BARNES et al v. FOSTER WHEELER CORP et al

Filing 55

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 6/30/14. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Kimberly M. Barnes, Executor
of the Estate of John W.
Barnes, Jr., and John W.
Barnes III, Administrator of
the Estate of Jeanette Barnes,

HONORABLE JEROME B. SIMANDLE

Civil Action
No. 13-1285 (JBS/JS)

Plaintiffs,
OPINION
v.
Foster Wheeler Corp., et al.,
Defendants.

APPEARANCES:
James J. Pettit, Esq.
LOCKS LAW FIRM LLC
801 N. Kings Highway
Cherry Hill, NJ 08034
Attorney for Plaintiffs Kimberly M. Barnes and John W.
Barnes III
David Schuyler Blow, Esq.
Michael A. Tanenbaum, Esq.
SEDGWICK LLP
Three Gateway Center
12th Floor
Newark, NJ 07102
-andJoanne Hawkins
SPEZIALI, GREENWALD & HAWKINS P.C.
1081 Winslow Road
Williamstown, NJ 08094
Attorneys for Defendant General Electric Company

SIMANDLE, Chief Judge:

I.

INTRODUCTION
This matter comes before the Court on Defendant General

Electric Company’s (“GE”) motion for summary judgment.
Item 49.]

[Docket

This case arises from the death of John W. Barnes,

Jr. (“Barnes”) from alleged exposure to asbestos.

Plaintiffs1

assert that Barnes was exposed to asbestos-containing products
manufactured, distributed, or supplied by GE during his service
in the United States Navy from 1950 to 1952 and that his
exposure to these products caused his death.

GE’s motion turns

on whether Plaintiffs have provided sufficient evidence that GE
manufactured or supplied asbestos or an asbestos-containing
product to which Barnes was exposed such that a reasonable jury
could find in Plaintiffs’ favor.
For the reasons set forth below, GE’s motion for summary
judgment will be granted.
II.

BACKGROUND
A. Factual Background
The late Mr. Barnes served in the Navy as a fireman from

May 29, 1950 to April 15, 1952 aboard the USS Everglades.
(Pl.’s Ans. to Interrog., Def. Ex. B. [Docket Item 49-5] at I.4;
1

The initial Complaint was filed by John Barnes, Jr. and
Jeanette Barnes as husband and wife. John Barnes, Jr. died on
November 21, 2011 and Jeanette Barnes died on October 25, 2011.
Subsequently, an Amended Complaint was filed by Kimberly Barnes
as Executrix of the Estate of John W. Barnes, Jr., and John W.
Barnes III as Administrator of the Estate of Jeanette Barnes.
The docket should, but does not, reflect the substitution of
these individuals as plaintiffs.
2

Def. Statement of Undisputed Facts (“SMF”) [Docket Item 49-2] ¶
2.)

Mr. Barnes died from mesothelioma (Pl.’s Ans. to Interrog.

at I.9) before being deposed in this matter.

(SMF ¶ 3.)

GE

furnished two propulsion turbines for the USS Everglades on or
about July 8, 1944.

(SMF ¶ 7.)

The GE shipment invoice for

these turbines, dated July 8, 1944, indicates GE supplied the
turbines, supports, spare parts, wrenches, and accessories, but
does not mention insulation.

(Def. Ex. E. [Docket Item 49-8.])

Archie Darling also served aboard the USS Everglades from
1951 to 1956.

(SMF ¶ 6.)

Darling certifies that he “personally

kn[e]w that [f]iremen on the USS Everglades from 1952 to 1953
worked around” the turbines in the engine room, the boiler in
the fire room, the pumps in the fire room, and the pumps in the
engine room.

(Certification of Archie Darling (“Darling Cert”),

Def. Ex. C. [Docket Item 49-6] ¶ 4.)

Darling also states that

he knows “there was asbestos insulation in the fireroom and
engine room in the USS Everglades because it was very commonly
referred to as asbestos among crew members in the engineering
department.”

(Id. ¶ 5.)

