TRENTON, N.J. (Legal Newsline) – A New Jersey appellate court has agreed a pump manufacturer had a duty to warn those who would be working with its products about the asbestos-containing component parts, but affirmed a summary judgment ruling because the plaintiffs failed to provide evidence showing specific exposure to the defendant’s products.
After arguing the case in the Superior Court of New Jersey Appellate Division in September, the appeals court concluded on April 23 that the plaintiffs failed to prove causation.
Judge Marianne Espinosa delivered the opinion. Judges Clarkson Fisher and Ellen Koblitz agreed.
Four consolidated lawsuits brought in the Superior Court of New Jersey in Middlesex County alleged the plaintiffs were exposed to asbestos from component parts of pumps manufactured by Goulds Pumps, Inc.
The trial court granted summary judgment to Goulds, resulting in an appeal filed by all four plaintiffs.
The appeals court was considering whether a manufacturer has a duty to warn of the dangers associated with asbestos-containing component parts that were regularly replaced as part of routine maintenance.
Espinosa wrote that it would be “reasonable, practical and feasible” to impose a duty to warn, but the plaintiffs failed to make a prima facie showing of causation.
The appeals court rejected the plaintiffs’ argument that causation was proven by showing proximity to Goulds’ product without proving they were directly exposed to asbestos-containing products manufactured or sold by Goulds.
“The circumstances in this case suggest that Goulds had a duty to warn that component parts of its pumps contained asbestos,” Espinosa wrote. “However, despite drawing reasonable inferences from the record in the light most favorable to plaintiffs, we also conclude that summary judgment was properly granted here because plaintiffs failed to make a prima facie showing of causation.”
Plaintiff Thomas Fayer was a member of the Asbestos Workers Union, Local 14, and was diagnosed with lung cancer in July 2009. He died from his injuries in January 2010 at the age of 81.
Plaintiff Angelo Mystrena, a member of the International Association of Heat and Frost Insulators and Asbestos Workers, Local 89, was diagnosed with asbestosis in December 2009.
Plaintiffs Michael Greever and Elbert Hughes alleged they suffer from asbestos-related pulmonary disease.
Until 1985, a majority of the pumps Goulds manufactured included asbestos-containing gaskets and packing.
Espinosa stated that Goulds knew the asbestos-containing component parts would need to be replaced in the pumps as part of routine maintenance, which was the case for the plaintiffs in this lawsuit.
By the time the plaintiffs worked in proximity to the pumps, the original gaskets and packing had been replaced, and the manufacturer or supplier of the replacement parts remained unknown.
Goulds moved for summary judgment in the Hughes and Greever cases in August 2011 and then requested summary judgment in the Fayer and Mystrena cases in November 2011.
Goulds argued that the plaintiffs failed to present evidence proving they were exposed to asbestos-containing products it either manufactured, distributed or supplied, “let alone with frequency, regularity and proximity.”
The trial court granted summary judgment, noting that while the plaintiffs worked on Goulds pumps, “there’s absolutely zero proof that Goulds supplied, manufactured, or anything, the replacement gaskets and packing so what this fellow may have been exposed to was a product manufactured and sold by someone else.”
The plaintiffs agreed that the manufacturers of the replacement components cannot be identified, but asserted Goulds should still be strictly liable for failing to provide a warning when the original component parts contained asbestos.
The trial court disagreed and granted summary judgment, concluding that Goulds was not liable for failure to warn because it did not specify or require asbestos-containing replacement component parts.
“The court concluded that because long-standing New Jersey law requires the defect to exist when the product leaves the defendant’s control, liability should be limited to those defendants in the chain of distribution of the defective product,” Espinosa wrote.
In their appeal, the plaintiffs alleged Goulds was strictly liable for its failure to warn because it was foreseeable that asbestos-containing products would be used in the pumps when the gaskets and packing were replaced.
Fayer and Mystrena also individually assert Goulds is liable on common law negligence grounds.
However, Goulds alleged the plaintiffs failed to show they were exposed to asbestos from products it manufactured, distributed, sold or supplied, and that they failed to present a prima facie case proving Goulds was strictly liable. It added that strict liability principles are limited to those in the chain of distribution of the product allegedly resulting in asbestos exposure.
Espinosa began by examining the question of whether Goulds had a duty to provide a warning, citing New Jersey law that states manufacturers and subsequent parties in the chain of distribution are strictly liable for damages caused by defectively designed products.
