FEASTER v. A.W. CHESTERTON COMPANY et al
Filing
74
OPINION. Signed by Magistrate Judge Karen M. Williams on 12/22/2015. (TH, )
NOT FOR PUBLICATION
[Doc. No. 38]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
SAMUEL R. FEASTER,
Plaintiff,
v.
Civil No. 14-3417 (KMW)
A.W. CHESTERTON COMPANY, et
al.,
OPINION
Defendants.
Michael B. Leh, Esq.,
Locks Law Firm, Philadelphia, PA, for Plaintiff
David S. Blow, Esq.,
Sedgwick LLP,
Newark, NJ for Defendant General Electric Company
WILLIAMS, Magistrate Judge
I. INTRODUCTION
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.
1-1.
See Compl., Doc. No.
Presently, before the Court is the Motion for Summary
Judgment filed by Defendant General Electric Company (“GE”) [Doc.
No. 38].
Plaintiff opposes this Motion.
1
For the reasons set forth
below,
the
Court
will
grant
Defendant’s
Motion
for
Summary
Judgment.
II.
BACKGROUND
A.
Facts
The Court accepts the following facts as true.1
Plaintiff
alleges injuries as a result of his exposure to asbestos-containing
products while working at New York Shipbuilding and Drydock Company
(“NY Ship”) in Camden, New Jersey and Sun Ship Yard (“Sun Ship”)
in Chester, PA.
GE’s Rule 56.1 Statement of Undisputed Material
Facts (“GE 56.1 Statement”) ¶ 2; Plaintiff’s Counter-Statement of
Material Facts (“Pl.’s Counter-Statement”) ¶ 2.
Plaintiff was
employed at NY Ship from 1958 to 1967 as a cleaner and his duties
included sweeping, scaling, sand blasting and general clean up of
debris on vessels at the shipyard.
GE 56.1 Statement ¶ 3.
As a
cleaner, Plaintiff cleaned in close proximity to other trades, and
cleaned up during and after the work of said trades, which exposed
him to asbestos contained in insulation materials.
Statement ¶¶ 4-5.
GE
56.1
Plaintiff identified two possible manufacturers
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.
2
1
of the insulation-Johns Manville and Owens Corning.
GE 56.1
Statement ¶ 6.
Moreover, while employed at NY Ship, Plaintiff worked on
several vessels, the USS Kitty Hawk, the NS Savannah, and the USS
Little Rock.
GE 56.1 Statement ¶ 7.
Plaintiff does not believe
that any of his work on the USS Kitty Hawk, nor the work of those
in his vicinity on the USS Kitty Hawk, caused him to be exposed to
asbestos. GE 56.1 Statement ¶ 10. With respect to the NS Savannah,
Plaintiff worked in the reactor room and on the decks and believes
he was exposed to asbestos from insulation in the pipes from the
reactor. GE 56.1 Statement ¶ 11; Plaintiff’s Deposition Transcript
(“Pl.
Tr.”)
180:4-18.
Similarly,
Plaintiff
attributes
his
asbestos exposure on the USS Little Rock to cleaning up pipe and
duct insulation in the engine and fire rooms, however, Plaintiff
was not sure of the brand.
GE 56.1 Statement ¶ 13; Pl. Tr. 183:6-
14.
At NY Ship, while performing sandblasting, Plaintiff worked
on ships and on the ground, but mostly on the ground.
101:4-9.
Pl. Tr.
Plaintiff does not know if he was exposed to asbestos by
virtue of his sandblasting duties.
was also responsible for sweeping.
Pl. Tr. 104:8-12.
Plaintiff
Plaintiff performed most of
his sweeping duties on ships; Plaintiff swept off ships too, but
that was only sometimes for a little job.
3
Pl. Tr. 104:13-21.
Plaintiff swept every day.
Pl. Tr. 105:4-7.
out to sea while employed with NY Ship.
Plaintiff
was
later
employed
at
Plaintiff also went
GE 56.1 Statement ¶ 36.
