ARTHUR G. WHELAN VS. ARMSTRONG INTERNATIONAL INC. (L-7161-12, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3520-13T4
ARTHUR G. WHELAN,
Plaintiff-Appellant,
v.
APPROVED FOR PUBLICATION
ARMSTRONG INTERNATIONAL INC.; BURNHAM
LLC; CARRIER CORP., individually, August 6, 2018
d/b/a and as successor to Bryant APPELLATE DIVISION
Heating & Cooling Systems; CLEAVER-
BROOKS INC.; CROWN BOILER CO., f/k/a
Crown Industries Inc.; FORD MOTOR
CO.; JOHNSON CONTROLS INC.,
individually, d/b/a and as successor
to Evcon Industries Inc. and Coleman
Heating and Air Conditioning Products
Inc.; NIBCO INC.; and OAKFABCO INC.,
individually, d/b/a and as successor
to Kewanee Boiler Corp.;
Defendants-Respondents,
and
A. O. SMITH CORP.; AARON & CO.; AMG
INDUSTRIES INC., d/b/a and as
successor to Akron Metallic Gasket
Co.; AUTOMATIC SWITCH CO.; AUTOMOTIVE
BRAKE CO.; A.W. CHESTERTON CO.; BASF
CORP.; BERGEN INDUSTRIAL SUPPLY CO.;
BETHLEHEM DYNATHERM, a/k/a Dynatherm
Boiler Manufacturing Inc.; BINSKY &
SNYDER LLC, individually, d/b/a and
as successor to Binsky & Snyder Co.;
BONLAND INDUSTRIES INC.; BORGWARNER
MORSE TEC INC., as successor to Borg-
Warner Corp.; BRIGGS INDUSTRIES INC.;
CARLISLE COMPANIES INC.; CBS CORP.,
f/k/a Viacom Inc., successor by
merger to CBS Corp., f/k/a
Westinghouse Electric Corp.; CENTRAL
BRASS CO. INC., individually, d/b/a
and as successor to Central Brass
Manufacturing Co. and Central Brass &
Fixture Co.; CENTRAL ENGINEERING &
SUPPLY CO. INC.; CHICAGO FAUCET CO.;
CHICAGO-WILCOX MANUFACTURING CO.
INC.; COLFAX INC., individually and
as successor to Warner Electric Brake
& Clutch Co.; CRANE CO.; CROSSTOWN
PLUMBING SUPPLY INC.; DANA COMPANIES
LLC; DAP INC.; DUCTMATE INDUSTRIES
INC.; DUNHAM-BUSH INC.; DUNPHEY &
ASSOCIATES SUPPLY CO. INC.; DURO DYNE
CORP.; ECR INTERNATIONAL INC.,
individually, d/b/a and as successor
to Utica Boilers Inc., Utica Radiator
Corp., Dunkirk Boilers, Pennco Inc.,
and Olsen Technology Inc.; ESSEX
PLUMBING SUPPLY INC.; FISHER
SCIENTIFIC INTERNATIONAL INC.;
FORTUNE BRANDS HOME & SECURITY INC.,
individually, d/b/a and as successor
to Moen Inc.; FOSTER WHEELER LLC;
GENERAL ELECTRIC CO.; GEORGIA-PACIFIC
LLC; THE GOODYEAR TIRE & RUBBER CO.;
GOULDS PUMPS INC.; GRACO INC.;
GRUNDFOS PUMPS CORP.; H.B. SMITH CO.
INC.; HILCO INC., individually and as
successor to Universal Supply Group
Inc. and Amber Supply Co.; HONEYWELL
INTERNATIONAL INC., f/k/a Honeywell
Inc., Allied Signal Inc. and Bendix
Corp.; INTERLINE BRANDS INC.,
individually, d/b/a and as successor
to J.A. Sexauer Inc.; INTERNATIONAL
BUSINESS MACHINES CORP.; ITT CORP.;
KAISER GYPSUM CO. INC.; KANTOR SUPPLY
INC.; KOHLER CO., individually, d/b/a
and as successor to Sterling Faucet
Co.; LENNOX INDUSTRIES INC.,
individually, d/b/a and as successor
to Armstrong Furnace Co.; MAGNATROL
VALVE CORP.; MANHATTAN WELDING CO.
INC.; MAREMONT CORP.; MERITOR INC.,
individually and as successor to
2 A-3520-13T4
Rockwell International Corp.; MESTEK
INC., individually, d/b/a and as
successor to H.B. Smith Co., Smith
Cast Iron Boilers and Mills Boilers;
MUELLER INDUSTRIES INC.; NATIONAL
AUTOMOTIVE PARTS ASSOCIATION INC.;
NEW JERSEY BOILER REPAIR CO.; NCH
CORP., as successor to Creed Co. and
Daniel P. Creed Co. Inc.; NMBFIL
INC., f/k/a Bondo Corp.; OWENS-
ILLINOIS INC.; PEERLESS INDUSTRIES
INC.; PNEUMO-ABEX LLC, individually
and as successor to Abex Corp.; PRICE
PFISTER INC.; THE PRUDENTIAL
INSURANCE CO. OF AMERICA; RHEEM
MANUFACTURING CO.; RILEY POWER INC.,
f/k/a Riley-Stoker Corp.; ROBERTSHAW
CONTROLS CO., individually and as
successor to Fulton Sylphon Co.; SID
HARVEY INDUSTRIES INC.; SLANT/FIN
CORP.; SLOAN VALVE CO.; SOS PRODUCTS
CO. INC.; SPEAKMAN CO.; SUPERIOR
BOILER WORKS INC.; SUR-SEAL CORP.;
TACO INC.; TRANE U.S. INC.,
individually and as successor to
American Standard Inc. and American
Radiator Co.; TURNER CONSTRUCTION
CO.; UNILEVER UNITED STATES INC.;
UNIROYAL HOLDING INC.; VERIZON NEW
JERSEY INC., individually and as
successor to New Jersey Bell
Telephone Co.; VICTAULIC CO.;
WALLWORK BROS. INC.; WAL-RICH CORP.;
WEIL-MCLAIN, a division of the
Marley-Wylain Co., a wholly-owned
subsidiary of the Marley Co. LLC;
W.V. EGBERT & CO. INC.; YORK
INTERNATIONAL CORP.; ZURN INDUSTRIES
LLC, individually, d/b/a and as
successor to Erie City Iron Works and
Zurn Industries Inc.; AII ACQUISITION
LLC, individually, as successor to,
f/k/a, and d/b/a Holland Furnace Co.,
Athlone Industries Inc., T.F.C.
Holding Corp. and Thatcher Furnace
Co.; AMERICAN PREMIER UNDERWRITERS,
3 A-3520-13T4
individually and as successor to
Hydrotherm Corp.; AUGUST ARACE & SONS
INC.; HONEYWELL INC.; ROCKWELL
AUTOMATION INC., individually, d/b/a
and as successor to Sterling Faucet
Co.; ROCKWELL COLLINS INC.,
individually, d/b/a and as successor
to Sterling Faucet Co.; TRIMAS CORP.,
individually, d/b/a and as successor
to NI Industries Inc.; WILMAR
INDUSTRIES INC., individually, d/b/a
and as successor to J.A. Sexauer
Inc.; BASF CATALYSTS LLC; TRIMAS
CORP., individually and as successor
in interest to Norris Industries
and/or NI Industries Inc.; YORK
INTERNATIONAL CORP., individually and
as successor to The Coleman Company
Inc., a/k/a Coleman Heating and Air
Conditioning Products Inc.,
Defendants.
_________________________________________
Argued May 2, 2016
Before Judges Accurso, O'Connor, and Suter.
Reargued May 16, 2018 – Decided August 6, 2018
Before Judges Alvarez, Nugent, and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No.
L-7161-12.
