FEASTER v. A.W. CHESTERTON COMPANY et al
OPINION. Signed by Magistrate Judge Karen M. Williams on 12/3/2015. (dmr)
NOT FOR PUBLICATION
[Doc. Nos. 35, 36, 40]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
SAMUEL R. FEASTER,
Civil No. 14-3417 (KMW)
A.W. CHESTERTON COMPANY, et
James J. Pettit, Esq.,
Law Offices of James J. Pettit,
Marlton, NJ for Plaintiff
Michael B. Leh, Esq.,
Locks Law Firm, Philadelphia, PA, for Plaintiff
John C. Garde, Esq.,
McCater & English, LLP,
Newark, NJ for Defendant Owens-Illinois, Inc.
Thomas B. McNulty, Esq.,
McGivney & Kluger, P.C.,
Florham Park, NJ for Defendant Durametallic Corporation
Matthew P. Kessler, Esq.,
McGivney & Kluger, P.C.,
Florham Park, NJ for Defendant Brand Insulations, Inc.
WILLIAMS, Magistrate Judge
In this action, Plaintiff Samuel R. Feaster (“Plaintiff” or
“Feaster”) alleges he contracted mesothelioma while employed at
New York Shipbuilding and Drydock Company in Camden, New Jersey,
and Sun Ship Yard in Chester, Pennsylvania.
See Compl., Doc. No.
Presently, before the Court are three separate Motions for
Summary Judgment filed by Defendants Owens-Illinois Inc. (“OwensIllinois”) [Doc. No. 35], Brand Insulations Inc. (“Brand”) [Doc.
No. 36], and Durametallic Corp. (“Durametallic”) [Doc. No. 40].
By letter dated June 23, 2015, Plaintiff advised that he would not
oppose the Motions filed by Durametallic, A.W. Chesterton Company1,
Foster Wheeler, Westinghouse, Owens-Illinois, and Brand.
Pl.’s Letter, Jun. 23, 2015, Doc. No. 54.
For the reasons set
forth below, the Court will grant Defendants’ Motions for Summary
As set forth above, Plaintiff has not opposed Defendants’
Motions nor has he submitted a responsive statement of material
As such, the facts set forth in Defendants’ statements of
A Stipulation and Order of Dismissal was entered as to A.W. Chesterton on
May 22, 2015.
2 In this District, motions for summary judgment shall include a statement of
material facts not in dispute. L. Civ. R. 56.1(a). In opposing a summary
judgment motion, the nonmoving party shall state which material facts are in
dispute and support same with appropriate citations to the record. Id.
“[A]ny material fact not disputed shall be deemed undisputed for purposes of
the summary judgment motion.” Id.
Therefore, the Court accepts the following undisputed facts as
Plaintiff alleges injuries as a result of his exposure to
asbestos-containing products while working as a cleaner at New
York Shipbuilding and Drydock Company in Camden, New Jersey, and
as a rigger at Sun Ship Yard in Chester, Pennsylvania.
Illinois 56.1 Statement”) ¶ 1.
Plaintiff was deposed for three
days, on May 8, May 15, and May 28, 2014.
Id. at ¶ 6.
containing insulation while employed at New York Shipbuilding and
Id. at ¶ 7.
The only insulation manufacturers
identified by Plaintiff were Owens-Corning Fiberglass Corporation
Id. at ¶ 8.
With respect to Owens-Illinois,
the only asbestos-containing insulation product manufactured, sold
and/or distributed by Owens-Illinois had the trade name “Kaylo.”
Id. at ¶ 11; Affidavit of Susan J. Gibbons (“Gibbons Aff.”) ¶ 2a,
Plaintiff was shown the Owens-Illinois Kaylo insulation
label and he testified that he did not recognize Kaylo insulation
and did not recall seeing Kaylo products at any of the shipyards
where he was employed.
Id. at ¶ 9.