On the other hand, Goulds alleged it is not in the “chain of distribution” of the asbestos-containing component parts, meaning it did not have a duty to warn.
“As we have noted, the nature of the product is an important factor in assessing the reasonableness of defendant’s conduct in failing to provide a warning,” Espinosa wrote. “It is undisputed that the pump as originally marketed had gaskets and packing that contained asbestos. However, the parties disagree as to whether this made the pump dangerous.”
Eugene Bradshaw, Goulds’ corporate designee, testified that there was no danger because the gaskets were contained between metal parts and packing that contained “rubberizing gumming things” lubricating the gaskets when being used.
However, Thomas Fayer’s son, Gregory Fayer, worked as an insulator and testified that removing and replacing old gaskets and packing in Goulds pumps creates visible dust that his father would have inhaled.
Espinosa explained that the defendant is presumed to know of any danger its product posed to users under a strict liability analysis. Assuming Goulds failed to provide a warning when the original pumps entered the marketplace, the appeals court focused on determining the foreseeable users and uses of the product.
“In this case, asbestos-containing gaskets and packing posed an inherent danger in the pumps as originally manufactured,” she added. “The fact that these component parts would be replaced regularly as part of routine maintenance did not absolve Goulds of any duty to warn because it was reasonably foreseeable that these components would be replaced as part of regular maintenance.”
While it is understood that Goulds did not require asbestos-containing replacement parts, the company was unaware of any substitutes for asbestos gaskets and packing until the 1960s and 70s, Espinosa concluded. Therefore, it was reasonably foreseeable that the component parts would be replaced with asbestos-containing products, she wrote.
As a result, those working with the pumps as originally manufactured and those working with the replacement component parts are included in the foreseeable class of users, including the plaintiffs in this case.
Regardless, Espinosa wrote that just because harm is foreseeable, the court must take fairness and policy in consideration before imposing a duty to warn.
“Mindful that the purpose of a warning is to reduce the risk of a product ‘to the greatest extent possible without hindering its utility,’ we also assume that the cost of including a warning when the pump is originally marketed would have ‘but a slight impact on the risk-utility analysis, since such cost would generally have little, if any, effect on a product’s utility,’ and that the manufacturer has the capacity to include any attendant additional cost to purchasers as needed,” she continued.
Ultimately, the appeals court concluded that it was “reasonable, practical and feasible” to impose a duty to warn on Goulds.
“Since risk of exposure continued and was perhaps increased by the replacement process, a warning given at the time of the initial sale would ensure that this information was available to be considered in subsequent decisions regarding the choice of replacement parts and any additional safeguards for workers who made the replacements,” Espinosa wrote.
Despite the fact that Goulds owed a duty to warn the plaintiffs, the appeals court was not convinced that the plaintiffs provided sufficient evidence to prove causation, thus rendering summary judgment appropriate.
Espinosa explained that plaintiffs do not have to prove direct evidence and can rely on circumstantial evidence.
“Still, liability should not be imposed on mere guesswork,” Espinosa wrote.
In order for the plaintiffs to support causation allegations from circumstantial evidence, they have to provide evidence of exposure specifically to Goulds’ products on a “regular basis over an extended period of time in proximity to where the plaintiff actually worked.”
While the plaintiffs may be able to prove the asbestos-containing gaskets and packing were being used at their workplaces, they must provide actual proof linking their exposure to the products in order to impose strict liability, she wrote.
The plaintiffs believe they did provide sufficient evidence to survive summary judgment by proving they had extensive contact with Goulds pumps. However, they did not show sufficient contact with the component parts that allegedly caused their injuries, the opinion states.
“We do not agree that plaintiffs may prove causation by showing exposure to a product without also showing exposure to an injury-producing element in the product that was manufactured or sold by defendant,” Espinosa wrote. “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.”
Because the plaintiffs failed to provide evidence that they had contact with asbestos from the replacement parts that were actually manufactured or sold by Goulds, the appeals court concluded that summary judgment was appropriate.
As for Fayer and Mystrena’s negligence claims against Goulds, Espinosa concluded that a negligence claim requires proof that Goulds knew or should have known that the failure to warn could result in injury. Because the plaintiffs failed to present proof, the appeals court concluded that summary judgment was proper.
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