Kevin P. Parker (The Lanier Law Firm, PLLC)
of the Texas bar, admitted pro hac vice,
argued the cause on May 2, 2016 and May 16,
2018, and Rachel A. Placitella argued the
cause on May 16, 2018, for appellant (Cohen,
Placitella & Roth, PC, attorneys; Rachel A.
Placitella, Nahid A. Shaikh, and Darron E.
Berquist (The Lanier Law Firm, PLLC) of the
New York bar, admitted pro hac vice, on the
briefs).
4 A-3520-13T4
Thomas J. Kelly, Jr. argued the cause for
respondent Armstrong International, Inc.
(Vasios, Kelly & Strollo, PA, attorneys;
Thomas J. Kelly, Jr., of counsel and on the
brief; Linda Fulop-Slaughter, on the brief).
Joseph D. Rasnek argued the cause for
respondent Burnham, LLC (McElroy, Deutsch,
Mulvaney & Carpenter, LLP, attorneys; Nancy
McDonald, of counsel and on the brief;
Christopher B. Bladel, on the brief).
Sara K. Saltsman argued the cause for
respondent Carrier Corporation (Mayfield,
Turner, O'Mara & Donnelly, P.C., attorneys;
Sara K. Saltsman, on the brief).
Karen J. Stanzione-Conte argued the cause
for respondents Cleaver-Brooks, Inc. and
Crown Boiler, Company (Reilly, Janiczek &
McDevitt, attorneys; Karen J. Stanzione-
Conte, Michelle B. Cappuccio and Colleen B.
Cavanaugh, on the briefs).
Robyn Gnudi Kalocsay argued the cause on May
2, 2016, and Sean M. Marotta argued the
cause on May 16, 2018, for respondent Ford
Motor Company (LeClair Ryan, attorneys;
Robin Gnudi Kalocsay and Michael D.
Goldklang, on the brief).
Marc S. Gaffrey argued the cause on May 2,
2016, and Jacob S. Grouser argued the cause
on May 16, 2018, for respondent Johnson
Controls, Inc. (Hoagland, Longo, Moran,
Dunst & Doukas, LLP, attorneys; Marc S.
Gaffrey, of counsel and on the brief; Anita
S. Cohen, on the brief).
Robert T. Connor argued the cause on May 2,
2016, and Stephanie A. DiVita argued the
cause on May 16, 2018, for respondent NIBCO,
Inc. (Pascarella DiVita, PLLP attorneys;
Robert T. Connor, of counsel and on the
brief; Angela Coll Caliendo, on the brief).
5 A-3520-13T4
Hawkins Parnell Thackston & Young LLP,
attorneys for respondent Oakfabco, Inc. (Roy
F. Viola, Jr., and Deena M. Crimaldi on the
brief).
The opinion of the court was delivered by
CURRIER, J.A.D.
In this products liability case arising out of exposure to
asbestos, we consider anew whether a manufacturer has a duty to
warn about the risk of harm from exposure to asbestos-containing
replacement parts integral to the function of the manufacturer's
product, even if the manufacturer did not fabricate or
distribute the replacement parts. We conclude that a duty to
warn exists when the manufacturer's product contains asbestos
components, which are integral to the function of the product,
and the manufacturer is aware that routine periodic maintenance
of its product will require the replacement of those components
with other asbestos-containing parts.
Plaintiff Arthur Whelan contends he developed mesothelioma
as the result of his work-related exposure to numerous asbestos-
containing products. Plaintiff asserts, as a plumber and auto
mechanic, he was exposed to asbestos in products manufactured by
6 A-3520-13T4
defendants,1 specifically boilers, valves, steam traps, and brake
drums. Although plaintiff installed and worked with some
original products manufactured by some defendants, he primarily
encountered asbestos in his cleaning, repair, and replacement of
components used in the products.
Defendants Armstrong International Inc., Burnham LLC,
Carrier Corp., Cleaver-Brooks Inc., Crown Boiler Co., Ford Motor
Co., Johnson Controls Inc., NIBCO Inc., and Oakfabco Inc. filed
summary judgment motions. Each defendant argued plaintiff had
not demonstrated exposure to friable asbestos on a regular and
frequent basis from a product it sold, manufactured, supplied,
or distributed. The trial judge found defendants were not
liable for asbestos-containing replacement parts they did not
manufacture or place into the stream of commerce. Because
plaintiff could not identify an exposure to asbestos from a
product actually manufactured or distributed by defendants, the
court granted summary judgment to each defendant.
In light of our determination that a manufacturer's product
includes any replacement parts necessary to its function,
defendants' duty to warn extends to any danger created by those
replacement parts. A careful review of the record reveals
1
When discussing a particular defendant, we refer to it by
name. Otherwise, we refer to all defendants involved in this
appeal collectively.
7 A-3520-13T4
plaintiff presented sufficient evidence detailing his exposure
to asbestos, either from original parts supplied by defendants
or replacement parts required for the function of defendants'
products, to create issues of fact as to all defendants. We,
therefore, reverse the October 3, November 15, and December 23,
2013 orders granting summary judgment in favor of defendants.
I.
We discern the following facts from the summary judgment
record. Plaintiff began work as a residential and commercial
plumber in 1952. He previously worked at an automotive repair
shop, and continued throughout his life to restore vintage cars
as a hobby. From 1955 to 1959, plaintiff worked for Franklin
Lowe & Sons. Plaintiff opened his own plumbing business, Arthur
Whelan Plumbing and Heating, in 1959, which he maintained until
1968. From 1968 until 1971, plaintiff worked at several other
plumbing companies before becoming employed by Powers Regulator,
where he worked for twenty-five years.
In 2008, plaintiff was diagnosed with asbestosis; he was
subsequently diagnosed with malignant mesothelioma in 2012.
Plaintiff's causation expert, pathologist Eugene J. Mark, M.D.,
stated in his August 2, 2013 report that plaintiff "developed a
diffuse malignant mesothelioma of the pleura" caused by asbestos
8 A-3520-13T4
exposure.2 Dr. Mark further concluded, "with reasonable medical
certainty" that "all of the special exposures to asbestos which
took place prior to the occurrence of the malignancy together
contributed to cause the diffuse malignant mesothelioma . . .
[and each] was a substantial contributing factor in the
causation of the diffuse malignant mesothelioma."
A.
Armstrong International Inc.
While employed by Franklin Lowe, plaintiff estimated he
worked on twenty Armstrong steam traps installed on commercial
boilers.3 The company's name was imprinted on the traps.
Plaintiff's job duties entailed opening the traps in order to
clean them and replace the asbestos gaskets.4 The process of
replacing a gasket took approximately twenty minutes to one hour
depending on its condition and how long it had been in place.
Plaintiff testified that "[d]ue to the high heat involved, these
2
The expert further stated in his report that asbestos is the
only established cause of diffuse malignant mesothelioma for
individuals who have not previously received radiotherapy at the
site of the tumor.
3
A steam trap is placed on the end of a boiler's steam line to
prevent the steam from going back into the boiler.
4
A gasket is a mechanical seal used in a high pressure steam
system that fills the space between two or more mating surfaces,
generally to prevent leakage from, or into, the joined objects
while under compression. Gasket, Wikipedia (June 26, 2018,
10:59 PM), https://en.wikipedia.org/wiki/Gasket.
9 A-3520-13T4
gaskets normally baked themselves onto the product, so they had
to be scraped and brushed off." Plaintiff could not confirm
whether he replaced gaskets original to the boiler or if the
original had been replaced prior to his work on the system. His
employer supplied the new gaskets but plaintiff did not know the
manufacturer of them. He advised, however, that the Armstrong
steam trap's design required the use of that specific type of
gasket to function properly. Plaintiff also testified that, in
his experience, asbestos gaskets were "the only product that
would work with the heat involved."
