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

• Court: New Jersey Superior Court Appellate Division
• Decided: August 6, 2018
• Docket: A-3520-13T4
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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

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.

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

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

45 A-3520-13T4 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

46 A-3520-13T4 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

47 A-3520-13T4 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

48 A-3520-13T4 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.

50 A-3520-13T4