Additionally, “no one ever told

[Darling], or crew members in [his] presence on the USS
Everglades . . . that asbestos was a health hazard.”

3

(Id. ¶ 6.)

James Burel2 served in the Navy aboard the USS Everglades
and worked with Barnes “on a regular and frequent basis from
September 1952 to November 1953.”

(Certification of James Burel

(“Burel Cert”), Pl. Ex. A. [Docket Item 53-3] ¶¶ 2-3.)

Burel

“saw [Barnes] exposed to the dust from the external insulation
on the turbine, boiler, motors and pumps on a regular and
frequent basis from September 1952 to November 1953.”
5.)

(Id. ¶

Barnes was exposed to the dust at least three times per

2

GE objects to Plaintiffs’ reliance on Burel’s certification on
the grounds that it is inadmissible at trial and cannot be
considered for purposes of a motion for summary judgment because
it is inaccurate and based on unsupported hearsay statements.
GE also contends that Plaintiffs have failed to comply with Fed.
R. Civ. P. 26 by refusing to provide GE with a good address for
Burel, and as a result, GE has been unable to depose Burel
despite good faith efforts since 2011. (Def. Br. at 1 n.1.)
The Court will consider Burel’s certification on this motion for
summary judgment because his declarations, for the most part,
are not in fact hearsay as they are based on his personal
knowledge. The Court will address the hearsay aspect of Burel’s
certification as necessary below. Furthermore, Fed. R. Civ. P.
56 permits use of an affidavit to support or oppose a motion as
long as it is “made on personal knowledge, set[s] out facts that
would be admissible in evidence, and show[s] that the affiant or
declarant is competent to testify on the matters stated.” Fed.
R. Civ. P. 56(c)(4). Evidence “produced in an affidavit
opposing summary judgment may be considered if the out-of-court
declarant could later present the evidence through direct
testimony, i.e., in a form that ‘would be admissible at trial.’”
J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542
(3d Cir. 1990) (citing Williams v. Borough of West Chester, 891
F.2d 458, 465-66 (3d Cir. 1989)). Burel’s certification
satisfies these requirements. No rule requires Plaintiffs to
have made Burel available for deposition prior to relying on his
certification in opposition to GE’s motion for summary judgment.
However, if Plaintiffs intend to call Burel as a witness at
trial and he remains unavailable for a discovery or trial
deposition, GE may seek to bar his testimony in a pre-trial
motion.
4

month for the 14 months between September 1952 and November
1953.

(Id. ¶ 5.)

Burel states that he knew the “insulation was

asbestos because it was very commonly referred to as asbestos
among crew members in the engineering department, and because it
was only placed on high temperature equipment.”

(Id. ¶ 6.)

Additionally, Burel was unaware “of any non-asbestos insulation
in the early 1950’s which could possibly be placed on this high
temperature asbestos equipment.”

(Id. ¶ 6.)

Burel asserts that

none of the crewmembers in the engineering department of the USS
Everglades during this time knew that asbestos was a health
hazard, nobody wore a mask in the fire or engine room on the USS
Everglades during this time period, and Burel did not see Barnes
wear a mask.

(Id. ¶ 7.)

Importantly, neither Darling nor Burel identifies the
manufacturer or supplier of the insulation discussed above.
Neither certification mentions GE or any other defendant in this
action.
B. Procedural Background
Barnes filed suit on November 4, 2011 in the Superior Court
of New Jersey, Middlesex County against Foster Wheeler Corp.,
General Electric Company, Goulds Pump Inc., Ingersoll Rand
Company Limited, and Owens Illinois Incorporated alleging that
he continually worked with, used, handled and was caused to come
in contact with Defendants’ asbestos-containing products and the
5

asbestos dust and fibers resulting from the ordinary and
foreseeable use of same.3

(Compl. [Docket Item 1-1] ¶ 7.)

Barnes asserted various tort claims against Defendants,
including failure to warn, breach of implied warranty, strict
liability, and product liability.

(Compl. [Docket Item 1-1.])