Armstrong confirmed it manufactured steam traps and some of
its traps contained a single internal gasket, which contained
"an unknown quantity of non-friable chrysotile asbestos." The
gasket was manufactured and supplied by an unrelated company.
Armstrong also conceded the asbestos gaskets built into the
steam traps "were necessary[, and] . . . standard in the
industry for these types of products," and were specified as the
proper replacement part for the steam traps.
Armstrong argued summary judgment was appropriate because
plaintiff was unable to identify either the manufacturer of the
replacement gaskets he installed or whether the gaskets he
replaced in the Armstrong steam traps were original to the trap.
Plaintiff opposed the motion, noting Armstrong's concession that
10 A-3520-13T4
the original component gaskets installed in its steam traps
contained asbestos until 1987, the recommended routine
maintenance required replacement of the gaskets every one to two
years with gaskets identical to the original specifications, and
asbestos gaskets were the industry standard and considered
necessary for proper function at the time.
B.
Burnham LLC
While self-employed from 1959 to 1968, plaintiff installed
twenty to thirty packaged, cast iron, oil-fired Burnham boilers.
Plaintiff stated, in general, the process of installing a
packaged boiler involved "moving the boiler around, taking it
out of the crate, [and] moving it into place, . . . [which]
created some dust from removing the insulation underneath the
jacket." He described a gray dust, which he inhaled, as
asbestos dust generated during the installation process. He
stated the dust emanated from the boiler's gray-colored
insulation that was visible through the "knock out hole where
the piping would be hooked up."
In moving for summary judgment, Burnham pointed out the
inconsistencies in plaintiff's deposition testimony. Contrary
to the above-cited testimony, plaintiff also conceded he could
not specifically recall whether any of the Burnham packaged
11 A-3520-13T4
units had asbestos insulation under the jacket. In an affidavit
submitted in support of its motion, Burnham's former Chief
Engineer and Chief Operating Officer, Donald Sweigart, certified
Burnham began phasing out the use of asbestos insulation in the
metal jacket of boilers "beginning in the late 1940s and early
1950s," completing the process "well before 1959"5 when plaintiff
installed the Burnham boilers.
In his de bene esse deposition, taken prior to the summary
judgment motions, plaintiff added that he cleaned approximately
twelve Burnham cast iron sectional boilers. The process of
cleaning a cast iron sectional boiler was "basically the same"
for all boilers.6 Each took approximately half an hour to two
hours to clean. Plaintiff explained he used a wire brush and
vacuum to clean the fireboxes7 and it was "normal for some of the
asbestos to come loose with the wire brush."
5
The information contained in this affidavit is contrary to
testimony provided by a different Burnham corporate
representative who stated, during a 2007 deposition, that
asbestos components were used in Burnham boilers until 1993.
6
During his deposition, plaintiff was asked specifically about
cleaning Bryant boilers. He later noted the cleaning process
for a cast iron sectional boiler was "basically the same"
regardless of the manufacturer.
7
Fireboxes were constructed of cement brick put together with
an asbestos-based refractory cement. Plaintiff testified it was
common for fireboxes to break down and decay due to the intense
(continued)
12 A-3520-13T4
Burnham filed a motion for summary judgment, arguing
summary judgment was appropriate because plaintiff did not know
the dates of manufacture of the boilers he installed nor their
maintenance history. Burnham also argued plaintiff conceded he
did not know whether the Burnham boilers he installed had
asbestos insulation under their jackets and emphasized Swigert's
affidavit that Burnham no longer used asbestos insulation in its
products by 1959. Plaintiff countered he had presented evidence
of exposure to asbestos in the cleaning and installation of the
Burnham boilers and established the existence of material issues
of fact.
C.
Carrier Corp.
Between 1959 and 1968, plaintiff recalled cleaning and
repairing less than ten Bryant8 boilers that were packaged units
with jackets. He described seeing dark gray asbestos insulation
through the holes in the jacket of the boilers and stated it was
"very possible" he disturbed the asbestos around the boiler
during a repair. He explained that to repair a leak in a
boiler's supply pipe, it was necessary to replace the asbestos-
(continued)
heat of the oil burner, requiring routine cleaning and
replacement of the cement bricks.
8
Carrier is the successor to Bryant Heating & Cooling Systems.
13 A-3520-13T4
insulated pipe, resulting in a disturbance of the asbestos. In
addition, any work on the boiler itself that required moving the
jacket would disturb the asbestos insulation under the jacket
because "[t]he jackets are not really substantially fastened to
the boiler . . . [s]o when you're moving [the boiler], you were
moving the whole jacket against the boiler . . . [and,] after
time, asbestos becomes brittle and flakes."
In his de bene esse deposition, plaintiff further recalled
installing one or two Bryant cast iron sectional boilers during
the same timeframe. Installation of a cast iron section boiler
required
removal of the existing heating plant, then
moving the new heating plant into position
which would include uncrating [the boiler
to] move into a basement or a boiler room
that same equipment and assembling it on the
spot where it's going. By assembling it,
you put a base together, install a firebox
in that base and set the sections on top of
that base and draw them together with draw
rods. If the boiler came with a jacket, the
jacket would be applied at that point. If
it did not come with a jacket, then the
asbestos coating would be applied at that
point.
Once that jacket or coating is
installed, then the piping to the house or
building . . . is connected to the . . .
boiler.
Plaintiff also described how he constructed and installed
the fireboxes for cast iron sectional boilers. Using bricks
14 A-3520-13T4
made with a refractory material able to withstand extreme
temperatures, the firebox was
built up like you would build something with
building blocks, put together with an
asbestos type cement to hold it in place.
Once that firebox is built up, you filled in
the outsides with a Vermiculite type of
insulation and capped it with an asbestos
product, either the cement you used to put
the bricks together or mix-up an asbestos
powder and capped the top off so the
Vermiculite did not fly out.
Plaintiff was able to identify the cement used to construct
the firebox as "asbestos type cement" because "asbestos [wa]s
the only product at the time that you could mix and use as a
bonding agent that would[]withstand [the] extreme heat of a
firebox." The cans he used were marked "asbestos cement."
Plaintiff also stated the asbestos cement generated dust that
dried on his hands, which he "wiped on [his] clothes or wiped
off on a rag." He also noted asbestos cement "normally came
with the boiler itself," because "[t]he manufacturer supplied
usually what was needed to put that boiler together."
Carrier's corporate representative, Howard E. Jameson,
conceded that Bryant boilers produced between 1938 and 1963
contained asbestos-based components such as jacket insulation
and rope gaskets. The brochures for some models of Bryant
boilers even described the jackets as asbestos-insulated.
15 A-3520-13T4
Carrier filed a motion for summary judgment, arguing
plaintiff's asbestos exposure from Bryant boilers was minimal.
Carrier asserted plaintiff testified he did not install or
remove Bryant boilers, cleaned fewer than ten of them, and could
not specifically identify any unit or the maintenance history of
any boiler he serviced.
Plaintiff responded he presented evidence of installing new
Bryant boilers on at least two occasions, disturbing the
asbestos insulation each time, and had cleaned or repaired
twelve to fifteen other Bryant boilers. Plaintiff asserted
Carrier manufactured and distributed asbestos brick, cement, and
rope gaskets, and admitted those products were used until the
1960s and 1970s.
D.
Cleaver-Brooks Inc.
During the 1950s, plaintiff cleaned Cleaver-Brooks "pork
chop" oil-fired boilers, although he could not recall a specific
number of times. He also stated he was present during the
installation of a Cleaver-Brooks boiler. These boilers were
approximately eight to ten feet high and eight to twelve feet
long, and each took one to two days to clean.
