Predicting the Tides

The Facts

Plaintiff Samuel R. Feaster developed mesothelioma allegedly as a result of exposure to asbestos while working at New York Shipbuilding and Drydock Company (“NY Ship”) in Camden, NJ, and Sun Ship Yard (“Sun Ship”) in Chester, PA. The plaintiff worked as a cleaner at NY Ship from 1958 to 1967, where he was involved in sweeping, scaling, sand blasting and general clean-up of debris on vessels at the shipyard. He claimed that he was exposed to asbestos while working in close proximity to other trades and materials ' specifically, insulation that he identified as Johns Manville and Owens Corning. He also believed that he was exposed to asbestos while working around pipe and duct insulation on a number of vessels, but could not identify the brands of the insulation. The plaintiff also performed sandblasting work, both on and off the ships, while at NY Ship, but could not say whether he was exposed to asbestos by virtue of this role. He performed sweeping duties both on the ships and off, but mostly on the ships, and went out to sea while employed with NY Ship.

At Sun Ship, the plaintiff worked as a cleaner, rigger trainee, and as a rigger first, second, and third class. Riggers are responsible for moving and connecting heavy machinery. The plaintiff alleged that while working for Sun Ship, he was exposed to asbestos while assisting pipefitters with valves and machinists with motors, as well as through working with electricians and cutting and manipulating insulation. He also believed that he was exposed to asbestos while sweeping in the boiler room and the main steam pipes.

Feaster identified General Electric in connection with his duties as a rigger trainee. He testified that he was exposed to asbestos in the engine and pump rooms while working with motors, and when asked who the manufacturers of the motors were, the plaintiff stated: “GE was in on a lot of things. I'll say GE; familiar name.” Later, during his testimony about his role as a rigger second-class, the plaintiff stated that he was exposed to asbestos when others around him opened up turbines and cut off insulation. Again, when asked to identify the manufacturer of the turbines, he testified: “Just, like I said, GE is a very common name. GE makes everything.”

The plaintiff could not specifically identify a single ship where he believed he worked on a GE turbine, though he did have specific recollections of working around GE turbines. Based on this, General Electric moved for summary judgment, arguing that maritime law should apply to the plaintiff's claims, and, applying that standard, that Feaster had not produced sufficient evidence of exposure to asbestos through a product manufactured or supplied by GE.

The Maritime Law Standard

In Deuber v. Asbestos Corp., No. 2:10-CV-78931, 2011 WL 6415339, at *1 (E.D.Pa. Dec. 2, 2011), Judge Robreno defined the standard for determining whether maritime law should apply in a particular case:

In order for maritime law to apply, a plaintiff's exposure underlying a products liability claim must meet both a locality test and a connection test. The locality test requires that the tort occur on navigable waters or, for injuries suffered on land, that the injury be caused by a vessel on navigable waters. In assessing whether work was on 'navigable waters' (i.e., was sea-based) it is important to note that work performed aboard a ship that is docked at the shipyard is sea-based work, performed on navigable waters. By contrast, work performed in other areas of the shipyard or on a dock ' is landbased work. The connection test requires that the incident could have 'a potentially disruptive impact on maritime commerce,' and that 'the general character' of the 'activity giving rise to the incident' shows a 'substantial relationship to traditional maritime activity.'

Feaster at *4.

Where there is a mix of work performed on land and work performed on navigable waters, the locality test will be met as long as some portion of the asbestos exposure being alleged actually occurred on navigable waters. With regard to the connection test, the exposure must be primarily sea-based in order for maritime law to apply. Where there are distinct periods of sea-based and land-based exposure, a court can apply two different laws. Id.

Once it has been established that maritime law should be applied, the “substantial factor” standard controls. Thus, in order to establish causation, “a plaintiff must show, for each defendant, that 1) he was exposed to the defendant's product, and 2) the product was a substantial factor in causing the injury he suffered.” Id. at *5 (internal citations and quotations omitted). To meet this standard, a plaintiff must show that the defendant manufactured or distributed the asbestos-containing product, and that the exposure was significant enough that “an inference that the asbestos was a substantial factor in the injury is more than conjectural.” Id.

The New Jersey Standard

By contrast, New Jersey employs the Sholtis standard, which requires that “in addition to other elements of a product liability action,” a plaintiff must establish “exposure to friable asbestos manufactured or distributed by the defendant.” Id. This standard, outlined by the New Jersey Appellate Division in Sholtis v. American Cyanamid Co., 238 N.J. Super. 8 (App. Div. 1989), is the prevailing law in New Jersey. Sholtis requires that a plaintiff produce evidence demonstrating that “reasonable jurors could infer that sometime during [plaintiff's] work histor[y] ' plaintiff [was] exposed to a defendant's friable asbestos frequently and on a regular basis, while [plaintiff was] in close proximity to it.” Feaster at *5 (internal quotations and citations omitted). The plaintiff must also establish, usually based on expert testimony, that there is a nexus between the exposure to asbestos and a plaintiff's current condition. Importantly, the “significant factor” language present with regard to maritime law is missing from the Sholtis standard.

