Presented by the Asbestos and Mass Tort Litigation Practice Group

Legal Updates for Toxic Torts Litigation - May 2014

May 1, 2014

Edited by Timothy D. Rau, Esquire

NJ Superior Court Affirms Bare Metal Defense

by Paul Johnson, Esq.

In Hughes v. A.W Chesterton, 2014 N.J. Super. LEXIS 54 (App. Div. 2014), the NJ Appellate Division rendered its decision in four asbestos matters which raised the “bare metal” defense asserted by a pump manufacturer, Goulds Pumps. The court found that a plaintiff needs to demonstrate exposure to friable asbestos from replacement component parts either manufactured or sold by Goulds Pumps in order to defeat a motion for summary judgment, effectively adopting the "bare metal" defense.

The court held that an equipment manufacturer has a duty to warn about the potential hazards of exposure to asbestos at the initial sale and marketing of their products. The Appellate Division found it to be “reasonable, practical and feasible to impose” a duty on a manufacturer to warn that component parts, “which will be regularly replaced as part of routine maintenance, contain asbestos.”

The Appellate Division believed that the asbestos containing gaskets and packing posed an inherent danger in the pumps as originally manufactured. According to the court, it was reasonably foreseeable that these components would be replaced as part of regular maintenance. Recognizing that the “overriding goal” of strict product liability is “to protect consumers and promote product safety,” and that “the purpose of a warning is to reduce the risk of a product ‘to the greatest extent possible without hindering its utility,’” the court determined that “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”.

The court rejected the plaintiffs' argument that “causation may be proved by proximity to defendant’s product in the absence of proof that they were exposed to an asbestos-containing product manufactured or sold by defendant…” The court stated that, in order to prove causation, a plaintiff had to show “exposure to an injury-producing element in the product that was manufactured or sold by defendant.” Since plaintiffs “failed to produce evidence they had any contact with friable asbestos in replacement parts that were manufactured or sold by Goulds [the pump manufacturer], summary judgment was appropriate.”

In so holding, the Appellate Division has determined that a plaintiff must demonstrate actual exposure to an asbestos-containing replacement part either manufactured or supplied by that equipment manufacturer in order to defeat a summary judgment motion.

For more information on the opinion, please contact Paul Johnson of our Cherry Hill office.

PA Superior Court Rules Plaintiff Must Show Regular and Frequent Exposure as Cause of Disease

by Timothy Rau, Esq.

In a non-precedential opinion, the court affirmed two summary judgment rulings in which the trial court had dismissed the plaintiff's claims for failing to produce evidence that the plaintiff was exposed to asbestos from the defendants' products on a regular and frequent basis and that the exposures caused the plaintiff's injury. In Estate of Cheryl Groover v.CBS Corp, et al. (No. 680 EDA 2013), the plaintiffs alleged that Cheryl Groover developed mesothelioma as a result of exposure to asbestos from Westinghouse turbines and Sarco steam traps through laundering her husband's work clothes. Stating that the plaintiffs "may no longer simply offer evidence that he or she worked with or around a defendant's product," the court affirmed dismissal of the plaintiff's claims against Westinghouse and Sarco.

In reviewing the evidence the plaintiffs put forth against the two defendants, the court considered whether Mr. Groover's work regularly and frequently placed him in the proximity of the defendants' products such that a jury could conclude that asbestos fibers from the products attached to his clothes, were breathed by Mrs. Groover when she did the laundry and were a substantial cause of her disease. In considering the evidence against Westinghouse, the Court found that co-worker testimony from Mr. Groover's brother did not place Mr. Groover in the presence of asbestos fibers from Westinghouse turbines. The evidence of record only established that the witness and Mr. Groover only worked together during a 10 week period in 1988 and there was no evidence that the turbines contained asbestos at that time. The plaintiff had attempted to establish the existence of factual disputes through the use of discovery responses.

With regard to Sarco, the plaintiffs alleged that asbestos-containing gaskets in steam traps were a cause of Mrs. Groover's mesothelioma. In relying on Howard v. AW Chesterton, 78 A.2d 605 (Pa. 2013), the court acknowledged that summary judgment is appropriate where the plaintiff fails to put forth expert evidence that a specific exposure was sufficient to cause the alleged disease. In the instant case, the court found that Plaintiff did not establish that the plaintiff breathed asbestos dust from a Sarco product that caused Mrs. Groover's mesothelioma.

Punitive Damages May Be Sought in NYC Asbestos Cases

by Arthur Bromberg, Esq.

Judge Sherry Klein Heitler recently issued an order and opinion granting a motion filed by Weitz & Luxenberg on behalf of several plaintiffs amending the New York City Asbestos Litigation ("NYCAL") case management order to allow the plaintiffs to seek punitive damages against the defendants. Prior to the decision issued on April 8, 2014, the NYCAL case management order had deferred all punitive damages claims since 1996.

The court noted in the 19-page opinion that, with the exception of NYCAL, punitive damages are generally permitted in New York as a matter of public policy. The court found that the CMO should be amended to allow plaintiffs to seek punitive damages in accordance with the procedures of every other court in the state of New York.

Although the plaintiffs may now seek punitive damages in NYCAL, the Judge Heitler stated that "punitive damages should only be sought in the most serious cases to correct for the most egregious conduct." Judge Heitler also termed the plaintiffs' burden for recovering punitive damages as "a very heavy one."

For more information on the ruling, please contact Art Bromberg of our Roseland office.

New Coordinating Judges Assigned to Asbestos Cases in Middlesex County (NJ) and Northampton County (PA)

The Northampton County court in Easton, PA and the Middlesex County court in New Brunswick, NJ recently appointed new coordinating judges to supervise the asbestos programs in their courts.

In Middlesex County, the New Jersey Judiciary appointed the Honorable Ana C. Viscomi, JSC as the dedicated trial judge for all asbestos litigation in New Jersey, replacing the Honorable Vincent J. LeBlon, JSC, who held this position since September 2012. It is anticipated that Judge Viscomi will eventually attempt to revise some of the procedural aspects of case management and trial of asbestos lawsuits as she moves forward in this position. Judge Viscomi will likely seek out comment from the asbestos bar, and our office will be poised to offer suggestions and recommendations on these important matters on behalf of our clients.

In Northampton County, Judge Anthony Beltrami will assume asbestos program responsibilities. Until very recently, the asbestos program was administered by the Honorable Edward Smith, with the assistance of docket manager Joseph Corpora, Esquire. Judge Smith was appointed to fill a vacancy on the United States District Court for the Eastern District of Pennsylvania. Although no formal transition plans have been set forth, Judge Betrami will take over the program in the very near future. Judge Betrami began his legal career as a law clerk to President Judge Robert Freedberg and then established his own civil litigation practice. Judge Betrami also served as an Assistant Public Defender (1994-1996) and an Assistant District Attorney (1996-1999).

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