Sun
Ship
in
Chester,
Pennsylvania, as a cleaner, rigger trainee and as a rigger first,
second and third class.
GE 56.1 Statement ¶ 17; Pl. Tr. 167:5-8.
Riggers move and connect heavy machinery.
GE 56.1 Statement ¶ 18.
While employed at Sun Ship, Plaintiff worked on several ships and
believes he was exposed to asbestos from helping pipefitters with
valves; machinists with motors; and working with electricians,
machinist and insulator piper-fitters cutting and manipulating
insulation.
GE 56.1 Statement ¶ 19.
With regard to his duties as a cleaner at Sun Ship, Plaintiff
believes he was exposed to asbestos sweeping up in the boiler room
and the main steam pipes.
Pl. Tr. 168:2-22.
Plaintiff described
dusty conditions but attributed same to insulation, electrical
cuttings, tape, wood, and wires.
Pl. Tr. 168:2-169:7.
GE was not
identified as the manufacturer of any of the foregoing items.
Plaintiff also believes he was exposed to asbestos as a cleaner by
the insulators, who cut down insulation, and pipe fitters.
Tr. 171:3-14.
Pl.
Again, Plaintiff did not identify GE as having
manufactured the insulation.
As a rigger trainee, Plaintiff believes he was exposed to
asbestos in the engine and pump rooms helping pipe fitters with
4
valves and machinist with motors. Pl. Tr. 189:11-17.
When asked
who manufactured the motors he assisted with, Plaintiff testified:
“GE was in on a lot of things.
Tr. 191:3-4.
I'll say GE; familiar name.”
Pl.
Plaintiff also attributes his work in the engine
rooms tearing pipes and valves apart to his asbestos exposure.
Pl. Tr. 193:14-194:8.
As a rigger third-class, Plaintiff testified that he was
exposed to asbestos partly due to his work with machinists working
on the main engine, however, did not know who manufactured the
main engine or recall which ship the work was performed.
GE 56.1
Statement ¶ 20.
As a rigger second-class, Plaintiff testified that he was
exposed to asbestos while the pipe fitters or other outside vendors
opened up turbines and cut off the insulation.
Pl Tr. 215:17-25.
Plaintiff could not recall the ship he was on when the turbine was
opened up.
could
Pl. Tr. 216:20-25.
identify
the
Moreover, when asked if Plaintiff
manufacturer
of
the
turbine,
Plaintiff
responded: “Just, like I said, GE is a very common name; GE makes
everything.”
Pl. Tr. 217:2-6.
As a rigger first-class, Plaintiff
believes he was exposed to asbestos in the engine and boiler rooms.
Pl. Tr. 228:6-13.
Plaintiff independently recalled the name of one ship at Sun
Ship, the Callahan, wherein he testified about work performed on
5
a turbine; however, he did not know who manufactured the turbine.
GE 56.1 Statement ¶ 29; Pl. Tr. 362:25-363:3.
Additionally,
Plaintiff
indicates
he
was
present
engine room while pipefitters worked on turbines.
369:2.
in
the
Pl. Tr. 368:20-
Moreover, with regard to turbines, Plaintiff identified GE
as having done “a lot of it” but Plaintiff also indicates that he
could not recall the names of other turbine manufacturers.
Tr. 359:4-8.
Moreover, Plaintiff could not identify the name of
a single ship with a GE turbine in the engine room.
12.
Pl.
Pl. Tr. 359:9-
On the occasions where Plaintiff was in the engine room with
a GE turbine, the turbines where either being opened up and
inspected or taken out and sent to the machine shop.
Pl. Tr.
359:17-360:3.
Plaintiff had a specific recollection of a turbine
being
and
opened
he
indicated
surrounding the turbine.
that
there
was
Pl. Tr. 359:24-360:25.
no
insulation
Plaintiff also
recalls being aboard a ship where a GE turbine was being removed
but could not recall the name of the ship.
Plaintiff
identified
(however,
Plaintiff
GE
as
used
the
the
6
361:2-7.
manufacturer
terms
of
motor
Additionally,
steam
and
motors
turbine
interchangeably) and indicated that same were insulated with block
and cement--manufacturer unknown.
