JEROME B. SIMANDLE, Chief District Judge.
This matter comes before the Court on Defendants Buffalo Pumps, Inc.'s; DAP, Inc.'s; Sid Harvey Industries, Inc.'s; and Warren Pumps' respective motions for summary judgment. [Docket Entries 107; 98; 99; 95.] On August 14, 2014, Plaintiff filed a complaint in New Jersey Superior Court against 31 named defendants, alleging that he was exposed to defendants' asbestos products at various worksites where Plaintiff worked as machinist, pipe fitter, and electrician during the 1950s, 1960s, and 1970s. The case was subsequently removed to this Court. [Docket Entries 1, 58-59.]
Defendant Buffalo Pumps, Inc. ("Buffalo"), argues that Plaintiff has failed to offer any evidence that would tend to show that Plaintiff was exposed to asbestos as a result of any work with or around Buffalo equipment; Buffalo avers that there is no genuine issue of material fact as to whether Buffalo is responsible for Plaintiff's asbestos exposure and therefore for his subsequent injuries and that it is therefore entitled to summary judgment. [Docket Entry 107 at 1.] Plaintiff has not filed a response to Buffalo's motion. For the reasons discussed below, the Court finds that Plaintiff has failed to offer evidence showing that there is a genuine issue of material fact as to whether exposure to any Buffalo equipment caused his alleged asbestosis, and Buffalo's motion for summary judgment will be granted.
Defendant DAP, Inc. ("DAP") argues that Plaintiff has not produced sufficient evidence to establish that he was exposed to asbestos as a result of working with a product manufactured by DAP. For the reasons discussed below, the Court finds that there is a genuine issue of material fact as to this Defendant, and DAP's motion for summary judgment will be denied.
Defendant Sid Harvey Industries, Inc. ("Sid Harvey") argues that Plaintiff has failed to proffer evidence sufficient to establish a genuine issue of material fact that he was exposed to asbestos due to any product or equipment manufactured, distributed, or sold by Sid Harvey. For the reasons discussed below, the Court finds that Plaintiff has failed to offer evidence showing that there is a genuine issue of material fact as to whether any product made, supplied or distributed by this Defendant exposed Plaintiff to asbestos; Sid Harvey's motion for summary judgment will be granted.
Defendant Warren Pumps ("Warren") argues that Plaintiff has failed to present sufficient evidence to allow a reasonable finder of fact to conclude that Plaintiff was exposed to asbestos attributable to Warren, or that such exposure was a proximate cause of his alleged injury. For the reasons discussed below, the Court finds that there is a genuine issue of material fact as to this Defendant, and Warren's motion for summary judgment will be denied.
The instant action arises out of Plaintiff George Vesper's alleged exposure to asbestos from a variety of products mined, milled, manufactured, sold, supplied, purchased, marketed, installed and/or removed by various corporations, including Defendants Buffalo, DAP, Sid Harvey, and Warren. [Compl., Docket Item 1-2, ¶¶ 1-6.] Plaintiff filed the Complaint in New Jersey Superior Court, Middlesex County, on August 14, 2014, naming 31 defendants.
In the Complaint, Plaintiff alleged that he worked as a machinist, pipe fitter and electrician during the 1950s, 1960s, and 1970s, and was exposed to and came in contact with asbestos products "at various worksites including The New York Ship Building Company [in Camden, New Jersey], the Rail Yards of the Pennsylvania Railroad located in New Jersey as well as other sites throughout the State of New Jersey during the 1950's, 1960's, and 1970's." (Compl. ¶ 1.) Plaintiff alleged that he was also exposed to asbestos as a result of doing home renovations and improvements (via asbestos shingles and other products) and working in the automotive industry (via brakes and clutches). (Complaint ¶ 2 and Docket Entry 95-5 at I.6.) Plaintiff alleged that Defendants manufactured or supplied the asbestos-containing products to which he was exposed, and that he developed asbestosis in 2013 as a result of the exposure. (Complaint ¶ 4.)