On February 21, 2013, GE removed the case to the United States
District Court for the District of New Jersey pursuant to 28
U.S.C. §§ 1442(a)(1) and 1446 on the grounds that GE acted under
the authority, direction and control of an officer or agency of
the United States and therefore maintains a colorable federal
law-based “government contractor” defense to Plaintiffs’ claims.
[Docket Item 1.]

On March 19, 2013, Plaintiffs filed a motion

to remand [Docket Item 6], which the Court denied by Opinion and
Order dated June 11, 2013 [Docket Items 11 & 12].

Plaintiffs

filed an amended complaint on July 11, 2013 [Docket Item 20]
after Barnes died and added Allis-Chalmers Corporation4 and
Gardner Denver, Inc. as additional defendants.5

GE then filed

the instant motion for summary judgment on March 31, 2014.6

3

Plaintiff also filed suit against twenty fictitious
corporations.
4
Plaintiffs voluntarily dismissed their claims against
Defendants Owens Illinois Incorporated and Allis-Chalmers
Corporation on June 21, 2013 and August 7, 2013 respectively.
[Docket Items 14 & 28.]
5
The Amended Complaint also asserts claims under the New Jersey
Wrongful Death Act and Survival Act.
6
GE’s motion for summary judgment was filed within the timeframe
set forth in Judge Schneider’s scheduling order for the filing
6

[Docket Item 49.]

Plaintiffs filed opposition to GE’s summary

judgment motion on May 9, 2014.

[Docket Item 53.]

GE did not

file a reply.
III. STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

“Only disputes over facts that might affect the

outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”
Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v. Liberty
Essentially, “summary

judgment will not lie if the dispute about a material fact is
‘genuine,’ that is, if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”

Id.

The

Court will view any evidence in favor of the nonmoving party and
extend any reasonable favorable inferences to be drawn from that
evidence to that party.

Hunt v. Cromartie, 526 U.S. 541, 551

(1999).
IV.

DISCUSSION
GE’s motion for summary judgment is based on two arguments.

First, GE argues that Plaintiffs have failed to provide any

of dispositive motions on product identification. [Docket Item
38.] The Order notes that the Court will address the schedule
for expert reports and depositions after the parties’ product
identification motions are decided. (Id. ¶ 3.)
7

evidence of Barnes’ exposure to any asbestos-containing product
manufactured, supplied, or distributed by GE.

Second, GE argues

that, even if Plaintiffs could identify an asbestos-containing
product manufactured, supplied, or distributed by GE, summary
judgment should be granted because the Plaintiffs have failed to
sufficiently show that Barnes was regularly and frequently
exposed to any such product.

Plaintiffs respond that, under

Kurak v. A.P. Green Refractories Co., 298 N.J. Super. 304 (App.
Div. 1997), where, as here, an individual is diagnosed with
mesothelioma, plaintiff’s burden of proof on the extent of
exposure to asbestos is greatly reduced.
In New Jersey, “to prevail against a particular defendant
in an asbestos case, a plaintiff must establish, in addition to
other elements of a product liability action, exposure to
friable asbestos manufactured or distributed by the defendant.”
Sholtis v. Am. Cyanamid Co., 238 N.J. Super. 8, 30 (App. Div.
1989).

Furthermore, to defeat summary judgment, plaintiff must

adduce evidence such 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[,]” as well as “competent evidence, usually supplied by
expert proof, establish[ing] a nexus between the exposure and
plaintiff’s condition.”

Id. at 31.
8

In Kurak, the court

recognized a lower causation standard in cases where plaintiff
has been diagnosed with mesothelioma.
322.

Kurak, 298 N.J. Super. at

The court stated that, “unlike asbestosis or cancer of the

lung caused by asbestos, mesothelioma, a cancer of the lining of
the lung, can be caused by relatively small exposures to
asbestos”.

Id. at 311.

It is well established that a plaintiff must demonstrate
some level of exposure to a defendant’s asbestos-containing
product.

