PATTERSON et al v. A.W. CHESTERTON COMPANY et al

Filing 68

OPINION. Signed by Judge Robert B. Kugler on 12/4/2014. (drw)

NOT FOR PUBLICATION

(Doc. Nos. 50, 60, 61)

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

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Plaintiffs,
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v.
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A.W. CHESTERTON CO., et al.,
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Defendants. :
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WARREN PATTERSON and
MARGARET PATTERSON,

Civil No. 13-5584 (RBK/JS)
OPINION

KUGLER, United States District Judge:
This case arises out of Plaintiff William Patterson’s (“Patterson”) alleged exposure to
asbestos. Currently before the Court are the unopposed motions of Defendant Kaiser Gypsum
Company, Inc. (“Kaiser Gypsum”) (Doc. No. 50), Defendant Durametallic Corporation
(“Durametallic”) (Doc. No. 60), and Defendant Union Carbide Corporation (“Union Carbide”)
(Doc. No. 61) (collectively “Defendants”) for summary judgment on all claims asserted against
them.1 For the reasons expressed below, Defendants’ motions are granted.
I.

BACKGROUND
Plaintiffs allege that Patterson was exposed to dust from asbestos during the course of his

employment at New York Shipbuilding and Drydock Company in Camden, NJ, and from

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Defendant Georgia Pacific Corporation also filed a motion for summary judgment. (Doc. No. 62.) However,
thereafter, the parties stipulated to the dismissal of this defendant, and dismissal was so ordered on September 29,
2014. (Doc. No. 66.)

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working as a drywall finisher through the International Brotherhood of Painters and Allied
Trades Local Union No. 1955, from about 1953 to the late 1970’s. (Kaiser Gypsum’s Statement
of Undisputed Material Facts (“KGSMF”) ¶ 1-2.) More specifically, Plaintiffs contend that
Patterson was exposed to products containing asbestos supplied by Defendants. (Ex. 1 to Union
Carbide’s Br., Plaintiffs’ Answers to Interrogatories, p. 39.) Patterson was not deposed prior to
his death, but Preston Brooks (“Brooks”), William Mulligan (“Mulligan”), and Herman Frank
(“Frank”) were deposed as fact witnesses. Brooks did not identify any of the Defendants during
his deposition. (KGSMF ¶ 4; Union Carbide’s Statement of Undisputed Material Facts
(“UCSMF”) ¶ 9; Durametallic’s Statement of Undisputed Material Facts (“DSMF”) ¶ 7.) As to
Mulligan, he testified that, during the relevant time, he worked on the same jobs as Patterson, but
they did not work side-by-side. (KGSMF ¶ 6.) He also testified that he did not know what
products Patterson used, that he never saw Patterson use any Kaiser Gypsum sheetrock, but that
“everybody worked with Kaiser [Gypsum sheetrock].” (KGSMF ¶¶ 7-9; Ex. B to Kaiser
Gypsum’s Br., Deposition of William Mulligan, 40:2-4.) Mulligan did not identify Durametallic
or Union Carbide in his deposition. Frank identified “USG” and “Gold Bond” as joint
compound products that may have been used by Patterson, but he did not know for sure, and he
did not testify that either product mentioned contained asbestos supplied by Union Carbide.
(UCSMF ¶¶ 14-15, 15-16).2 Frank did not identify either of the other Defendants in his
deposition. (Ex. 7 to Union Carbide’s Br., Deposition of Herman Frank.)
II.

DISCUSSION
Summary judgment is appropriate where the Court is satisfied that “there is no genuine

dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”

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Union Carbide’s SMF includes two paragraph 15’s and two paragraph 16’s. Here, the court is referring to both the
first and second paragraph 15’s, and the second paragraph16.

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Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine dispute
of material fact exists only if the evidence is such that a reasonable jury could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When the Court
weighs the evidence presented by the parties, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.
The burden of establishing the nonexistence of a “genuine issue” is on the party moving
for summary judgment. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir.
1996). The moving party may satisfy its burden either by “produc[ing] evidence showing the
absence of a genuine issue of material fact” or by “‘showing’ – that is, pointing out to the district
court – that there is an absence of evidence to support the nonmoving party’s case.” Celotex,
477 U.S. at 325.
If the party seeking summary judgment makes this showing, it is left to the nonmoving
party to “do more than simply show that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, to
survive summary judgment, the nonmoving party must “make a showing sufficient to establish
the existence of [every] element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex, 477 U.S. at 322.
Even when the motion is unopposed, as it is here, the Court must still determine whether
the motion for summary judgment is appropriate. See Fed. R. Civ. P. 56(e). The Court must
review the unopposed record to determine if the defendant is entitled to judgment as a matter of
law, notwithstanding the plaintiff’s silence. See Anchorage Assoc. v. Virgin Islands Bd. of Tax
Rev., 922 F.2d 168, 175 (3d Cir. 1990).

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To prevail in an asbestos case, a plaintiff must establish exposure to friable asbestos
manufactured or distributed by the defendant, and that such exposure was a proximate cause of
the plaintiff’s disease. Sholtis v. American Cyanamid Co., 568 A.2d 1196, 1208 (N.J. Super. Ct.
App. Div. 1989). Moreover, a plaintiff must establish that exposure to a defendant’s asbestos
was “of sufficient frequency, with a regularity of contact, and with the product in close
proximity.” Id. at 1207. To survive a summary judgment motion, a plaintiff must “produce
evidence from which a fact-finder, after assessing the proof of frequency and intensity of
plaintiff’s contacts with a particular manufacturer’s friable asbestos, could reasonably infer toxic
exposure.” Id.
The Court finds that Plaintiffs have not produced sufficient evidence specifically
identifying Defendants as a manufacturer or distributor of asbestos-containing products that
Patterson was exposed to during the alleged time period. Even if Mulligan’s testimony that
Kaiser Gypsum was widely used, or Frank’s testimony as to USG and Goldbond, did raise an
issue of material fact as to whether Patterson was exposed to asbestos manufactured by these
Defendants, there is no evidence whatsoever to survive the “frequency, regularity and proximity”
test. See Provini v. Asbestospray Corp., 822 A.2d 627, 629-30 (N.J. Super. Ct. App. Div. 2003)
(“In an asbestos case, plaintiff must present prima facie evidence of ‘an exposure of sufficient
frequency, with a regularity of contact, and with the product in close proximity’ in order to hold
a defendant strictly liable. . . . The absence of such evidence warrants dismissal on summary
judgment.”) (citations omitted). For this reason, the motion for summary judgment has been
properly made and supported by Defendants.
III.

CONCLUSION
For the reasons stated herein, the Court will grant Defendants’ motions. An appropriate

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order shall issue.

Dated: 12/4/2014

s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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