On February 3, 2015, Plaintiff served Defendants with a copy of their Answers to Standard Interrogatories. [Pl. Interrog. Resp., Docket Entry 95-5.] In response to a question concerning his on-the-job exposure to asbestos, Plaintiff wrote,
Pennsylvania Railroad — Camden, NJ
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Vesper was deposed as a part of this case on February 10, 11 and 12, 2015. [Docket Item 107, Exs. 1-3 ("Pl. Dep.").] Vesper testified that during the period of time when he worked as a machinist helper on the USS Kitty Hawk, other workers were installing "pumps" associated with the ship's propulsion system (upon which Vesper worked directly); those pumps and their associated plumbing were "being surrounded by asbestos" while Vesper was working in the same environment. [Pl. Dep. 218:11-221:19.] When Vesper was asked whether he knew the brand, trade or manufacturer's name of the pumps that he saw other men hammering the asbestos-containing gasket onto in the engine room of the USS Kitty Hawk, Vesper replied, "I'm sure some of them were Crane"; he did not name any additional manufacturer and then stated that he did not believe he was exposed to asbestos "in any other way while [he] was working in the engine room of the Kitty Hawk on mounting of the main propulsion system." [
At his deposition on February 11, 2015, Vesper described how he may have been exposed to asbestos while working as a sheet metal worker for Pennsylvania Railroad, saying that as he worked with the hot water and cooling systems on locomotives, he would have to remove asbestos insulation from that equipment in order to perform the work on it. [
On February 12, Vesper was asked directly by counsel for Buffalo:
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At his deposition, Vesper testified about his use of DAP products, primarily at home improvement projects on two residential properties in the mid-1970s (namely, one home and one townhouse). [Docket Entry 98-5, Pl. Dep. 450:12-464:12; Docket Entry 110-3, Pl. Dep. 452-464 and 658-669.) Vesper testified on February 12 as follows:
[Pl. Dep. 658:19-659:4.] Vesper had previously testified that he believed he had been exposed to asbestos at 47 Potter Lane (one of the properties) while doing sheetrock repair: "taping [the new sheetrock panels] with what they call spackling or mud, sanding them smooth and repainting." [
On February 12, Vesper went into greater detail about the two DAP products he recalled using. He described one as a "tube of caulk," possibly "one of those little squeeze tubes" rather than a three-inch-diameter, foot-long tube, containing a "white" "liquid material or gooky material." [
DAP submits the affidavit of Ward Treat (an employee who held titles of Senior Chemist, Assistant Quality Control Manager, and Technical Support Specialist at DAP from 1973 to 1990) to show that it has manufactured a spackle product, but that the spackle product does not and has never contained asbestos. [Docket Entry 98-6 ¶¶ 2-5.] DAP submits another affidavit executed by Mr. Treat to establish that DAP did not manufacture a joint compound prior to 1978; and that DAP manufactured a premixed spackle compound, which never contained asbestos. [Docket Entry 98-7 ¶¶ 8-10.] DAP also affirmed in its interrogatory responses that it
[Docket Entry 98-8 at 17, ¶ B.46.] Mr. Treat previously testified at a deposition in a different case on January 13, 2010, that there was a time, beginning in approximately 1973, "when a decision was made [at DAP] to take asbestos out of the caulks and putty." [Docket Entry 110-6 at 7.] Plaintiff has also submitted formula cards, specifications and information for DAP caulking compound (i.e., caulk), showing the presence of asbestos. [Docket Entries 110-4 & 110-5.]
In his interrogatory answers, Plaintiff identified Sid Harvey as the supplier and/or distributor of asbestos products, and specifically named Sid Harvey furnace cement as an asbestos-containing product to which he was exposed. [Pl. Interrog. Resp. ¶ I.6.] At his deposition, Vesper testified that he associated the name Sid Harvey with "[s]ome type of cement. I say Sid Harvey and I remember cement and I remember handling it and I remember applying somewhere" but could not provide further details beyond that he remembered using it in the 1970s. Plaintiff could not remember the color, texture, or packaging of the cement; where he may have gotten it; where he may have used it; or whether the Sid Harvey cement he remembered using did or did not contain any asbestos. [Pl. Dep., Docket Entry 124-1, 671:24-674:16.] Plaintiff only associated the cement and no other products with the name Sid Harvey. [
In its interrogatory responses, Sid Harvey stated only that it "was a wholesale supply house for heating and air-conditioning parts"; that it "carried a very small number of products which may have contained asbestos and which comprised a minute portion of its total product line and sales"; and that it "was never in the business of mining, producing, or manufacturing any asbestos-containing products." [Docket Entry 124-2, ¶¶ 9 and 1.] Neither Sid Harvey nor Plaintiff has identified any of the products Sid Harvey carried which contained asbestos.