When working on these boilers, plaintiff used a wire brush
and vacuum to clean the soot inside of the boiler and,
16 A-3520-13T4
specifically, inside the boiler's firebox. The fireboxes were
constructed of firebricks put together with asbestos cement and
sometimes capped with a coat of asbestos. Plaintiff could not
identify the manufacturer of the asbestos-containing materials
in the boilers or the boilers' maintenance history or age.
During the same timeframe, plaintiff testified he also
cleaned and completed small repairs, such as cutting and
replacing leaky tubes on Cleaver-Brook steel fire tube boilers.
Plaintiff stated the cleaning process for a steel fire tube
boiler was the same as other boilers and he was "[d]efinitely"
exposed to asbestos when cleaning them. He conceded ignorance
of the maintenance history of the specific steel fire Cleaver-
Brooks boilers he worked on.
Cleaver-Brooks filed a motion for summary judgment, arguing
plaintiff failed to provide sufficient evidence that he was
exposed to any asbestos-containing product it manufactured or
distributed. Plaintiff could not identify specific models or
their maintenance history. He also did not identify the
manufacturer of the asbestos-containing materials in the
fireboxes.
Plaintiff presented deposition evidence from a Cleaver-
Brooks's corporate representative who affirmed in a different
legal action that some of its boilers contained asbestos and
17 A-3520-13T4
regular maintenance and cleaning was generally required.
Another representative testified he was unaware of any Cleaver-
Brooks boiler manufactured prior to the 1980s that was made with
non-asbestos cement.
E.
Crown Boiler Co.
During his January 2, 2013 deposition, plaintiff said he
did not personally work on any Crown Boilers and could not
attribute his asbestos exposure to that product. However, in
response to his counsel's questioning during the January 28,
2013 de bene esse deposition, plaintiff testified he cleaned
five or six Crown Boilers during his plumbing and heating
employment.
Crown Boiler argued it was entitled to summary judgment
because plaintiff had not established he was exposed to any
asbestos-containing materials that it manufactured, supplied,
sold, or distributed, and because he failed to produce evidence
that he was exposed to those materials on the frequency required
by Sholtis v. American Cyanamid Co., 238 N.J. Super. 8, 30-31
(App. Div. 1989).
Plaintiff argued, in opposition, that the evidence showed
he had cleaned the fireboxes of Crown Boilers five or six times
18 A-3520-13T4
with a wire brush and vacuum and it took him up to two hours to
clean each one.
F.
Ford Motor Co.
In 1952, plaintiff worked at Charlie's Auto Repair for six
or seven months where he was exposed to asbestos from brake
linings and mufflers. He estimated he performed three brake
jobs and two or three muffler jobs at this employment using
Bendix replacement brakes and Marmont mufflers. He did not know
if any of the brakes he worked on were original to the cars.
For six months in 1953, plaintiff worked at a "machine
shop" called Modern Motors. He spent five days a week operating
the brake lathe that cut brake drums, fitting new brake shoes to
the drums, and installing brake linings. He testified the
asbestos drums created dust when they were being set up, wiped
out, and cut. The majority of the drums "were original lined"
and plaintiff estimated approximately twenty-five percent of the
drums he worked on at Modern Motors were made by Ford.
Plaintiff submitted documents from Ford reflecting dozens
of its vehicles used asbestos for the rear brake drums and front
disc brake linings for several decades. In a 1985 letter to the
Environmental Protection Agency, Ford explained it purchased all
of the brake systems installed on its vehicles from outside
19 A-3520-13T4
manufacturers. Ford recommended the EPA "not seek to regulate
the use of asbestos in the brakes" of vehicles that currently or
previously had been manufactured with asbestos-containing brake
systems.
In addition to his professional automotive work, plaintiff
encountered Ford brakes as part of his hobby of restoring
antique cars. Among other vehicles, he owned a 1932 Ford
Roadster, a 1934 Ford pickup truck, a 1949 Ford sedan, a 1950
Mercury, and a 1953 Ford pickup truck. In 1957, plaintiff
performed a brake job on the 1953 Ford.9 In or about 1997,
plaintiff changed the drum brakes for all four wheels on the
1934 Ford. He recalled the brake shoes had been updated to
"1950 to '53 Ford F100 brakes on the front and a 1957 Ford rear
end in it" but he was unable to identify the manufacturer of the
existing brake linings. Plaintiff "sent the drums out to make
sure they were perfectly round" and when they returned, he put
the Ford brake shoes back on the car with new Bendix brake
linings.
In 2009, plaintiff performed a brake job on his 1949 Ford,
which had its original 1949 Ford brakes. He was exposed to
asbestos dust when he removed the rear brake drums. He also
9
Plaintiff purchased this car new.
20 A-3520-13T4
removed the Ford engine from the car and cleaned the old
asbestos gaskets.
Plaintiff replaced the brakes on a 1950 Mercury when he
purchased that car in the mid-1980s. He was unable to identify
the manufacturer of the old brakes because they were so worn
down. He replaced them with Bendix brand brakes. Plaintiff
also replaced the exhaust and intake gaskets on three of the
Ford cars approximately seven times. He did not know the
manufacturer of the original gaskets he removed.
In its motion for summary judgment, Ford did not dispute
plaintiff was exposed to some of its asbestos-containing
products while working as an automotive professional. Ford
argued, instead, that plaintiff's exposure to asbestos from
changing the brakes on his personal vehicles was minimal.
In response, plaintiff argued the evidence showed that as a
professional mechanic, he worked on hundreds of "Ford, original
brake drums," which took five to ten minutes per drum, and fifty
to sixty percent of those drums had never been cut or worked on
before. He further contended the evidence showed Ford
manufactured its own brakes for use with its cars and standard
procedure required the drums be ground flat to accept a new
brake shoe. While performing repairs on his personal Ford
vehicles and for six or seven months while employed at another
21 A-3520-13T4
auto repair shop, plaintiff noted the brake systems required the
use of asbestos and were designed to be replaced with asbestos
linings.
G.
Johnson Controls Inc.
During his employment with Powers, plaintiff testified he
repaired approximately one dozen Johnson Controls steam and hot
water valves at the University of Medicine and Dentistry in New
Jersey (UMDNJ). A repair entailed changing the stem packings,
which involved "taking the stem packing nut out, digging the
packings out, and replacing them." The work took from one to
four hours to complete. Plaintiff knew the stem packing on the
valves was asbestos. He did not know the service history of any
of the valves or the components.
Johnson Controls' corporate representative, Robert
Franecki, testified in his deposition that Johnson Controls sold
replacement asbestos packing for its valves. He also
acknowledged it was feasible for the company to place a warning
tag on the valve itself or in a manual.
In its application for summary judgment, Johnson Controls
argued plaintiff did not know who manufactured or supplied
either the existing packing that he removed or the new packing
he used as replacement in his work replacing stem packing and
22 A-3520-13T4
valves at UMDNJ. Plaintiff conceded he was unable to identify
the manufacturer of the packing, but argued Johnson Controls
supplied its valves with asbestos components and knew they would
be replaced with like components. According to Franecki, the
company also knew the replacement process would expose people to
dangerous asbestos dust and it could have warned them of the
danger but did not.
H.
NIBCO Inc.
Plaintiff installed new NIBCO brand valves in one of his
homes and as part of his work at Franklin Lowe. He admitted it
was unlikely he was exposed to asbestos during the installation
of new valves, but would have been exposed to asbestos while
replacing the packing.
The exposure to asbestos occurred when cutting up the new
packing and from "digging the old packings out, cleaning up
where it was." If a valve was leaking, the first repair would
be to "tighten down on the packing nut . . . to see if there's
anything left in there" and then repair it if that did not work.
NIBCO valves failed infrequently, however, and "it was much
easier and cheaper . . . to put the packing in rather than put a
new valve in." The valves' design required the replacement
packing be the same type as the original. Plaintiff did not
23 A-3520-13T4
know the repair history of any of the valves he worked on or
whether the packing he pulled out came from a manufacturer other
than NIBCO.
