATIONAL
STANDARD CHEMICHAL CO.; NATIONAL
STARCH, L.L.C., INDIVIDUALLY AND
AS SUCCESSOR TO NATIONAL STARCH
AND CHEMICAL CO.,
Defendants,
and
UNION CARBIDE CORPORATION,
Defendant-Respondent.
___________________________________
Argued March 23, 2017 – Decided May 17, 2017
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-
4820-11.
Robert E. Lytle argued the cause for appellant
(Szaferman, Lakind, Blumstein & Blader, P.C.,
and Levy Konigsberg, L.L.P., attorneys; Mr.
Lytle and Jeffrey P. Blumstein, on the
briefs).
Richard D. Picini argued the cause for
respondent (Caruso Smith Picini, attorneys;
Mr. Picini, on the brief).
PER CURIAM
In October 2010, decedent Willis Edenfield, received a
diagnosis of mesothelioma as a result of workplace exposure to
asbestos and succumbed to his illness three months later.
Following his death, plaintiff, decedent's widow, brought a
wrongful death and product liability action against defendant
Union Carbide Corporation (UCC) and other parties on behalf of the
decedent's estate. The lawsuit was filed after decedent died, and
he was never deposed. Plaintiff appeals from the trial court's
December 23, 2015 order granting summary judgment to UCC. Because
we are satisfied plaintiff presented sufficient evidence that a
reasonable jury could infer decedent suffered asbestos exposure
from defendant's products, we reverse.
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Decedent worked at a chemical plant in Bloomfield from 1954
to 1994, which manufactured asbestos-containing adhesive products.
UCC supplied Calidria asbestos to this facility from 1970 to 1982.
From 1970 to 1971, UCC delivered at least 1550 pounds of a specific
type of asbestos to the Bloomfield facility, and from 1971 to
1982, UCC delivered 36,823 pounds of another type of asbestos to
the location.
During discovery, two of the decedent's former coworkers,
Lucius Boyd and Rodney Dover, testified regarding decedent's job
and the conditions at the facility. The facility contained a six-
building compound. Asbestos-containing products were manufactured
there. Various companies, including UCC, supplied asbestos to the
facility's receiving department, and the facility then stored the
asbestos in the warehouse. Decedent retrieved powdered materials,
including asbestos, by scooping it out and placing it in bags
before taking the material to work locations. Decedent worked in
the mill room connected to the asbestos warehouse.
Dover testified he saw two types of asbestos in the facility.
He remembered seeing bags with "John Mansville" on them that also
said "asbestos." Dover did not remember the other asbestos
providers. However, he recalled UCC provided materials to the
company. Dover observed decedent using asbestos in the mill room
and knew decedent was using asbestos. Dover stated "some of the
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products we milled had asbestos in them," and "at that point
[Dover] knew what asbestos was." In the mill room, decedent
scooped, weighed, and mixed the necessary ingredients, including
asbestos. The air of the mill room contained visible dust, and
the decedent wore a mask while he worked for this reason.
Boyd worked at the facility from 1956-1964, outside the time
UCC provided the facility with asbestos. Boyd testified decedent
worked in the powder room with him during the period they both
worked there. Boyd testified he "assume[d]" the company used
asbestos when he worked there. He recalled seeing packaging that
said "asbestos" on more than one occasion but did not recall where.
Following the completion of discovery, UCC moved for summary
judgment, which the trial court granted, finding insufficient
evidence the decedent was exposed to UCC's asbestos while working
at the Bloomfield facility. This appeal followed.
On appeal, plaintiff argues the summary judgment order should
be vacated because "the evidence is sufficient to create a genuine
issue of material fact as to whether decedent . . . was exposed
to respirable asbestos from [UCC]'s products." We agree.
In a products liability, failure-to-warn case, a plaintiff
must prove (1) the product was defective; (2) the defect existed
when the product left the defendant's control; and (3) the defect
caused injury to a reasonably foreseeable user. James v. Bessemer
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Processing Co., 155 N.J. 279, 296 (1998); Coffman v. Keene Corp.,
133 N.J. 581, 593 (1993). In an asbestos failure-to-warn case,
"a plaintiff must prove two types of causation: product-defect
causation and medical causation." Becker v. Baron Bros., 138 N.J.
145, 152 (1994); Coffman, supra, 133 N.J. at 594; Hughes v. A.W.
Chesterton Co., 435 N.J. Super. 326, 337 (App. Div.), certif.
denied, 220 N.J. 41 (2014). Here the issue is medical causation.