Owens-Illinois sold its Kaylo
division to Owens-Corning Fiberglass Corporation on April 30, 1958
and, thereafter, did not manufacture, sell, and/or distribute any
asbestos-containing Kaylo insulation products.
Id. at ¶ 12-13;
Gibbons Aff. ¶ 2c.
Similarly, Plaintiff did not identify Defendant Brand or
Durametallic as a source of his asbestos exposure. Brand Statement
Statement”) ¶ 8; Durametallic Statement of Uncontested Materials
Pursuant to Rule 56.1 (“Durametallic 56.1 Statement”) ¶ 7.
B. Procedural History
On or about December 31, 2013, Plaintiff filed this action in
the Middlesex County Superior Court.
Statement ¶ 1.
See Owens-Illinois’s 56.1
On or about May 30, 2014, this action was removed
to the United States District Court for the District of New Jersey
by Defendants Foster Wheeler Corp. and General Electric Company
pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446.
Removal [Doc. No. 1].
Id. ¶ 2; Notice of
Plaintiff passed away on April 6, 2015.
Id. ¶ 4.
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.”
Fed. R. Civ. P.
56(a). “A fact is ‘material’ under Rule 56 if its existence or
nonexistence might impact the outcome of the suit under the
applicable substantive law.”
Santini v. Fuentes, 795 F.3d 410,
416 (3d Cir. 2015)(citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)).
Moreover, “[a] dispute over a material fact
is ‘genuine’ if ‘a reasonable jury could return a verdict for the
Id. (quoting Anderson, 477 U.S. at 249).
The moving party bears the burden of identifying portions of
the record that establish the absence of a genuine issue of
Id. (citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)).
The burden then “shifts to the nonmoving party
to go beyond the pleadings and ‘come forward with ‘specific facts
showing that there is a genuine issue for trial.’’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
Finally, all evidence shall be construed, and all
reasonable inferences drawn, in the light most favorable to the
entitled to summary judgment because Plaintiff has failed to adduce
Plaintiff was exposed to on a frequent and regular basis.
regard, the Court applies New Jersey law which, in an asbestos
case, requires that the Plaintiff first establish, “in addition to
other elements of a product liability action, exposure to friable
asbestos manufactured or distributed by the defendant.”
v. Am. Cyanamid Co., 238 N.J. Super. 8, 30 (App. Div. 1989).
Additionally, to defeat summary judgment, plaintiff must 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[,]’
as well as ‘competent evidence, usually supplied by expert proof,
Thomasson v. Air & Liquid Sys. Corp., No. 13-1034,
2015 WL 1639730, at *3 (D.N.J. Apr. 9, 2015).
Here, the Court need not discuss whether there is evidence
establishing Plaintiff’s level of contact with asbestos or an
asbestos-containing product because Plaintiff has failed to adduce
any evidence identifying any of the aforementioned Defendants as
containing products to which Plaintiff claims exposure.
2015 WL 1639730, at *3 (“to prevail on a tort claim for asbestos
exposure, plaintiff must identify an asbestos-containing product
testified that he was exposed to asbestos-containing insulation
through his work on the various ships, each Defendants’ uncontested
56.1 Statements provide that Plaintiff did not identify OwensIllinois, Brand, or Durametallic as a source of his asbestos
Indeed, Defendant Owens-Illinois showed Plaintiff its
containing thermal insulation product manufactured, sold, and/or
distributed by Owens-Illinois, and Plaintiff indicated that he did
not recall seeing said product at any of the ships and/or shipyards
where he was employed.
Thus, the failure of Plaintiff to adduce
any evidence establishing that he was exposed to the asbestoscontaining products manufactured, sold, and/or distributed by these
Defendants is fatal to Plaintiff’s claims against said Defendants
and, thus, summary judgment is appropriate.
Durametallic, Motions seeking summary judgment are granted.
accompanying Order will be entered.
Date: December 3, 2015
s/ Karen M. Williams
KAREN M. WILLIAMS
UNITED STATES MAGISTRATE JUDGE
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