In moving for summary judgment, NIBCO argued there was no
evidence plaintiff was exposed to asbestos from NIBCO valves as
plaintiff admitted he was not exposed during installation and
the valves failed infrequently. Plaintiff countered that the
evidence showed he was exposed to friable asbestos when he
removed original packing.
I.
Oakfabco Inc.10
Plaintiff first encountered oil-fired Kewanee boilers in
the 1950s and he worked on or around them "[r]ight up to the day
[he] retired." The commercial boiler was six to nine feet high
and ten to twelve feet long. Plaintiff cleaned them
approximately one to two dozen times, but he never installed,
repaired or removed one. Cleaning required plaintiff to "go
into the firebox area, and wire brush whatever was accessible
from that point, open the front and back doors, brush that all
down, vacuum it out and inspect the tubes."
Plaintiff asserted he was exposed to asbestos from
"[d]isturbing the asbestos around the boiler, [and] replacing
10
Oakfabco is the successor to Kewanee Boiler Corp.
24 A-3520-13T4
any gaskets that would be on the doors." He also stated it was
"possible" the material being vacuumed contained asbestos,
because the cleaning disturbed the refractory cement inside the
firebox and vacuuming blew the dust back into the room.
Plaintiff did not know who manufactured or supplied the
asbestos around the boiler and in the fireboxes, or the old
gaskets that he replaced, nor did he know the maintenance
history of any of the boilers.
Oakfabco argued it was entitled to summary judgment because
plaintiff was unable to show he was exposed to any asbestos as a
result of cleaning a Kewanee boiler or to any asbestos sold with
the boiler. It was undisputed plaintiff had never installed or
removed a Kewanee boiler. And, although he cleaned them, he was
unable to provide any specific information as to the location,
model, year, or maintenance history of any of the Kewanee
boilers.
In opposition to the motion, plaintiff reiterated he had
testified to cleaning the fireboxes and removing and replacing
gaskets on one to two dozen Kewanee dry back boilers – a very
specific type of boiler. That process required brushing and
scraping the inside of the asbestos-containing firebox, which
took up to two hours for each boiler.
25 A-3520-13T4
During oral argument before the trial court, plaintiff
stated he was "not necessarily arguing" he was "exposed to
asbestos that Kewanee actually manufactured," but rather
contended Kewanee manufactured and distributed asbestos-
containing boilers, specified how to clean the asbestos-
containing fireboxes of its boilers, mandated replacement of its
asbestos-containing gaskets, and failed to warn plaintiff about
it. Because the cement manufacturer could not place a warning
on its cement inside the boilers, plaintiff contended it was
Kewanee's responsibility to provide the warning on the boiler
itself.
II.
On appeal,11 plaintiff argues defendants were strictly
liable for their failure to warn users of the asbestos-related
hazards of their products, inclusive of any component parts,
including those hazards associated with routine maintenance and
replacement, regardless of whether defendants manufactured or
supplied the asbestos-containing hazardous components or
replacement parts.
Defendants assert settled principles of product liability
law in New Jersey require a plaintiff to demonstrate he or she
11
Although the complaint presented multiple causes of action
against defendants, the parties and trial court only addressed
plaintiff's allegations of strict liability.
26 A-3520-13T4
was exposed to asbestos and suffered injury from a defect in a
defendant's own product. Defendants contend the focus is on the
alleged injury-producing asbestos product itself, alleviating a
manufacturer from liability for an asbestos-containing component
or replacement part it did not manufacture or supply.
To prevail on a strict liability claim, plaintiff must
present 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, Inc., 144 N.J. 34, 49 (1996) (quoting
Feldman v. Lederle Labs., 97 N.J. 429, 449 (1984)). A failure
to warn product liability action is premised on the theory that
the product is defective because, absent a warning, the product
was not reasonably fit, suitable or safe for its intended
purpose. Coffman v. Keene Corp., 133 N.J. 581, 593-94 (1993).
The defect in the product is the absence of a warning that the
product has the potential to cause injury. Ibid.
A plaintiff must satisfy two elements to establish a
product liability claim arising from allegations that he or she
was harmed by a product that was defective because it failed to
warn of asbestos-related hazards associated with its use. Id.
at 594. First, the plaintiff must prove "product-defect
causation" by demonstrating the defect existed when it left the
27 A-3520-13T4
defendant's control and the defect was a proximate cause of the
plaintiff's injury. Ibid.
Second, in all cases involving occupational exposure to
toxic materials, including asbestos failure to warn cases, the
plaintiff must also prove "medical causation" by demonstrating
"his or her injuries were proximately caused by exposure to
defendant's asbestos product." Ibid. A plaintiff must
demonstrate his or her exposure to a defendant's product "was a
substantial factor in causing or exacerbating the disease."
James v. Bessemer Processing Co., 155 N.J. 279, 299 (1998)
(quoting Sholtis, 238 N.J. Super. at 30-31).
Against that backdrop, we consider whether defendants are
liable for a failure to warn of asbestos-containing components
or replacement parts necessary to the function of their product,
but not manufactured by them. In our consideration, we are
guided by prior case law and established principles in our
jurisprudence.
In Molino v. B.F. Goodrich Co., 261 N.J. Super. 85 (App.
Div. 1992), we determined a manufacturer could be held strictly
liable for injuries caused by a component part it did not
manufacture if the two products were designed to be used as a
unit. There, plaintiff was attempting to change a flat tire on
a dump truck. Id. at 90-91. As he did so, the spare tire,
28 A-3520-13T4
already inflated and mounted on a rim assembly, exploded as
plaintiff was installing the unit to the truck. Id. at 91.
Plaintiff brought suit against the tire manufacturer,12 Uniroyal
Goodrich Tire Company,13 and others. Id. at 89.
At trial, plaintiff's expert conceded the tire itself was
not defective. Id. at 90-91. The expert further testified the
tire was made to be used with the multi-piece rim assembly and
the industry was aware the assemblies were problematic. Id. at
93. He stated, "[i]t takes the whole assembly," including the
tire, "for this to happen." Ibid. The expert opined that air
should have been put into the tire only after the assembly was
locked into place on the truck. Id. at 91. As a result, the
tire should have contained warnings, including a warning to
secure the tire to the truck before inflation. Ibid.
This court reversed the trial judge's rulings barring the
expert's evidence and granting a directed verdict for Uniroyal.
Id. at 94. We determined the judge should have allowed the
expert's testimony. Ibid. Because the tire and rim assembly
were designed to be used together, we stated: if the jury was
convinced the tire manufacturer "should have foreseen or
12
Prior to trial, a settlement was reached with the other
defendants, including the manufacturer of the rim.
13
Uniroyal Goodrich was improperly pled as B.F. Goodrich.
29 A-3520-13T4
actually knew of the dangers involved with the rim assemblies
used with its product, [it should] consider [the manufacturer's]
duty to provide an adequate warning . . . reasonably foreseeable
to users." Ibid.
Molino, therefore, provides precedent for a manufacturer to
be held strictly liable for injuries caused by a component part
it did not manufacture if the two products were designed to be
used as a unit. In a case decided the same year as Molino, we
established a manufacturer might still have a duty to warn of
the dangers in its machine as originally manufactured, even if
major components of the machine have been replaced prior to a
plaintiff sustaining harm.
In Seeley v. Cincinnati Shaper Co., plaintiff was injured
while working on a press brake originally designed,
manufactured, and sold by defendant. 256 N.J. Super. 1, 4 (App.
Div. 1992). The machine had been substantially altered prior to
its sale to plaintiff's employer. Id. at 5. Defendant argued
it had no duty to warn of the dangers inherent in the machine as
originally manufactured, because major components of the machine
had been replaced. Id. at 18. We rejected that argument,
noting the replacement parts either "were irrelevant" to the
circumstances of the accident "or could reasonably have been
contemplated by defendant." Ibid. With the changes, we
30 A-3520-13T4
reasoned the manufacturer's "portion of the remaining machine
could be thought of as a component part of the machine as it
existed at the time of the accident" and "the manufacturer of
even a component part may be liable for a . . . warning defect."