"[M]edical causation means that exposure to the defendant's
asbestos proximately caused the injury." Becker, supra, 138 N.J.
at 152 (citing Coffman, supra, 133 N.J. at 581). To prove medical
causation, a plaintiff must show the exposure to the defendant's
asbestos products was a "substantial factor" in causing the injured
party's disease. James, supra, 155 N.J. at 299 (citing Sholtis
v. Am. Cyanamid Co., 238 N.J. Super. 8, 30-31 (App. Div. 1998)).
We look to the "frequency, regularity, and proximity," as
pronounced in Sholtis, supra, 238 N.J. Super. at 28-29, in order
to determine whether the party's exposure to the defendant's
asbestos-containing product was a "substantial factor" in causing
the alleged injury. James, supra, 155 N.J. at 302-04; Hughes,
supra, 435 N.J. Super. at 337-38; Provini v. Asbestospray Corp.,
360 N.J. Super. 234, 239 (App. Div. 2003). The frequency,
regularity, and proximity test "is not a rigid test with an
absolute threshold level necessary to support a jury verdict."
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James, supra, 155 N.J. at 302 (quoting Tragarz v. Keene Corp., 980
F.2d 411, 420 (7th Cir. 1992)). "[T]he phraseology should not
supply 'catch words[,]' [and] the underlying concept should not
be lost." Sholtis, supra, 238 N.J. Super. at 29. However,
"liability should not be imposed on mere guesswork," and the
"[i]ndustry should not be saddled with . . . open-ended exposure
based upon 'a casual or minimum contact.'" Hughes, supra, 435
N.J. Super. at 345.
Here, it was undisputed that from 1970 to 1971, UCC delivered
at least 1550 pounds of a specific type of asbestos to the
Bloomfield facility, and from 1971 to 1982, 36,823 pounds of
another type of asbestos to the location. We recognize mere
presence of products supplied by UCC at the location decedent
worked does not provide sufficient "actual proof linking the
exposures of [plaintiffs] to those products." Goss v. Am. Cyanamid
Co., 278 N.J. Super. 227, 236 (App. Div. 1994). Plaintiff must
"prove the source of that asbestos was the asbestos-containing
product of a particular defendant." Kurak v. A.P. Green
Refractories Co., 298 N.J. Super. 301, 311-12 (App. Div.), certif.
denied, 152 N.J. 10 (1997).
However, the evidence also shows decedent regularly worked
directly with the injury-producing element of asbestos, the
contaminated friable dust, during that twelve-year period. See
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Hughes, supra, 435 N.J. Super. at 345 ("We have required that
plaintiffs present proof the injured party has had such exposure
to specific products manufactured or sold by the defendant.").
The testimony establishes decedent's contact with asbestos was
frequent, regular, and proximate. The causation of injury by
defendant's products can be proven through use of circumstantial
evidence, as courts have recognized "proof of direct contact is
almost always lacking" in these matters. Ibid. (citation omitted).
Here, the trial judge granted summary judgment, citing to
Provini; however, unlike the plaintiff in Provini who could not
provide evidence of the work the decedent performed, plaintiff
here presented testimony specifically describing the job decedent
performed at the Bloomfield facility. See Provini, supra, 360
N.J. Super. at 238. Also unlike Provini, who presented no evidence
the decedent was actually exposed to asbestos, the testimony
established decedent's work involved frequent, direct contact with
asbestos. See Ibid. Plaintiff is not merely claiming asbestos
was present within the building, but decedent frequently touched
asbestos while performing his daily job duties.
Decedent suffered exposure that is more direct than in other
cases upon which UCC relies. In Kurak, the plaintiffs suffered
asbestos exposure from asbestos in the pipes where they worked.
Kurak, supra, 298 N.J. Super. at 311. In Goss, the plaintiffs
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spent at least thirty percent of their time working with asbestos
insulation and sometimes worked with boilers containing asbestos
insulation. Goss, supra, 278 N.J. Super. at 237. Here, the
decedent regularly scooped, weighed, and mixed ingredients,
including asbestos.
While UCC presented evidence other companies provided
asbestos during this period and no witness could unequivocally
link UCC's asbestos to decedent, plaintiff presented evidence UCC
provided over 40,000 pounds of asbestos to the facility over a
twelve-year period while the decedent worked handling asbestos.
Thus, we are satisfied plaintiff has presented at least enough
evidence to survive a motion for summary judgment. Based on the
evidence presented, a reasonable jury could infer the decedent
suffered from exposure to UCC's asbestos.
Reversed.
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