GE 56.1 Statement ¶ 33.2
Plaintiff admits that in three days of testimony, there is no
testimony regarding a brittle, crumbly, or flaky insulation, nor
any testimony about dusty conditions in the context of GE’s
turbines or motors at either Sun Ship or NY Ship. GE 56.1 Statement
¶ 42; Pl.’s Counter-Statement ¶ 42.
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 and General Electric Company pursuant
to 28 U.S.C. §§ 1442(a)(1) and 1446.
[Doc. No. 1].
Id. ¶ 2; Notice of Removal
Plaintiff passed away on April 6, 2015.
Id. ¶ 4.
III. STANDARD OF REVIEW
Plaintiff denies this fact stating that Plaintiff described the block and
cement insulation as contained in the turbines and motors, however, Plaintiff
testified:
Q. Where was the asbestos located on a steam motor?
A. Outside casing cover, insulate the outside casing.
Q. What shape or form did the insulation come in?
A. Usually form of blocks or whatever, and then they cut them and fit
them in in pieces. Then they mix up asbestos in a mud and put the mud
on there. Smooth it all in. Make it, you know, nice. Then they put
a cloth over it.
2
Pl. Tr. 371:15-372:2.
7
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
nonmoving party.’”
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
material fact.
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.’’”
Id. (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)).
Finally, all evidence shall be construed, and all
reasonable inferences drawn, in the light most favorable to the
nonmoving party.
IV.
Id.
DISCUSSION
8
Defendant GE is entitled to summary judgment because maritime
law is applicable to Plaintiff’s claims regarding GE and, pursuant
to maritime law, Plaintiff has failed to provide any evidence that
he was exposed to asbestos from a product manufactured or otherwise
supplied by GE.
A. Applicability of Maritime Law
First, the Court must address the applicability of maritime
law.
Defendant
argues
that
maritime
law
applies
because
Plaintiff’s asbestos exposure occurred while onboard naval and
non-naval vessels in port or dry docked at the shipyards where he
was employed.
For the first time, during oral argument, Plaintiff
argued that maritime law does not apply to Plaintiff’s claim
because he was a shipyard worker.
Plaintiff argues that the
court’s analysis in Connor v. Alfa Laval, Inc., 799 F. Supp. 2d
455 (E.D. Pa. 2011) is persuasive on this issue because Judge
Robreno
distinguished
the
exposure
of
a
land-based
shipyard
machinist, Tina Willis, from the exposure of those who served in
the Navy aboard ships. In Connor, Judge Robreno found that neither
the locality nor connection test was met
principally a land-based shipyard worker.
because Willis was
799 F. Supp. 2d at 467-
69.
Subsequent to Connor, Judge Robreno has addressed the issue
of the applicability of maritime law in numerous opinions and,
9
accordingly, has succinctly set forth the standard to determine
the applicability of same.
In Deuber v. Asbestos Corp., Judge
Robreno stated:
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 seabased) 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,
(such as work performed at a machine shop in the
shipyard, for example, as was the case with the Willis
plaintiff discussed in Conner) is land-based 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.’”
Locality Test
If a service member in the Navy performed some work at
shipyards (on land) or docks (on land) as opposed to
onboard a ship on navigable waters (which includes a
ship docked at the shipyard), “the locality test is
satisfied as long as some portion of the asbestos
exposure occurred on a vessel on navigable waters.” If,
however, the worker never sustained asbestos exposure
onboard a vessel on navigable waters, then the locality
test is not met and state law applies.
Connection Test
When a worker whose claims meet the locality test was
primarily sea-based during the asbestos exposure, those
claims will meet the connection test necessary for the
application of maritime law.
But if the worker's
exposure was primarily land-based, then, even if the
claims could meet the locality test, they do not meet
the connection test and state law (rather than maritime
law) applies.
10
In instances where there are distinct periods of
different types (e.g., sea-based versus land-based) of
exposure, the Court may apply two different laws to the
different types of exposure.