Vesper's claims against Warren relate to Vesper's work at New York Ship Building Company. At his deposition, Vesper described what he believed to be his exposure to asbestos while working as a machinist for New York Ship Building. Vesper stated that he believed he had been exposed to asbestos due to working in close proximity to others installing asbestos-containing materials in the context of pumps, piping, and the main propulsion system of the ship [Docket Entry 114-1, Pl. Dep. 222:11-223:20] and due to work being done on piping associated with already-installed pumps [
Vesper testified that he personally manufactured an asbestos gasket for a transfer pump on the USS Kitty Hawk [
Vesper testified that "the manufacturer of the pumps that [he] worked on required as asbestos gasket to be used" and that the pumps would "probably" not function "without the asbestos gaskets". [
Warren's counsel, Timothy Rau, asked Vesper whether Vesper could recall any specific ship upon which he "would have seen a Warren pump" and Vesper could not; nor could he state where, when, or how many times he would have seen a Warren pump. [
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Plaintiff also submitted a medical report dated March 8, 2016, prepared by Dr. Stephen L. Newman, M.D., who concluded to a reasonable degree of medical certainty that "Mr. George Vesper developed asbestos induced pleural disease because of his cumulative occupational exposure to asbestos dust[,]" including his work "at New York Shipbuilding [sic] as a machinist helper" near "asbestos insulated . . . rooms" and "a variety of asbestos equipment such as gaskets, asbestos cloth, [and] asbestos insulation[.]" [Docket Entry 114-4 at 2.]
In earlier, unrelated proceedings, Warren's corporate representative, Roland Doktor, testified that Warren has manufactured pumps that included "asbestos-containing components" (including "asbestos thermal insulation," "asbestos-containing gaskets," and "asbestos-containing packing"). [Doktor's Dep., Docket Entry 114-10, 10:5-14:9.] Doktor also testified that a condenser circulating pump, later installed on the naval ship USS Willis A. Lee, included asbestos components, namely, a gasket and asbestos packing. [
Doktor identified two different pumps, one described as a "distilling unit" and one as a "bilge and fuel oil tank stripping pump," both of which also contained asbestos-containing components per their "list[s] of materials," and were also shipped to the USS Kitty Hawk from Warren. [
Doktor discussed another pump, depicted in "Drawing BS5-2021" which included on one side of the drawing the statement "under `General Notes,' 15, `Insulation and lagging to be provided by shipbuilder,'" and on the other side of the document, the description of "insulating material of '85 percent magnesia, smoothed and pointed with . . . plastic[,]' [meaning] 85 percent magnesia, 15 percent asbestos insulation[.]" [
At summary judgment, the moving party bears the initial burden of demonstrating that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
A factual dispute is material when it "might affect the outcome of the suit under the governing law," and genuine when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Buffalo argues that Plaintiff has not offered evidence sufficient to allow a reasonable finder of fact to conclude that Plaintiff was exposed to asbestos as a result of work performed on, around, or near any of Buffalo's pumps, components, or other products. The Court agrees.
The factual record for purposes of Buffalo's motion is undisputed. [Docket Item 107 at 2-4.] Because Plaintiff has filed no opposition, the Court deems the facts set forth by Defendant undisputed for purposes of the pending summary judgment motion.
A threshold question concerns the applicability of substantive maritime law as opposed to New Jersey law. Buffalo argues that, to the extent Plaintiff alleges that his work with or near Buffalo products occurred while working on U.S. naval ships at the New York Ship Building Company, maritime law applies to Plaintiff's claims. [Docket Entry 107 at 5-8.] The Court need not reach this issue, as Plaintiff has not presented sufficient evidence to allow a reasonable finder of fact to conclude that Plaintiff was exposed to asbestos attributable to Buffalo, which is a required element of Plaintiff's prima facie case under either maritime law or New Jersey law.