Ibid.
Here, it is undisputed defendants' products as originally
marketed had asbestos–containing component parts. Defendants
have not argued they were unaware these component parts would be
replaced regularly as part of routine maintenance on their
products. Instead, they assert the duty to warn does not extend
to replacement parts they did not manufacture or distribute.
Shortly after the entry of the summary judgment orders in
this case, we considered defendants' responsibility for the duty
to warn of danger in replacement parts in Hughes v. A.W.
Chesterton Co., 435 N.J. Super. 326 (App. Div. 2014). There, we
held a manufacturer has a duty to warn of the dangers from
asbestos in replacement parts when its product required the use
of asbestos component parts. Id. at 338-47.
In Hughes, the plaintiffs sought to hold liable the
manufacturers of a pump with asbestos-containing component parts
-- gaskets and packing -- for their exposure to the asbestos in
those component parts that had been replaced years after the
31 A-3520-13T4
pumps left the defendants' control. Id. at 332-33. Relying on
Molino and Seeley, the panel found the
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 part of routine maintenance did
not absolve [defendant] of any duty to warn
because it was reasonably foreseeable that
these components would be replaced as part
of regular maintenance.
[Id. at 341.]
Like the manufacturers' products here, the defendant in
Hughes acknowledged its pump would require replacement gaskets
and packing during routine maintenance. See ibid. As a result,
the Hughes court concluded
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. [Defendant] 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.
[Ibid.]
The Hughes court, therefore, extended the duty to warn not
only to workers who were exposed to the products as originally
manufactured, but also to "those workers who came into contact
with the component parts as part of regular maintenance." Id.
32 A-3520-13T4
at 342. As a result, the panel determined the product-defect
causation element was met. Ibid.
However, the Hughes court reached a different conclusion
on the medical causation element, declining to extend liability
to a manufacturer if the plaintiff's injuries were caused solely
by replacement parts, because he or she had never been exposed
to the original asbestos-containing components supplied by the
manufacturer. See id. at 343-46. The panel found plaintiffs
could not prove causation without showing exposure to an injury-
producing element in the product that was manufactured or sold
by the defendants. Id. at 346. That product, according to the
court, was only the manufacturer's pump, and did not include its
component parts. Id. at 345-46.
It is there that we part ways and disagree with our
colleagues in Hughes, as we discern the limited definition of
"product" employed by that panel is inconsistent with deep-
rooted principles of product liability under New Jersey law.
It is well-established in this state's products liability
jurisprudence that a manufacturer may be held liable for a
failure to warn of the dangers of its product, even if the
product has undergone substantial alteration, as long as the
alteration did not affect the defect at issue. "[I]f the defect
which, singly or in combination, caused the injury existed
33 A-3520-13T4
before, as well as after, the change, the manufacturer is not
relieved of liability, regardless of how much the product has
been changed." Michalko v. Cooke Color & Chem. Corp., 91 N.J.
386, 400 (1982); accord Becker v. Baron Bros., 138 N.J. 145, 151
(1994); O'Brien v. Muskin Corp., 94 N.J. 169, 179-80 (1983);
Koruba v. Am. Honda Motor Co. Inc., 396 N.J. Super. 517, 524-25
(App. Div. 2007); Levey v. Yamaha Motor Corp., U.S.A., 361 N.J.
Super. 312, 318 (App. Div. 2003).
Pursuant to Michalko and its progeny, our courts assess a
manufacturer's liability for a defective product by the
condition of the product when it left the manufacturer's
control. A product that contained asbestos when it was supplied
by the manufacturer, with no warning as to the dangers posed by
the asbestos-containing component, and that contained asbestos
when encountered by a worker years later, remains in
substantially the same defective condition, whether or not its
original asbestos has been replaced with other asbestos.
The "product," against which a worker's exposure to
asbestos is measured, is not the asbestos contained in the
pump's component parts, as stated in Hughes. The "product" is
the complete manufactured item as delivered by the manufacturer
to the consumer, not just the asbestos contained in one of the
product's components. In Hughes, the whole pump supplied by the
34 A-3520-13T4
defendants was defective, because it did not carry a warning
about the dangers of asbestos in its components. Here, it is
the boiler, valve, steam trap, brake systems, and the component
parts integral to their function that is the product.
To define the "product" as the manufacturer's complete
product as marketed and distributed to the end user is
consistent with our holding in Seeley as well as our Supreme
Court's holdings extending liability to a manufacturer for
foreseeable alterations to its product. See Jurado v. W. Gear
Works, 131 N.J. 375, 386 (1993) (reasoning "[t]he concept of
foreseeable misuse extends to cases in which a product has been
substantially altered from its original design"); Brown v. U.S.
Stove Co., 98 N.J. 155, 169 (1984) (holding a defect-free
product "extends to one that is suitably safe after it has been
. . . foreseeably altered"); Lewis v. Am. Cyanamid Co., 294 N.J.
Super. 53, 68 (App. Div. 1996) (reasoning the Court "has held
that a product is defectively designed if it is not designed to
be as safe as reasonably feasible under conditions of
foreseeable misuse"), aff'd in part, modified in part, 155 N.J.
544, 559 (1998); see also Restatement (Second) of Torts § 402A
(Am. Law Inst. 1965) ("[o]ne who sells any product in a
defective condition unreasonably dangerous to the user or
consumer . . . is subject to liability for physical harm . . .
35 A-3520-13T4
caused to the ultimate user or consumer . . . if . . . it is
expected to and does reach the user or consumer without
substantial change in the condition in which it is sold").14
Here, it was foreseeable, at the time defendants placed
their products into the marketplace, that asbestos-containing
component parts of the product would be replaced with similar
asbestos-containing parts. Replacing an original part with a
substantially similar part is a foreseeable alteration.
Therefore, the replacement of the asbestos did not substantially
alter either the injury-producing element or the defect.
Employing this definition of "product" is a reasonable
conclusion, following the concepts established in Michalko and
the myriad of cases following it, and continuing in the vein of
Molino and Seeley. Therefore, we conclude that a manufacturer
will have a duty to warn in strict liability if a plaintiff can
show: 1) the manufacturer's product as marketed to the end user
contained asbestos-containing components; 2) the asbestos-
containing components were integral to the function of the
product; and 3) the manufacturer was reasonably aware its
product would require periodic and routine maintenance involving
14
See also Restatement (Second) of Torts § 402A cmt. g (Am. Law
Inst. 1965) ("The burden of proof that the product was in a
defective condition at the time that it left the hands of the
particular seller is upon the injured plaintiff." (Emphasis
added)).
36 A-3520-13T4
the replacement of the asbestos-containing component parts with
other asbestos-containing component parts. Under these limited
circumstances, the manufacturer's liability for a failure to
warn extends to the danger created by the component and
replacement parts.
We are satisfied the imposition of such a duty does not
offend basic principles of fairness and public policy that must
be accorded to all parties. Olivo v. Owens-Illinois, Inc., 186
N.J. 394, 401-03 (2006) (holding "considerations of fairness and
policy govern whether the imposition of a duty is warranted").
As stated in Hughes, "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." 435 N.J. Super. at 343. We assume
today, as we did then, that the cost of including a pump on each
of defendants' products would have "little, if any, effect on
[the] product's utility." Ibid. (quoting Campos v. Firestone
Tire & Rubber Co., 98 N.J. 198, 207 (1984)).
How a manufacturer's product is defined appears to be
determinant in other states' consideration of this issue as
well. Is a "product" only the item fabricated by the
manufacturer or does a "product" include asbestos-containing
37 A-3520-13T4
component and replacement parts necessary to maintain its
functionality?