No. 2:10-CV-78931, 2011 WL 6415339, at *1 (E.D. Pa. Dec. 2,
2011)(internal
citations
omitted).
Notably,
in
Deuber,
the
plaintiff was alleging that his asbestos exposure was attributed
to his work as a rigger while working with valves for use aboard
ships at the Philadelphia Naval Shipyard.
Id.
The court found
that maritime law applied because it was clear that the work
performed at the shipyard resulting in the alleged exposure was
from work done aboard docked ships as opposed to in other areas of
the shipyard.
Id.
The court rejected plaintiff’s argument that
the injury did not occur on navigable waters because the vessels
at issue were being constructed at the facility finding that the
alleged exposure occurred aboard ships docked at the shipyard, and
thus, was sea-based work.
Id.
Here, the Court finds that there is sufficient evidence in
the record establishing that any exposure alleged by Plaintiff
with regard to GE occurred primarily from being aboard ships at
the shipyard, thus, maritime law applies to his claims regarding
GE.
In this case, the Court finds that the facts in Deuber, rather
than the facts set forth regarding the Willis Plaintiff in the
Connor case, to be similar to the facts in this case.
11
Plaintiff’s
testimony regarding GE turbines establishes that he encountered
the turbines in the engine room aboard various ships.
Indeed,
even when the turbines were being removed from the ships, they
were
being
removed
from
the
engine
room
of
the
vessel.
Additionally, Plaintiff was present in the engine room while
pipefitters worked on turbines.
Additionally, in terms of Plaintiff’s employment at NY Ship,
Plaintiff worked on ships daily.
One of the Plaintiff’s main
duties at NY Ship was sweeping and he swept every day.
Indeed,
the record reflects that Plaintiff performed most of his sweeping
duties on the ships and only swept off the ship sometimes for
little jobs.
Similarly, at Sun Ship, Plaintiff encountered GE turbines
while in the engine room aboard ships.
Thus, any alleged exposure
resulting from GE turbines would have primarily occurred aboard a
ship that had come in for maintenance or repair.
Moreover,
Plaintiff went out to sea on ships that he worked on while employed
at NY Ship and Sun Ship.
Thus, unlike the Willis plaintiff in Connor whose exposure
was
primarily
attributed
to
his
land-based
work,
the
record
establishes that the Plaintiff here, like the Deuber plaintiff,
encountered GE turbines in the engine rooms aboard ships. As such,
the locality test would be satisfied because at least some portion
12
of the alleged exposure occurred on a vessel on navigable waters
which includes vessels that were docked or dry-docked at the
shipyard.
Deuber, 2011 WL 6415339 at *1.
Moreover, as stated in
Deuber, because the sea-based claims of alleged asbestos exposure
meet the locality test, same will “meet the connection test
necessary for application of maritime law.”
Id.
Consequently,
maritime law applies to Plaintiff’s claims against GE.
B. Causation under Maritime Law
“[U]nder maritime law, to establish causation in an asbestos
case, ‘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.’”
Thomasson
v. Air & Liquid Systems Corp., No. 13-1034, 2015 WL 1639730, at *3
(D.N.J. April 9, 2015)(citing Lindstrom v. A-C Prod. Liab. Trust,
434 F.3d 488, 492 (6th Cir. 2005)).
Plaintiff is also required to
show that defendant manufactured or distributed the asbestoscontaining product to which exposure is alleged.
Id.
Plaintiff
must show more than minimum exposure or that the product was merely
present at his or her place of work.
Id.
Plaintiff must show
that the product was a substantial factor in causing the injury by
demonstrating “a high enough level of exposure that an inference
that the asbestos was a substantial factor in the injury is more
than conjectural.”
Id.
13
Here, Plaintiff’s claims against GE fail because there is no
evidence
in
the
record
establishing
that
GE
manufactured
or
distributed the asbestos-containing product to which exposure is
alleged.