Plaintiff was asked at his deposition with what objects he associated the name "Buffalo" and answered, "[E]ither pumps or valves or something of that nature." [Pl. Dep. 792:18-23.] Although Vesper stated that he "know[s] [he's] had Buffalo in [his] hands . . . [and has] been around Buffalo equipment and stuff" (a statement the Court credits), he ultimately could not say whether any Buffalo pumps or valves were aboard any ship upon which he worked, nor could he offer any testimony "that [he was] exposed to asbestos from a Buffalo pump or valve[.]" [
Given that testimony and the absence of any additional evidence or testimony (including any evidence that Buffalo pumps or valves did indeed contain asbestos or require asbestoscontaining components) which would allow a reasonable finder of fact to conclude that Plaintiff was exposed to asbestos attributable to Buffalo, the Court finds that based on the undisputed facts in the record, summary judgment is warranted for the defendants.
DAP argues that summary judgment should be granted in its favor because Plaintiff has failed to present sufficient evidence showing that he was exposed to asbestos in a DAP product. The Court disagrees.
Under New Jersey asbestos law, a plaintiff must provide sufficient direct or circumstantial evidence that allows an inference that the plaintiff was "exposed to a defendant's friable asbestos frequently and on a regular basis, while [he or she was] in close proximity to it (balancing these factors)[.]"
New Jersey courts have found proximate cause and product identification in cases where a plaintiff "placed himself in close proximity in relatively small rooms to asbestos-containing products . . . which were friable," although the plaintiff did not "testify that he often found himself covered with dust."
DAP argues in its motion that Vesper failed to present evidence that he "was exposed to asbestos-containing products manufactured, sold, supplied, and/or attributable to DAP, Inc. k/n/a La Mirada Products, Co., Inc." or "that he was exposed to such friable asbestos-containing products on a regular and frequent basis and that he worked in close proximity to such products[.]" [Docket Entry 98-1 at 7-8.] Specifically, DAP states that although Vesper identified DAP as the maker or supplier of an asbestos-containing "[c]aulking, [c]ement, [and/or j]oint-[c]ompound [p]roduct" in his responses to interrogatories, Vesper in fact testified that he
[
For this assertion, DAP appears to be pointing to the following exchange in Plaintiff's deposition:
[Docket 110-3, Pl. Dep. 658:19-25.]
[
Plaintiff in his Response stated that he had indeed identified using two DAP products, at least one of which was a "caulk." [Docket Entry 110 at 2.] Vesper also stated in his sworn affidavit of March 23, 2016 that he used those two DAP products on a regular and frequent basis and that he "would be exposed to dust from these products when [he] needed to sand them so [he] could apply a new coat." [Docket Entry 110-4 at 4.] He continued: "Had I been asked about the frequency of my use of these products during the course of my deposition, I would have testified accordingly." [
Vesper's testimony at his deposition clearly indicates that he used not one, but two products, both of which he stated were made by DAP. He identified one as a "caulk," described its packaging in a tube, and described using it in a caulking gun. The other, he described as coming in a container and stated: "I think it was more than — I see it as a spackling, what we called mud type of product." This phrase—"I see it as a spackling"—is most properly read to modify the
As DAP aptly states in its reply:
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Although DAP stated in its interrogatory responses that "[a]ny of [its] products that contained encapsulated chrysotile asbestos were premixed, wet and gooey formulations thereby making the asbestos fibers non-respirable[,]" it also stated that "any alleged hazard is the subject matter of this litigation." (Docket Entry 98-8, DAP Interrog. Resp. B.14 and B.23.) The Court likewise agrees that, at this stage of the proceedings, summary judgment cannot be granted on this ground as it is the subject matter of this litigation and an appropriate question for the finder of fact.
DAP is free to argue in due course that the evidence does not establish by a preponderance that Plaintiff was actually exposed to friable asbestos attributable to it; that Plaintiff did not use caulk; that what he remembered as caulk was a different product; that caulk is or was not suitable for use in the way Vesper described; or that its caulk would not behave in the way he described; or any other appropriate arguments it believes are inferable from the factual record as it develops. However, it is not the role of a court assessing a motion for summary judgment to arrive at these types of credibility or factual determinations; any such conclusions would be for the finder of fact. On the evidence presented, a reasonable finder of fact could determine that Plaintiff was sufficiently exposed to asbestos attributable to DAP, and for that reason, the Court will deny DAP's motion for summary judgment.