In considering appellate authority from other
jurisdictions, there is no clear majority rule as to a
manufacturer's duty to warn for exposure to asbestos-containing
replacement component parts required for the function of its
product. The recent trend, however, appears skewed towards the
imposition of liability on manufacturers even where the worker's
exposure was to replacement parts, where the original product
was manufactured with asbestos-containing parts. See, cf., May
v. Air & Liquid Sys. Corp., 129 A.3d 984, 995 (Md. 2015)
(defining asbestos-containing component parts as the "product"
and imposing a duty to warn when the manufacturer's product "not
only has asbestos components, but also cannot function properly
without these hazardous components, and a [worker] will be
exposed to the asbestos during necessary, periodic replacement
of the parts with other asbestos-containing parts"); Poage v.
Crane Co., 523 S.W.3d 496, 511, 514-15 (Mo. Ct. App.), transfer
denied, 2017 Mo. LEXIS 375 (Mo. Aug. 22, 2017), cert. denied sub
nom, Crane Co. v. Poage, ___ U.S. ___ (2018) (slip op. at 2)
(holding a manufacturer could be held liable under a duty to
warn theory where it provided valves that used asbestos-
containing gaskets and packing, and also specified and
38 A-3520-13T4
identified asbestos-containing replacement parts as proper for
replacing the original valves); In re N.Y.C. Asbestos Litig., 59
N.E.3d 458, 463-78 (N.Y. 2016) (extending duty to warn of the
dangers of asbestos-containing parts manufactured by a third
party when the manufacturer's product required those parts as a
matter of design, mechanics, or economic necessity even if the
manufacturer had not originally provided those components when
it supplied its product to the end user); McKenzie v. A.W.
Chesterson Co., 373 P.3d 150, 155-56 (Or. Ct. App. 2016)
(defining "product" as the pump sold by the manufacturer to the
end user including the asbestos-containing gaskets and packing);
Macias v. Saberhagen Holdings, Inc., 282 P.3d 1069, 1076-77
(Wash. 2012) (assigning liability to manufacturers whose
products, when "used exactly as intended and cleaned for reuse
exactly as intended[,] inherently and invariably posed the
danger of exposure to asbestos"); see also Chesher v. 3M Co.,
234 F. Supp. 3d 693 (D.S.C. 2017) (recognizing the majority of
states have rejected the bare metal defense).
Other states have adhered to the "bare metal" defense,
first used as a bright-line rule in federal maritime cases
considering the scope of a defendant's liability for dangers of
asbestos-containing products on ships. See Devries v. GE, 188
F. Supp. 3d 454, 462 (E.D. Pa. 2016). That defense declines to
39 A-3520-13T4
recognize, under any theory of liability, a manufacturer's
liability for harm caused by any actual asbestos products that
it did not manufacture or supply. Lindstrom v. A-C Prod. Liab.
Tr., 424 F.3d 488, 492-96 (6th Cir. 2005).
In O'Neil v. Crane Co., 266 P.3d 987 (Cal. 2012), the
plaintiff worked on valves and pumps that used gaskets and
packing containing asbestos. Id. at 992. He did not work with
the products until more than twenty years after the defendants
supplied their equipment to the Navy. Id. at 993. Therefore,
the original asbestos-containing components supplied with the
products had long been replaced. Ibid. Because California law
limited a duty to warn "to risks arising from the manufacturer's
own product," the California Supreme Court found no duty to warn
of hazards from the exposure to asbestos that occurred during
maintenance work on the defendants' pumps and valves. Id. at
997.
In noting the lack of evidence that the valves or pumps
required asbestos-containing components to operate, the
California Supreme Court acknowledged the analysis for failure
to warn might be different for a product that required the use
of a defective component for its proper function. Id. at 996
n.6. The court noted, under those circumstances, the finished
product would necessarily incorporate a defect, and the
40 A-3520-13T4
replacement of the original defective part with another equally
defective part supplied by another manufacturer "would not break
the chain of causation." Ibid. In addition, "if the product
manufacturer specified or required the use of a defective
replacement part, a stronger case could be made that the
manufacturer's failure to warn was a proximate cause of
resulting injury." Ibid.15
In companion cases decided on the same day, the Washington
Supreme Court also considered the issue of a manufacturer's
liability for harm caused by asbestos in the context of both
asbestos-containing parts made and supplied by a third party for
use with the defendants' products, Simonetta v. Viad Corp., 197
P.3d 127, 129-38 (Wash. 2008), and replacement parts for
original asbestos-containing parts supplied by the manufacturer.
Braaten v. Saberhagen Holdings, 198 P.3d 493, 495-504 (Wash.
2008).
15
Subsequent courts considering this issue have commented that
O'Neil did not foreclose on the possibility of liability for
component parts a manufacture did not fabricate or distribute.
See, e.g., Willis v. Buffalo Pumps, Inc., 34 F. Supp. 3d 1117,
1123 (S.D. Cal. 2014) (noting O'Neil limited a defendant's
liability for third party components but did not eliminate the
possibility of such liability); Schwartz v. Abex Corp., 106 F.
Supp. 3d 626, 644 n.58 (E.D. Pa. 2015) (observing O'Neil
"contains indications of potential exceptions" to the bare metal
defense).
41 A-3520-13T4
In Simonetta, the defendant manufactured an evaporator, a
distilling plant that converted seawater to freshwater. 197
P.3d at 129. After the manufacturer delivered the evaporator,
the Navy or another entity insulated it with asbestos mud and
cloth products made and provided by a third party. Id. at 129-
30. The evidence revealed the evaporator required asbestos
insulation to function properly, the insulation contained
asbestos, and the defendant knew, or should have known, the
insulation would be disturbed during normal maintenance. Id. at
131.
In analyzing the nature of the "product," the Washington
court determined the "completed product was the evaporator," as
delivered by defendant, without any asbestos insulation. Id. at
138. As strict liability attaches only when a manufacturer has
sold an unreasonably dangerous product, and the unreasonably
dangerous product here was the asbestos insulation, not the
evaporator, the court declined to impose a duty. Ibid. "[I]t
was not the evaporator, but the dangers inherent in the asbestos
insulation, a product [defendant] did not manufacture or supply,
that was the proximate cause of [plaintiff's] alleged injury."
Id. at 136.
In Braaten, the defendants manufactured valves and pumps.
198 P.3d at 495. Some of their products contained asbestos
42 A-3520-13T4
gaskets and packing, which were manufactured by other companies
but installed by the defendants into the pumps and valves prior
to sale. Ibid. The manufacturers did not dispute liability for
the failure to warn of the dangers from asbestos in the parts
they originally supplied with the product. Id. at 501. Rather,
they asserted strict liability principles did not support the
imposition of liability for replacement parts they had not
manufactured or distributed. Id. at 501-02.
The Washington Supreme Court relied on its holding in
Simonetta, concluding there was no duty to warn for replacement
gaskets and packing. Id. at 501. However, the court advised:
we need not and do not reach the issue of
whether a duty to warn might arise with
respect to the danger of exposure to
asbestos-containing products specified by
the manufacturer to be applied to, in, or
connected to their products, or required
because of a peculiar, unusual, or unique
design.
[Id. at 504.]
Subsequently in Macias, the Washington court stated: "While the
chain-of-distribution requirement is undoubtedly the general
rule . . . it is not absolute." 282 P.3d at 1080; see also
Morgan v. Bill Vann Co., 969 F. Supp. 2d 1358, 1364-67 (S.D.