See Goss v. Am. Cyanamid, Co., 278 N.J. Super. 227,

236 (App. Div. 1994) (noting that it would be insufficient for
plaintiff to show that asbestos-containing products supplied by
defendant were used in plaintiff’s workplace without actual
proof linking plaintiff’s alleged exposure to those products).
In other words, to prevail on a tort claim for asbestos
exposure, plaintiff must identify an asbestos-containing product
manufactured or supplied by defendant.

See Provini v.

Asbestospray Corp., 360 N.J. Super. 234, 238-239 (App. Div.
2003); Wilkerson v. Armstrong World Indus., Inc., Civ. 89-2494
(AMW), 1990 WL 138586, at *4 (D.N.J. Sept. 19, 1990);
Persichetti v. Armstrong World Indus., Civ. 89-2368 (CSF), 1990
WL 72074, at *3 (D.N.J. May 14, 1990).
In Provini, the executor of decedent’s estate brought a
wrongful death and product liability action against several
defendants, alleging that decedent was exposed to asbestos that
9

was manufactured, distributed, imported, or used by defendants.
Provini, 360 N.J. Super. at 236.

Plaintiff asserted that

decedent was exposed to defendants’ asbestos-containing product
when “[decedent] was employed by [defendant] for short periods
of time in 1955 and again in 1960.”

Id. at 237.

However,

plaintiff presented no evidence as to where decedent worked for
defendant or that he was ever exposed to defendants’ asbestoscontaining product.

Id.

Because plaintiff could not

“demonstrate that the decedent was ever exposed to the product,”
the Appellate Division upheld the trial court’s entry of summary
judgment in defendants’ favor.

Id. at 238-239.

In Wilkerson,

plaintiffs alleged that Wilkerson was exposed to defendants’
asbestos-containing products through his employment as a sheet
worker, laborer, and carpenter.
*1.

Wilkerson, 1990 WL 138586, at

Wilkerson attested that he believed the insulation

defendants manufactured and to which he was exposed contained
asbestos only because several people told him so.

Id. at *3.

The court granted defendants’ motions for summary judgment
because “even if the court considered [his] speculative and
hearsay evidence, plaintiffs [had] not raised a reasonable
inference that Mr. Wilkerson was exposed in any substantial way
to defendants’ asbestos-containing products.”

Id. at *4.

Similarly, in Persichetti, plaintiff filed suit against
eighteen defendants alleging that he contracted asbestosis as a
10

result of his exposure to defendants’ products during his time
in the Navy and subsequently while self-employed in the heating
and air conditioning business.
*1.

Persichetti, 1990 WL 72074, at

At plaintiff’s deposition, he identified certain products

supplied by one of the defendants that he “thought contained
asbestos.”

Id. at *2.

It was undisputed that defendants made

one sale of an asbestos-containing product in New Jersey, but
“this one sale was neither shipped nor sold to any of the
plaintiff’s employers.”

Id. at *1.

As such, the court

concluded that there was insufficient evidence to support
plaintiff’s claim that he was exposed to asbestos-containing
products supplied by defendants and granted their motions for
summary judgment.

Id. at *3.

These cases are distinguishable from Sholtis and Kurak
where it was clear that plaintiffs were exposed to asbestoscontaining products supplied by defendants.

Sholtis, 238 N.J.

Super. at 14 (accepting supplemental affidavits and deposition
testimony confirming the presence of defendants’ asbestoscontaining products at American Cyanamid during plaintiffs’
employment there); Kurak, 298 N.J. Super. at 313 (“[T]he
evidence shows that substantial amounts of asbestos-containing
Kaylo were present throughout the [defendant’s] facilities
sometime after 1958.”).

Accordingly, it was necessary for the

11

Sholtis and Kurak courts to consider the frequency and
regularity of plaintiffs’ exposure to asbestos.
In the present action, the Court finds that Plaintiffs have
failed to identify any asbestos-containing product manufactured
or supplied by GE.

It is undisputed that GE supplied the Navy

with two propulsion turbines for use on the USS Everglades.
However, Plaintiffs provide no evidence that these turbines
contained asbestos, nor any evidence of any other asbestoscontaining product manufactured, supplied, or distributed by GE.
There is also no evidence that GE supplied the insulation that
surrounded the turbines or elsewhere in the vessel.