Sid Harvey argues that Plaintiff has failed to produce evidence tending to show that he was exposed to asbestos due to contact with an asbestos-containing product made, sold, distributed, or otherwise attributable to Sid Harvey. The Court agrees.
A plaintiff must show that he was injured by a specific product, manufactured, sold, distributed, or otherwise attributable to a specific manufacturer or other party in order to make out a prima facie case in a product liability action against that party.
Plaintiff's only evidence regarding Sid Harvey arises from 1) his bare-bones and conclusory answers in his interrogatory responses that he was exposed to asbestos through Sid Harvey furnace cement and/or other "asbestos products" it supplied or distributed; and 2) his statement at his deposition that he associates Sid Harvey with a cement of unknown type that he remembers using in the 1970s. Plaintiff stated that he did not know whether the cement he remembered contained asbestos; nor has Plaintiff produced or pointed to any other evidence in the record that the cement Plaintiff used (or any cement Plaintiff was likely to have used) either did or likely would have contained asbestos. While Sid Harvey's responses to interrogatories were themselves bare-bones, the sum of the evidentiary record would not allow a reasonable finder of fact to conclude that Vesper was exposed to asbestos via a Sid Harvey product. Plaintiff argues that a "material such as furnace cement is clearly a product which would have been within the purview of" Sid Harvey, which "sold materials related to heating and air conditioning." [Docket Entry 124 at 4.] While this is so, this does not tend to establish that the cement Vesper recalled using or the furnace cement he cited in his interrogatory responses contained asbestos.
To find that Sid Harvey products exposed Plaintiff to asbestos, or that there is a genuine dispute of material fact as to this point, would be to speculate beyond what evidence is contained in the record. Because of this, the Court will grant summary judgment to Sid Harvey.
Warren argues that Plaintiff has not produced sufficient evidence tending to show a genuine dispute of material fact that Plaintiff was exposed to any asbestos-containing component part manufactured or supplied by Warren Pumps. (Docket Entry 95-3 at 13.) The Court disagrees.
As discussed above,
Plaintiff has supplied evidence that Warren pumps, specifically those which had or required asbestos-containing components (including asbestos gaskets), were supplied to New York Ship Building during the time frame when Plaintiff worked there.
Warren argues that Plaintiff did not state that he recalled working on Warren pumps specifically on the USS Kitty Hawk or any other specific ship, but this is not fatal to his claims. Plaintiff has put forth sufficient evidence to present a genuine issue of material fact regarding his exposure to asbestos attributable to his work with Warren pumps, given that he has testified that he remembers working on Warren pumps while working at New York Ship Building; that he has described being exposed to asbestos due to making gaskets for pumps; and has put forth evidence that Warren supplied pumps with or requiring such asbestos gaskets to a ship upon which he worked at the relevant time. A reasonable finder of fact could conclude, despite the lack of direct testimony by Plaintiff that he remembers working on Warren pumps on the Kitty Hawk, for example, that his memory of working on Warren pumps, his memory of working with asbestos gaskets on the Kitty Hawk, and the presence of Warren pumps with or requiring asbestos gaskets on the Kitty Hawk—when taken together—make it more likely than not that Plaintiff was exposed to Warren pumps' asbestos-containing components during his time at New York Ship Building.
Warren also argues that Plaintiff has not produced sufficient evidence that would allow a reasonable trier of fact to conclude that Warren or its products could be considered a substantial factor (i.e., a proximate cause) in causing Plaintiff's asbestosis. (Docket Entry 95-3 at 17.) It argues that Plaintiff has not shown sufficient evidence of frequency, proximity or regularity of exposure to Warren-supplied or Warren-manufactured asbestos-containing equipment, components, or products. (
Plaintiff avers that he is owed discovery promised to him by Warren, and that his "tangible proof concerning his claims is consequently limited." [Docket Entry 114 at 2.] The Court finds that he has nevertheless produced sufficient evidence to raise a genuine issue of material fact as to his exposure to asbestos through his work upon or near Warren pumps or components, and as to the relationship of such exposure to his subsequent claimed injury. As such, Warren's motion for summary judgment will be denied.
For the reasons discussed herein, Defendant Buffalo's and Sid Harvey's respective motions for summary judgment will be granted and Defendant DAP's and Warren's respective motions for summary judgment will be denied. The accompanying Order will be entered.