Ala. 2013) (applying bare-metal defense/predicting Alabama would
adopt it); Faddish v. Buffalo Pumps, 881 F. Supp. 2d 1361, 1368-
72 (S.D. Fla. 2012) (applying bare-metal defense, finding it
43 A-3520-13T4
consistent with Florida law); Thurmon v. A.W. Chesterton, Inc.,
61 F. Supp. 3d 1280, 1284-86 (N.D. Ga. 2014) (applying bare-
metal defense/predicting Georgia would adopt it), aff'd sub nom,
Thurman v. Ga. Pac., 650 Fed. Appx. 752 (11th Cir. 2016);
Cabasug v. Crane Co., 989 F. Supp. 2d 1027, 1043 (D. Haw. 2013)
(holding, "under maritime law, a manufacturer is not liable for
harm caused by, and owes no duty to warn of the hazards inherent
in, asbestos-containing replacement parts that the manufacturer
did not manufacture or distribute"); Woo v. Gen. Elec. Co., 393
P.3d 869, 876 (Wash. Ct. App. 2017) (denying summary judgment to
manufacturer and affirming Washington's exceptions to the bare
metal defense).
While noting the doctrinal trends of other appellate
courts, we reach the result enunciated today after weighing
policy considerations, guided by the principles that are the
bedrock of our jurisprudence, and as a natural progression from
the decisions that have come before.
A defect that existed when the product left the
manufacturer's control is neither ameliorated nor diminished
when it arises from a component that has been replaced with a
component that contains the identical injury–producing element.
That well-established principle governs our definition of a
44 A-3520-13T4
product for purposes of determining a manufacturer's liability
for an asbestos-containing replacement part.
We are confident this limited "common sense" approach to
refining a manufacturer's duty in the context of asbestos
exposure cases alleviates the concerns expressed by the Hughes
panel. In declining to extend liability to the original
manufacturer for a replacement part it did not manufacture, the
court explained:
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 [for replacement component
parts] . . . would [also] fail to limit
liability "only to those defendants to whose
products the plaintiff can demonstrate he or
she was intensely exposed."
[Hughes, 435 N.J. Super. at 346 (quoting
James, 155 N.J. at 302-03).]
Defendants echoed these arguments in their summary judgment
motions and before this court, asserting plaintiff could not
satisfy the "frequency, regularity and proximity" test
enunciated in Sholtis and adopted by the Supreme Court in James.
In James, the Court determined in cases where the plaintiff
alleged exposure to asbestos from multiple defendants, he or she
could establish a prima facie case of medical causation by
showing "an exposure of sufficient frequency, with a regularity
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of contact, and with the product in close proximity." 155 N.J.
at 301 (quoting Sholtis, 238 N.J. Super. at 28).
We are satisfied our ruling today remains consistent with
the proofs required under Sholtis and James. A plaintiff in an
asbestos failure to warn case must continue to establish medical
causation through exposure to the defendant's complete, as
marketed product.
In opposing summary judgment, a plaintiff must still
produce evidence from which a fact-finder, after assessing the
proof of frequency and intensity of plaintiff's contacts with a
particular manufacturer's asbestos-containing product, including
all necessary component or replacement parts, could reasonably
infer toxic exposure. Sholtis, 238 N.J. Super. at 29.
Plaintiff must also show his or her exposure was more than
casual or minimal. Goss v. Am. Cyanamid, Co., 278 N.J. Super.
227, 236 (App. Div. 1994). If the product did not contain
original asbestos component parts and did not require
replacement asbestos parts, or plaintiff cannot demonstrate he
or she used asbestos-containing replacement parts, the
manufacturer is absolved of its responsibility to warn.
III.
We review orders granting summary judgment de novo,
applying the same standard as the trial court. Templo Fuente De
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Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J.
189, 199 (2016). Viewing the evidence in the light most
favorable to the non-moving party, we must decide whether the
moving party was entitled to judgment as a matter of law.
W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012). Summary judgment
should not be granted where there are disputed issues of facts
material to the legal conclusion. Taylor v. Metzger, 152 N.J.
490, 514 (1998). In reviewing a summary judgment decision, the
factual findings of the trial court are accorded substantial
deference on appeal, but no special deference is owed to the
trial court's interpretation of the law and the legal
consequences that emanate from established facts. Manahawkin
Convalescent v. O'Neill, 217 N.J. 99, 115 (2014).
We turn, then, to the evidence in the record. As noted,
the product-defect causation element has been met. The
defendants may be held liable for the failure to warn of the
dangers associated with the asbestos contained in their product
– inclusive of component parts it did not manufacture or supply.
That liability extends to the failure to warn of the dangers
from cleaning, repairing, and replacing the asbestos-containing
components as none of those activities substantially changed the
product or mitigated the danger. The fact that plaintiff was
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exposed to a replacement part, rather than an original part,
will not eliminate a defendant's liability.
We have also determined, viewing the evidence in the light
most favorable to plaintiff, that he presented sufficient
evidence detailing his exposure to asbestos, either from
original parts supplied by defendants or replacement parts
required for the function of defendants' products to create
issues of fact as to each defendant.
With regard to the boiler defendants — Burnham and Carrier
— plaintiff identified asbestos insulation under the boiler
jacket. Installing and working on the units created asbestos
dust. Plaintiff also built and cleaned fireboxes requiring the
use of asbestos cement.
The room-size boilers of Cleaver-Brooks and Oakfabco took
two days to clean. The cleaning included work done on fireboxes
constructed of bricks held together and capped with asbestos
cement. None of the contact described by plaintiff with these
boilers was casual or minimal. It is undisputed the products,
as marketed, contained asbestos components and required
periodic, routine replacement. Plaintiff noted asbestos cement
was the only product available during the relevant years that
could withstand the "extreme heat" of a firebox. He also noted
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the asbestos cement was supplied with the boiler as it was
needed for the installation and operation of the product.
When queried about his contact with Crown Boiler products
during his January 2, 2013 deposition, plaintiff said he did not
personally work on any Crown boilers and could not attribute his
asbestos exposure to that product. However, several weeks
later, at his de bene esse deposition, plaintiff recalled
cleaning five or six Crown boilers. This inconsistency in
testimony is a factual dispute to be resolved by a jury.
Plaintiff's description of cleaning all of the involved boilers
is sufficient to allow an inference of exposure to these
products on a frequent and regular basis.
Plaintiff also presented sufficient evidence to raise a
jury question as to whether he met the "frequency, regularity,
and proximity" test regarding the valve manufacturers – Johnson
Controls and NIBCO. He testified he repaired at least a dozen
Johnson steam and hot water valves, which entailed digging out
and replacing the asbestos packing. Plaintiff described the
same type of work regarding his exposure with NIBCO valves.
Those valves required asbestos packing for sealing; the valves'
design required the replacement packing be the same as the
original. Plaintiff's testimony is, therefore, sufficient to
49 A-3520-13T4
raise the inference he worked frequently and regularly in close
proximity to asbestos in Johnson Controls and NIBCO valves.
Plaintiff also estimated he cleaned twenty Armstrong steam
traps. The traps were designed to use a specific type of
asbestos gasket to function properly. The scraping out of the
asbestos gasket took one to four hours. Plaintiff presented
sufficient evidence to withstand the grant of summary judgment.
It is undisputed plaintiff was exposed to asbestos during
his work with Ford cars and their brake systems. The systems
required the use of asbestos and were designed to be replaced
with asbestos linings. The majority of the brake drums
plaintiff worked on at Modern Motors were "original lined." He
stated twenty-five percent of those drums were made by Ford.
The trial court erred in concluding plaintiff had not
established Ford as the manufacturer of the lining on the
vehicles on which he worked at Modern Motors. Plaintiff
demonstrated an exposure to Ford asbestos products sufficient to
raise a factual issue for the jury under the Sholtis test.
We, therefore, reverse the orders of summary judgment as to
each named defendant and remand to the trial court for trial.
Reversed and remanded for further proceedings consistent
with this opinion. We do not retain jurisdiction.
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