The Feaster Holding

The Feaster court held that the application of maritime law was warranted in the case, as there was sufficient evidence establishing that any exposure to asbestos relative to a GE turbine would have occurred primarily in the engine rooms aboard the ships at the shipyard, thus qualifying under the definition of a “vessel on navigable waters.” Id. at *5. Additionally, with regard to the alleged exposure from sweeping, the court found that the plaintiff performed most of his sweeping duties on the ships at the shipyard, and only minimal sweeping was done off the ship. Thus, the locality test was met because at least some portion of the exposure occurred while on navigable waters; and, since Feaster was primarily sea-based during the asbestos exposure, the connection test was met as well. Id.

After concluding that maritime law applied, the Feaster court found that under the “substantial factor” test, summary judgment for GE was appropriate because: 1) The plaintiff alleged exposure to asbestos through insulation surrounding GE turbines, but did not provide any evidence identifying the manufacturer of the insulation as GE; and 2) The plaintiff did not supply any evidence indicating that GE turbines and/or motors contained asbestos.

And the court did not stop there. After finding that maritime law applied, the court went on to explain that even under New Jersey law, summary judgment would still be appropriate. This was particularly interesting because, only months before, in a similar case involving a summary judgment motion by GE and the application of maritime law, the New Jersey District Court chose not to delve into New Jersey law's treatment of a failure-to-warn asbestos claim. See Shearer v. A.W. Chesterton Co., No. 13-5887, 2015 WL 3889366 (D.N.J. Jun. 24, 2015). In Shearer , the Plaintiff argued that the district court should address how the New Jersey Supreme Court would rule on the failure-to-warn claim. The court there observed:

Plaintiff seeks a ruling that under New Jersey law GE is liable for failing to warn of the hazards of asbestos in the insulation manufactured and supplied by an entity other than GE, but used with GE's turbines after GE had placed its bare metal turbine into the stream of commerce. The New Jersey Supreme Court has not ruled as to the applicability of the bare metal defense under New Jersey law. Rather, Plaintiff argues under the holdings in Brown v. United States Stove Company, 98 N.J. 155, 484 A.2d 1234 (1984), Seeley v. Cincinnati Shaper Company, Ltd., 256 N.J.Super. 1, 606 A.2d 378 (N.J. App. Div.1992), and Molino v. B.F. Goodrich Company, 261 N.J.Super. 1, 617 A.2d 664 (N.J. App. Div.1992) that New Jersey would reject the bare metal defense in favor of a risk utility analysis which incorporates a foreseeability standard. In so doing, Plaintiff rejects the New Jersey Appellate Division's recent holding in Hughes , 435 N.J.Super. 326, which upheld a grant of summary judgment where a plaintiff failed “to produce evidence they had any contact with friable asbestos in replacement parts that were manufactured or sold by Goulds[.] Hughes, 435 N.J.Super. 326 (citing Sholtis, 238 N.J. Super. at 28'29, 568 A.2d 1196).

Shearer at *6.

In response, the Shearer court explained that it “need not answer that question because Plaintiff's claims are governed by maritime law,” where the bare metal defense applies. Id.

And yet, even though the same reasoning could have been applied in Feaster, Magistrate Judge Karen M. Williams chose to address the substantive legal issues under New Jersey law, ultimately concluding that summary judgment would have been appropriate even under the state's standard. Indeed, the plaintiff in Feaster asked the court to “predict how [the New Jersey Supreme Court] would decide this issue.” Feaster at *6.

The plaintiff argued that under New Jersey law, GE should be liable for a failure to warn of dangers associated with its product. Id.

In response, Judge Williams explained that the guiding law in the Third Circuit is that “[i]n the absence of an authoritative pronouncement by a state's highest court, [the district court] may give serious consideration to the opinion of an intermediate appellate court.” Aetna Cas. & Sur. Co. v. Farrell, 855 F.2d 146, 148 (3d Cir. 1988). The court therefore looked to the recent New Jersey Appellate Division decision in Hughes, which held that liability may only attach in an asbestos failure-to-warn claim where “a plaintiff identifies an asbestos-containing product manufactured or supplied by the defendant.” Hughes v. A.W. Chesterton Co., 435 N.J. Super. 326, 345 (App. Div. 2014). Applying this standard, Judge Williams found that, as discussed above, the plaintiff had failed to identify an asbestos-containing product manufactured or supplied by GE.

Conclusion

It is significant for future litigation that the Feaster opinion finds the Hughes decision authoritative. This does not rule out the possibility that the New Jersey Supreme Court may eventually take a different position, but it does plant the seed for a future decision on these failure-to-warn asbestos claims. Both the plaintiff and defense bars eagerly await a ruling from the New Jersey Supreme Court establishing whether the Hughes standard will control in failure-to-warn claims. Until then, Feaster has given us reason to believe that the tides may not be turning away from Hughes in New Jersey failure-to-warn asbestos claims.

Pamela R. Kaplan is an associate in Porzio, Bromberg and Newman, P.C.'s litigation group. Ms. Kaplan's practice concentrates on product liability, toxic tort, and mass tort litigation.