Simply
put,
the
record
establishes
that
Plaintiff
attributes his asbestos exposure to the insulation surrounding GE
turbines,
however,
there
is
no
evidence
manufactured the insulation on GE turbines.
there
is
no
evidence
distributed same.3
establishing
that
identifying
who
More importantly,
GE
manufactured
or
Similarly, there is no evidence that GE’s
turbines and/or motors contained asbestos.4
For these reasons, on
this record, there is no available inference that these GE turbines
contained asbestos or that the insulation on the turbines were
manufactured
or
supplied
by
GE.
Thus,
summary
judgment
is
appropriate.
C. New Jersey Law
Indeed, GE states that it would not have specified, manufactured, supplied
or installed thermal insulation for its turbines. GE 56.1 Statement ¶ 41.
Plaintiff simply denies this fact without directing the Court to evidence
establishing otherwise. Pl.’s Counter-Statement” ¶ 41. Thus, same is deemed
undisputed.
4 Moreover, Plaintiff admits that in three days of testimony, there is no
testimony regarding a brittle, crumbly, or flaky insulation, nor any
testimony about dusty conditions in the context of GE’s turbines or motors at
either Sun Ship or NY Ship. GE 56.1 Statement ¶ 42; Pl.’s Counter-Statement
¶ 42. Thus, giving all reasonable inferences to Plaintiff, there appears to
be no evidence that Plaintiff was actually exposed to asbestos in the context
of GE’s turbines and/or motors.
14
3
Here, even if the Court were to find that Plaintiff’s claims
against GE are governed by New Jersey law, summary judgment would
still be appropriate.
New Jersey law, 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.”
Sholtis 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,
establish[ing]
exposure and plaintiff's condition.’”
at *3.
a
nexus
between
the
Thomasson, 2015 WL 1639730,
As set forth above, this record does not establish that
Plaintiff was exposed to a GE asbestos-containing product and there
is no record evidence, and indeed same was admitted by Plaintiff,
describing the existence of friable asbestos in the context of a
GE turbine and/or motor.
Plaintiff argues that under New Jersey law GE would be liable
based on its failure to warn Plaintiff of dangers associated with
its product.
Moreover, recognizing that the New Jersey Supreme
15
Court has yet to decide a failure to warn asbestos case, Plaintiff
argues that this Court must predict how said court would decide
this issue.
It is true that federal courts would look to the New
Jersey Supreme Court to decide issues of substantive state law.
Aetna Cas. & Sur. Co. v. Farrell, 855 F.2d 146, 148 (3d Cir. 1988).
“In the absence of an authoritative pronouncement by a state's
highest court, we may give serious consideration to the opinion of
an intermediate appellate court.”
Id.
Thus, pursuant to Aetna’s
dictates, the Court looks to Hughes v. A.W. Chesterton Co., 435
N.J. Super. 326, 331 (App. Div. 2014), cert. denied, 220 N.J. 41
(2014), for an indication of how the New Jersey Supreme Court would
decide this failure to warn issue.5
In Hughes, the court held “in
an asbestos failure to warn claim that liability may attach only
where
a
plaintiff
identifies
an
asbestos-containing
product
manufactured or supplied by defendant.” Shearer v. A.W. Chesterton
Co.,
No.
13-5887,
2015
WL
3889366,
at
*3
2015)(citing Hughes, 435 N.J. Super. at 345).
(D.N.J.
June
24,
Thus, for the same
reasons set forth above, Plaintiff’s claims against GE would fail
because
Plaintiff
has
not
identified
an
asbestos-containing
product manufactured or supplied by GE.
V. CONCLUSION
Plaintiff criticizes the Hughes decision indicating that same was decided
wrong but this Court is entitled to give serious consideration to Hughes.
16
5
Consequently, Defendant GE’s Motion for summary judgment is
granted.6
An accompanying Order will be entered.
Date: December 22, 2015
s/ Karen M. Williams
KAREN M. WILLIAMS
UNITED STATES MAGISTRATE JUDGE
Accordingly, the Court need not address Defendant’s arguments regarding the
government contractor defense.
17
6
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