Upon this

record, there is no available inference that these GE turbines
contained asbestos.
Here, like Wilkerson, the only evidence that Barnes was
exposed to asbestos consists of assertions by Darling and Burel
that they heard other crew members refer to the insulation as
asbestos.

As in Wilkerson, the Court notes that such

“[s]peculation is insufficient to establish a material fact on
which to base a denial of summary judgment.”
138586, at *2.

Wilkerson, 1990 WL

The present record invites only speculation and

prevents a reasonable jury from finding that GE manufactured or
supplied any asbestos or asbestos-containing product to which
Barnes was allegedly exposed on the USS Everglades.

12

Further, the only evidence in the record connecting
Barnes’s alleged exposure to any asbestos or asbestos-containing
product is hearsay and cannot be considered on this motion for
summary judgment because such hearsay is inadmissible.

See J.F.

Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d
Cir. 1990) (citing Williams v. Borough of West Chester, 891 F.2d
458, 465-66 (3d Cir. 1989)).

Burel contends that he “saw

[Barnes] exposed to the dust from the external insulation on the
turbine, boiler, motors and pumps on a regular and frequent
basis” and “kn[e]w th[e] insulation was asbestos because it was
very commonly referred to as asbestos among crew members in the
engineering department, and because it was only placed on high
temperature equipment.”

(Burel Cert. ¶¶ 5-6.)

Similarly,

Darling certifies that he “kn[e]w there was asbestos insulation
in the fireroom and engine room in the USS Everglades because it
was very commonly referred to as asbestos among crew members in
the engineering department.”

(Darling Cert. ¶ 5.)

These

statements are hearsay not within any exception, and Plaintiffs
have presented no additional evidence to prove that the turbines
actually contained asbestos, let alone asbestos supplied by GE.
Even if the Court were to consider this hearsay evidence,
at most the record would support the inference that the turbines
provided by GE were surrounded by insulation containing
asbestos.

However, the mere presence of an asbestos-containing
13

product is not enough to establish causation in an asbestos
case.

A “plaintiff cannot rest on evidence which merely

demonstrates that a defendant’s asbestos product was present in
the workplace or that he had ‘casual or minimal exposure’ to
it.”7

Kurak, 298 N.J. Super. at 314 (citing Goss, 278 N.J.

Super. at 236).

Plaintiffs here have shown even less because

they have failed to adduce sufficient evidence for reasonable
jurors to infer that the insulation was manufactured or supplied
by GE.

Therefore, because Plaintiffs have provided insufficient

evidence that Barnes was exposed to asbestos or an asbestoscontaining product manufactured or supplied by GE, the Court
must grant GE’s motion for summary judgment.8

7

Courts have found that manufacturers cannot be “liable for harm
caused by asbestos products they did not manufacture or
distribute because those manufacturers cannot account for the
costs of liability created by the third parties’ products.”
Conner v. Alfa Laval, Inc., 842 F. Supp. 2d 791, 801 (E.D. Pa.
2012) (addressing plaintiffs’ claims against various defendants
that manufactured turbines, pumps, boilers, and valves that were
designed to be used and were sometimes distributed with
asbestos-containing insulation and other products, including GEmanufactured marine turbines that required exterior insulation
and asbestos-containing gaskets). See also Lindstrom v. A-C
Prod. Liab. Trust, 424 F.3d 488, 495-97 (6th Cir. 2005)
(affirming summary judgment in defendants’ favor because a
manufacturer cannot be responsible for a third party’s asbestoscontaining products).
8
Because the Court finds that Plaintiffs have failed to present
admissible evidence that Barnes was exposed to any asbestos or
asbestos-containing product manufactured or supplied by GE, the
Court will not consider the frequency and regularity of Barnes’
alleged exposure.
14

V.

CONCLUSION
For the reasons stated above, the Court will grant GE’s

motion for summary judgment and dismiss all claims against GE
with prejudice.

An accompanying Order will be entered.

June 30, 2014
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

15